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Will the SCotUS incorporate the 2nd amendement against the states?

See OP for 2-pat question


  • Total voters
    17
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The reason I don't believe that the 2nd Amendment applies to regular citizens is this:


.


One of the many reasons I do think it applies to individuals is this:


Benjamin Franklin: Those who would give up essential liberty to purchase a little temporary
safety, deserve neither liberty nor safety." (Nov 11 1755, from the Pennsylvania Assembly's reply to
the Governor of Pennsylvania.)

Thomas Jefferson: "Laws that forbid the carrying of arms...disarm only those who are neither
inclined or determined to commit crimes
. Such laws only make things worse for the assaulted and
better for the assassins; they serve to encourage than to prevent homicides, for an unarmed man
may be attacked with greater confidence than an armed man." (1764 Letter and speech from T.
Jefferson quoting with approval an essay by Cesare Beccari)

John Adams: "Arms in the hands of citizens may be used at individual discretion in private self
defense."
(A defense of the Constitution of the US)

George Washington: "Firearms stand next in importance to the Constitution itself. They are the
people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than
99% of them [guns] by their silence indicate that they are in safe and sane hands. The very
atmosphere of firearms everywhere restrains evil interference [crime]. When firearms go, all goes,
we need them every hour
." (Address to 1st session of Congress)

George Mason: "To disarm the people is the most effectual way to enslave them." (3 Elliot,
Debates at 380)

Noah Webster: "Before a standing army can rule, the people must be disarmed, as they are in
almost every country in Europe." (1787, Pamphlets on the Constitution of the US)

George Washington: "A free people ought to be armed." (Jan 14 1790, Boston Independent
Chronicle.)

Thomas Jefferson: "No free man shall ever be debarred the use of arms." (T. Jefferson papers,
334, C.J. Boyd, Ed. 1950)

James Madison: "Americans have the right and advantage of being armed, unlike the people of
other countries, whose people are afraid to trust them with arms." (Federalist Paper #46)

On what is the militia:

George Mason: "I ask you sir, who are the militia? They consist now of the whole people." (Elliott,
Debates, 425-426)

Richard Henry Lee: "A militia, when properly formed, are in fact the people themselves...and
include all men capable of bearing arms
." (Additional letters from the Federal Farmer, at 169, 1788)

James Madison: "A WELL REGULATED militia, composed of the people, trained to arms, is the
best and most natural defense of a free country." (1st Annals of Congress, at 434, June 8th 1789,
emphasis added.

IMPORTANT NOTE: Back in the 18th century, a "regular" army meant an army that had
standard military equipment. So a "well regulated" army was simply one that was "well equipped." It
does NOT refer to a professional army. The 17th century folks used the term "STANDING Army"
to describe a professional army. THEREFORE, "a well regulated militia" only means a well equipped
militia. It does not imply the modern meaning of "regulated," which means controlled or administered
by some superior entity. Federal control over the militia comes from other parts of the Constitution,
but not from the second amendment. (my personal opinion)

Patrick Henry: "The people have a right to keep and bear arms." (Elliott, Debates at 185)

Alexander Hamilton: "...that standing army can never be formidable (threatening) to the liberties
of the people, while there is a large body of citizens, little if at all inferior to them in the use of arms."
(Federalist Paper #29)

"Little more can be aimed at with respect to the people at large than to have them properly armed
and equipped."
(Id) {responding to the claim that the militia itself could threaten liberty}" There is
something so far-fetched, and so extravagant in the idea of danger of liberty from the militia that one
is at a loss whether to treat it with gravity or raillery (mockery). (Id)
 
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One of the many reasons I do think it applies to individuals is this:




On what is the militia:

Personally I don't subscribe to an originalist interpretation of the Constitution. So I will respectfully disagree with you.
 
Personally I don't subscribe to an originalist interpretation of the Constitution. So I will respectfully disagree with you.

So . . . your idea of Constitutional interpretation is making up things out of whole cloth to get it to mean what you want it to mean? That's what the passage you quoted does.
 
Personally I don't subscribe to an originalist interpretation of the Constitution. So I will respectfully disagree with you.


Ah. So, it means whatever you say it means then?

Or whatever is expedient? Pragmatic?

If so, we may as well not have a Constitution. The alternative, btw, is a government whose powers are all but unlimited.
 
The Constitution is in English, it does not need to be interpreted , it needs to be obeyed by any and all government entities on U.S. soil.
 
So . . . your idea of Constitutional interpretation is making up things out of whole cloth to get it to mean what you want it to mean? That's what the passage you quoted does.

No, I believe that the Constitution should be interpreted in the context of the here and now, not in the image of a world that is dead and gone.
 
The Constitution is in English, it does not need to be interpreted , it needs to be obeyed by any and all government entities on U.S. soil.

Even original intent is an interpretation. The Constitution is vague, it does not attempt to cover every eventuality. Interpretation is a must.
 
No, I believe that the Constitution should be interpreted in the context of the here and now, not in the image of a world that is dead and gone.

Which is the same thing. If the words change meaning according to whomever's reading them, then they mean nothing at all.
 
Which is the same thing. If the words change meaning according to whomever's reading them, then they mean nothing at all.

The words are vague for the very reason that as society changes so will the application of those words. Modernist interpretations by the courts are not made arbitrarily and there are some restrictions on the courts in order to ensure that they do not overstep their bounds.
 
The words are vague for the very reason that as society changes so will the application of those words.

They aren't so vague.

In some cases, they are general. But they aren't "vague." There are those who say they're vague simply so they can divine any meaning they want.

Again, if they mean anything, they mean nothing.


Modernist interpretations by the courts are not made arbitrarily

Oh, in many cases, indeed they are. The 2nd Amendment debate is a great example. The 6th Circuit declared (US v. Warin) that the 2nd Amendment applies to the states and not individuals and gave no real reasoning for it; they just declared it. Then, almost every other Circuit Court simply cited Warin as their backup for declaring the same thing. So, you have all sorts of court cases that cite nothing but each other as their Constitutional basis.


and there are some restrictions on the courts in order to ensure that they do not overstep their bounds.

Not on any practical level there aren't.
 
The words are vague for the very reason that as society changes so will the application of those words. Modernist interpretations by the courts are not made arbitrarily and there are some restrictions on the courts in order to ensure that they do not overstep their bounds.

To extend this viewpoint to its logical conclusion...

If the USC were interpreted that "Freedom of speech" meant only the spoken word, and "freedom of the press" only applied to text printed on paper, in the context of modern society, you'd accept that as valid?

If it was determined that the States could establish state religions and restrict other religions, since the 1A originally only restrained the Feds as some postulate?

It it was found that the printing of fill-in-the-blank warrants, enabling police to essentially search anyone and anything anytime they felt like it, was not a violation of the 4th Amendment "because we need it to fight crime in the modern nation", you'd accept that?

You see my point? If the Constitution is as flexible as a rubber band, then potentially all the restraints could come off.

G.
 
Even original intent is an interpretation.

Simply false. The words mean what they mean and the wording is not vague but extrememly explicit, as the founders knew exactly what they were about.
 
Simply false. The words mean what they mean and the wording is not vague but extrememly explicit, as the founders knew exactly what they were about.

I generally agree with this approach, but this is absolutely an overstatement. How can you argue that the language of the Constitution is "extremely explicit"? Think about the literally millions of legal questions that need to be answered - you think the Constitution has an answer for all of them?
 
Even original intent is an interpretation. The Constitution is vague, it does not attempt to cover every eventuality. Interpretation is a must.

No.

In most areas the Constition is painfully explicit.

"the right of THE PEOPLE to keep AND BEAR arms SHALL NOT BE INFRINGED" is not open to debate.

Nor has any technological advance altered the meaning of this Amendment. Frankly, as technology has advanced, the interpretation of other aspects of the Constitution has expanded to protect the freedoms of the people, hence, the First Amendment covers the Internet, and radio, and television, even though none of that could have been imagined by any of the Founding Fathers. Similarly, the concept of "cartridges", is a self-contained device including the primer, the power, and the bullet that enabled multiple firings without reloading, and the subsequent development of fully automatic firing weapons are merely advances acceptable to the original intent of the Second Amendment.

Not to mention the fact that no one challenged the Second Amendment after all these devices had been invented, not until the mid-thirties. What magical event happened to suddenly alter the landscape then?

Nothing.

After all, the intent of the Second Amendment is to make sure the people had within thier immediate reach the tools to shoot uppity politicians.
 
No.

In most areas the Constition is painfully explicit.

"the right of THE PEOPLE to keep AND BEAR arms SHALL NOT BE INFRINGED" is not open to debate.

Nor has any technological advance altered the meaning of this Amendment. Frankly, as technology has advanced, the interpretation of other aspects of the Constitution has expanded to protect the freedoms of the people, hence, the First Amendment covers the Internet, and radio, and television, even though none of that could have been imagined by any of the Founding Fathers. Similarly, the concept of "cartridges", is a self-contained device including the primer, the power, and the bullet that enabled multiple firings without reloading, and the subsequent development of fully automatic firing weapons are merely advances acceptable to the original intent of the Second Amendment.

Not to mention the fact that no one challenged the Second Amendment after all these devices had been invented, not until the mid-thirties. What magical event happened to suddenly alter the landscape then?

Nothing.

After all, the intent of the Second Amendment is to make sure the people had within thier immediate reach the tools to shoot uppity politicians.

Interestingly enough the government does regulate the public airwaves eg Janet Jackson's nipple slip at the Super Bowl.
 
No.

In most areas the Constition is painfully explicit.

"the right of THE PEOPLE to keep AND BEAR arms SHALL NOT BE INFRINGED" is not open to debate.

The fact that you do not perceive nuance does not mean it is not there.

It's just absurd to argue that much of anything in the Constitution is "painfully explicit."

If you disagree, please explain the "painfully explicit" meanings of the following clauses:

1. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

2. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

3. "No person shall...be deprived of life, liberty, or property, without due process of law"

If you could come up with a comprehensive and cogent explanation of each in less than 1,000 pages, you'd have a bright future ahead of you in writing legal textbooks.
 
I generally agree with this approach, but this is absolutely an overstatement. How can you argue that the language of the Constitution is "extremely explicit"?

Because it is.

Think about the literally millions of legal questions that need to be answered - you think the Constitution has an answer for all of them?

The constitution is a set of rules for government to follow, not citizens.

Those millions of legal questions ? Legal = Legislative, not constitutional, and between citizens, not Congress and the POTUS.
 
1. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

No official state church. No laws that prohibit religious liberty.


2. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

Reasonable, meant that you have a reason, I.E. a warrant. Not surprising this was clipped.

3. "No person shall...be deprived of life, liberty, or property, without due process of law"

No arresting without showing a judge probable cause, no killing or imprisoning or fining without a trial.
 
Because it is.

The constitution is a set of rules for government to follow, not citizens.

Those millions of legal questions ? Legal = Legislative, not constitutional, and between citizens, not Congress and the POTUS.

wtf? Legal quite frequently means constitutional and involves Congress/Potus. I don't know where you're coming up with this.

No official state church.

What qualifies as an official state church? Any gov funding for sectarian institutions? Prayer in public schools? Can gov favor one religion to another? Religion to non-religion?

No laws that prohibit religious liberty.

How do you define this? What about people who don't believe in Social Security (Amish)? People who don't believe in supporting war with their taxes (quakers)? People who believe in marrying multiple wives? People who believe in taking spiritual hallucinogens?

Reasonable, meant that you have a reason, I.E. a warrant. Not surprising this was clipped.

What constitutes a search? Are you saying there are no cases that anything can happen without a warrant? What constitutes a seizure? How long does a detainment have to be? Can someone be searched after arrest? What exceptions are there for exigent circumstances? Do you need a warrant to arrest?

No arresting without showing a judge probable cause,

I'm hoping that you just misspoke and didn't mean to say that police have to go prove probable cause to a judge before they can arrest someone who they observe committing a crime.

no killing or imprisoning or fining without a trial.

What kind of trial? What safeguards are in place? What about bail? What about governmental takings? What about seizures? What about temporary deprivations?


These things are far more complex than you're making them out to be, and you know that. For generations, people far smarter than you or I have struggled over these exact issues. The claim that you've got it figured out and everyone else is just mistaken does not really fly.
 
They aren't so vague.

In some cases, they are general. But they aren't "vague." There are those who say they're vague simply so they can divine any meaning they want.

Again, if they mean anything, they mean nothing.
They may be general but they are also vague. In many clauses, the explicit meaning is not enumerated. For example, the 8th Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
What is considered excessive? What constitutes cruel and unusual punishment?
This is vague, the Framers did not explicitly list what does and does not fall into those categories.

Oh, in many cases, indeed they are. The 2nd Amendment debate is a great example. The 6th Circuit declared (US v. Warin) that the 2nd Amendment applies to the states and not individuals and gave no real reasoning for it; they just declared it. Then, almost every other Circuit Court simply cited Warin as their backup for declaring the same thing. So, you have all sorts of court cases that cite nothing but each other as their Constitutional basis.
Courts cannot just 'declare' anything. You may not like a court's reasoning, but that doesn't mean that they don't have any.

Not on any practical level there aren't.
Sure there is.
Courts do not have their own enforcement mechanisms, they must rely upon the Executive Branch to implement their decisions. If they don't feel that the Executive Branch is likely to comply, more than likely they won't rule in a certain way.
Secondly, Congress has the power to revoke a courts appellate jurisdiction for any case at any time. If Congress does not want a court to rule on a particular case it can remove its jurisdiction, even if the case is sub judice.
Thirdly, in general, Court's must pay due deference to stare decisis.
In addition, Congress has the power to amend the Constitution. If Congress does not agree with a judicial decision, it can choose to change the Constitution so that such an interpretation cannot be made again. Congress has already done this in at least 4 cases.
 
Simply false. The words mean what they mean and the wording is not vague but extrememly explicit, as the founders knew exactly what they were about.

Have you read the Constitution? It is far from extremely explicit. Original intent assumes that the intent of the Framers is the only thing that matters. It's still an interpretation because intent is not included in the law itself.
 
The constitution is a set of rules for government to follow, not citizens.

The Constitution is a framework, without a lot of detail, hence why the writers are called FRAMERS.
 
wtf? Legal quite frequently means constitutional and involves Congress/Potus. I don't know where you're coming up with this.

The constitution is rules for the government to follow. Most of your "millions", of legal questions, simply are not about the government's inner workings, and have to do with legislation.

How do you define this? What about people who don't believe in Social Security (Amish)?

Social Security Withholding law is not a law prohibiting Amishism.

Render unto Caesar.

People who believe in marrying multiple wives? People who believe in taking spiritual hallucinogens?

None of the government 's business. The U.S. invasion of Utah was possibly the most un-American thing the U.S. government ever did.

What constitutes a search? Are you saying there are no cases that anything can happen without a warrant?

It is not me saying it, it is the fourth amendment.

I'm hoping that you just misspoke and didn't mean to say that police have to go prove probable cause to a judge before they can arrest someone who they observe committing a crime.

If they observe the crime being committed, which is very, very rare, then they can intervene on the side of the victim, and make an arrest based on that victim's complaint.

These things are far more complex than you're making them out to be, and you know that.
No, they are not. Most of the things you mention have to do with state law, and that too is provided for in the constitution. So long as the State's law, does not violate it's citizens constitutional rights, or the constitution of the particlar state, then it is up to those state legislators involved.

The claim that you've got it figured out and everyone else is just mistaken does not really fly.

The founders had it figured out, not me.
 
They may be general but they are also vague. In many clauses, the explicit meaning is not enumerated. For example, the 8th Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
What is considered excessive? What constitutes cruel and unusual punishment?
This is vague, the Framers did not explicitly list what does and does not fall into those categories.

That would be general, not vague, though I was referring more to the enumerated powers of the government.


Courts cannot just 'declare' anything. You may not like a court's reasoning, but that doesn't mean that they don't have any.

It does when they don't.

I gave an example. However, I missed a step when I did. The court in Warin simply declares that there is no individual right to firearm ownership. For that, they cite their own declaration of the same in Stevens v. United States. Stevens says Miller v. United States declares there is no individual right, but cites absolutely no language in Miller which says this (because there isn't any); the Court just declares it to be so out of whole cloth.

That isn't "reasoning." That's just making something up. And in this case, just plain lying about it.

Sure there is.
Courts do not have their own enforcement mechanisms, they must rely upon the Executive Branch to implement their decisions. If they don't feel that the Executive Branch is likely to comply, more than likely they won't rule in a certain way.
Secondly, Congress has the power to revoke a courts appellate jurisdiction for any case at any time. If Congress does not want a court to rule on a particular case it can remove its jurisdiction, even if the case is sub judice.
Thirdly, in general, Court's must pay due deference to stare decisis.
In addition, Congress has the power to amend the Constitution. If Congress does not agree with a judicial decision, it can choose to change the Constitution so that such an interpretation cannot be made again. Congress has already done this in at least 4 cases.

I said there are no restrictions on a practical level. This is all well in good in theory, but in practice, it doesn't work this way. Courts rule simply what they want to rule all the time. Stare decisis is decisis until, well, they don't feel like following it anymore.

Spend some time reading through a bunch of meaty dissents, and you'll see exactly what I'm talking about.
 
The constitution is rules for the government to follow. Most of your "millions", of legal questions, simply are not about the government's inner workings, and have to do with legislation.

Link? Try looking at a federal docket some time and tell me how many cases involve constitutional claims.

Social Security Withholding law is not a law prohibiting Amishism.

It's not that it prohibits it, it's that it prohibits free exercise. Until you define free exercise, you can't make that argument. By your logic, anything that doesn't prohibit a religion is fair game - taxes on jews, bans on proselytizing, etc.

Render unto Caesar.

So you're using Christian principles to explain what the First Amendment meant? Nice.

None of the government 's business. The U.S. invasion of Utah was possibly the most un-American thing the U.S. government ever did.

Why? How does that fit into the framework you've created?

Also, what about prayer in schools? What about funding for sectarian institutions?

It is not me saying it, it is the fourth amendment.

No, that's not what the fourth amendment says.

If they observe the crime being committed, which is very, very rare, then they can intervene on the side of the victim, and make an arrest based on that victim's complaint.

Where are you getting this?

1) A victim is not a warrant. You're already backtracking on your earlier statement now that you're realizing how impractical it is.

2) What if there's no victim? A cop walking alone down the street sees a guy placing a bomb in the middle of the road. He can't do anything?

No, they are not.

Yes, they absolutely are. Your answers to the above questions highlight that.

Most of the things you mention have to do with state law, and that too is provided for in the constitution. So long as the State's law, does not violate it's citizens constitutional rights, or the constitution of the particlar state, then it is up to those state legislators involved.

What are you talking about? Cases involve religious funding, search/seizure, social security, etc. all directly implicate questions of federal law. These issues are in no way limited to state actions.

Furthermore, are you pretending the 14th Amendment was never enacted?

The founders had it figured out, not me.

If you think that the founders believed that the Constitution fully answered all these questions, then you need to spend some more time looking at some first hand documents.
 
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