View Poll Results: Are restrictions on the purchase/sale of firearms constitutional?

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    43 52.44%
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Thread: 2nd amendment rights.

  1. #141
    Banned Goobieman's Avatar
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    Sure, it sounds great, but the fact is the original intent of the second amendment was only to protect a right tied to militia service.
    Please cite any of the people involved in the writing and ratification of the 2nd that argued the amendment was to protect the collective right to keep and bear arms to the full exclusion of the individual right to same, and that to enjoy the protection of the 2nd, ones actions must be in direct relation to service in the militia.

  2. #142
    Educator ender1's Avatar
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    Re: 2nd amendment rights.

    Goobieman commented on ever other poster except me.

    Im hurt.

  3. #143
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    Re: 2nd amendment rights.

    Quote Originally Posted by Goobieman View Post
    Each of these things, by their nature, is an infringement.
    Background checks are a form or prior restraint. Prior restraint is an infringement.
    Licences are a precondition to the exercise of the right not inherent to that right. Infringement.
    "Storage requirements", depedning on the specifics, may create an due restriction on the exercise of the right that fails outside any compelling state interest. Infringement.
    Constitutionality aside, you don't address whether such basic infringements are wanted, or a beneficial infringement. Look at the first amendment; it has plenty of restrictions, but they've been deemed constitutional time and time again.
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  4. #144
    Banned Goobieman's Avatar
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    Re: 2nd amendment rights.

    Quote Originally Posted by ender1 View Post
    Goobieman commented on ever other poster except me.
    Im hurt.
    I dont recall seeing yours...?

  5. #145
    Filmmaker Lawyer Patriot
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    You know, I've heard a lot of nonsense about the Standard Model. I think people like to toss that term around like it makes them seem like they know what they're talking about. Trouble with the standard model is it's only been "standard" for the past twenty years or so, and even then only in a small circle of gun rights advocates.

    The Standard Model is bad history. It was a theory crafted to justify a pro-gun interpretation of the second amendment, and to dispense with that pesky militia clause that stands in the way of what gun rights advocates think the second amendment should say.

    Sure, it sounds great, but the fact is the original intent of the second amendment was only to protect a right tied to militia service. The phrase "keep and bear arms" was an eighteenth century legal term of art that applies only to militia service. The founders never imagined an individual right to keep and bear arms the way we think of it today. As the eminent Judge Richard Posner points out, what if the state wanted to enact a law requiring all arms to be stored in a central facility to make the militia more efficient?

    Funny how the standard model is only supported by some legal scholars and not any historians, huh? The fact is that the militia clause cannot be accounted for by the Standard Model, and it is still an embarrassment to proponents of the standard model who are aware of history. The Founders didn't just put it there as window dressing, it was meant to inform the Second Amendment. Thankfully, I'm not an originalist, so I don't particularly care what the founders thought. I thank God that activist justices like Scalia came along and rewrote the Constitution to give us a fundamental right to keep and bear arms. But if you take an honest look at history without trying to promote a pro-gun agenda, then it is obvious that the individual right to keep and bear arms (separate from militia service) simply wasn't there to begin with.

    That's why it saddens me to see Scalia and other "standard model" advocates stoop to such blatant hypocrisy, fashioning a shoddy false history just to claim their views line up with "original intent." A much simpler solution is to abandon the quixotic hope of ascertaining original intent (while in reality creating a parody of original intent to justify preconceived notions). Just let the preconceived notions come first and interpret the constitution in light of modern sensibilities. Any thinking originalist cannot support a fundamental right to keep and bear arms. But that doesn't mean a fundamental right to keep and bear doesn't exist! Scalia just created one! So why not treat the constitution like the living document it is?
    You keep repeating this ('cept now you're using the term "Standard Model," which you must have Wikipediaed after the last exchange), yet you've never, ever shown a shred of historical evidence that it's wrong. All you do is keep saying that it is.

    (Of course, this is not the only legal matter where you do this.)
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  6. #146
    Banned Goobieman's Avatar
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    Re: 2nd amendment rights.

    Quote Originally Posted by repeter View Post
    Constitutionality aside, you don't address whether such basic infringements are wanted, or a beneficial infringement.
    "Wanted"...? By whom?

    "Beneficial infringement"?
    The right to arms is a fundamental right. As such, potential infringements upon it are put to a test of strict scrutiny - where, among other things, those who wish to limit the right must show that there isa "compelling state interest" in doing so -- in other words it has to be shown that the restriction in question is so necessary that the state cannot function without it.
    It is impossible to make that case for any of the things you mentioned.

    Look at the first amendment; it has plenty of restrictions, but they've been deemed constitutional time and time again.
    I have commented on how I'd be more than happy to apply the arguments that allow for those Constitutional restrictions as a template for what restrictions would be allowable regarding the right to arms.
    The question is - would you?
    Last edited by Goobieman; 11-15-10 at 09:18 PM.

  7. #147
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    Re: 2nd amendment rights.

    Quote Originally Posted by Harshaw View Post
    You keep repeating this ('cept now you're using the term "Standard Model," which you must have Wikipediaed after the last exchange), yet you've never, ever shown a shred of historical evidence that it's wrong. All you do is keep saying that it is.

    (Of course, this is not the only legal matter where you do this.)
    I dont expect a response. You?

  8. #148
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    Re: 2nd amendment rights.

    Quote Originally Posted by Goobieman View Post
    I dont expect a response. You?
    What's hilarious is that he says "Funny how the standard model is only supported by some legal scholars and not any historians, huh?" -- when the historians who do support the Standard Model are often derided as not being legal scholars. Of course, if he actually had any idea what he's talking about, he'd have known that.

    (Besides, it's like saying "sure, a few doctors claim that smoking causes cancer, but funny that no dentists do!" )
    “Offing those rich pigs with their own forks and knives, and then eating a meal in the same room, far out! The Weathermen dig Charles Manson.”-- Bernadine Dohrn

  9. #149
    Educator ender1's Avatar
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    Re: 2nd amendment rights.

    Quote Originally Posted by Goobieman View Post
    I dont recall seeing yours...?
    Its the thought that counts.

  10. #150
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    Re: 2nd amendment rights.

    Quote Originally Posted by Goobieman View Post
    Please cite any of the people involved in the writing and ratification of the 2nd that argued the amendment was to protect the collective right to keep and bear arms to the full exclusion of the individual right to same, and that to enjoy the protection of the 2nd, ones actions must be in direct relation to service in the militia.
    I never said it protected a "collective" right, but rather it protects an individual right to keep and bear arms that is contingent on militia service. This isn't just something I made up, it's well understood among legal scholars, here is an excellent argument by Richard Posner, a legal scholar of the first order that all the standard model advocates around here seem to be very adept at ignoring.

    Again, I repeat the request, find me one historian who supports the standard model. If it was good history, there would be plenty. But it's a fiction made by and for pro-gun legal scholars and bears no resemblance to actual history. As I've argued in other threads, there is a a good historical case that the second protects a right to keep and bear arms (a term of art that is literally the same as saying "militia service"), but there is nothing in the text or in its history that would extend that right to the use of those arms for, say, hunting.

    Quote Originally Posted by Historian Richard Uviller
    In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.
    Should we have a right to own guns? Yes. But that is not what the founders wanted. But hey, we got rid of slavery and allow women to vote, and that isn't what the founders wanted either. Society progresses. But don't relieve yourself on my head and tell me it's raining. The founders didn't envision a fundamental right to gun ownership, they envisioned a right to militia service, period.
    Last edited by Guy Incognito; 11-15-10 at 09:45 PM.

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