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

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    31 37.80%
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    43 52.44%
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Thread: 2nd amendment rights.

  1. #471
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    Re: 2nd amendment rights.

    Quote Originally Posted by other View Post
    I'm seeing a trend here of some people using the word "regulated" in the modern context with regard to the 2nd amendment. That's flat-out wrong.

    A very minimal understanding of the military terminology of the day reveals that the word had an entirely different meaning in that context. Essentially, professional line troops that fought for a specified term of service were known as regulars, as in British regulars (picture the long line of redcoats). They were distinguished because they fought in formation and were well-trained, they drilled often to ensure proper discipline and obedience to line officers.

    Then you had irregulars...men levied, often for an indefinite term of service, who participated in reconnaissance, geurilla warfare, and did not fight like regulars--they were essentially skirmishers, indian scouts, partisan rangers, etc. They did not fight in drill formations and were often seen as undisciplined and ineffective against regulars...usually they were most effective at harassing supply lines and would scatter and retreat if facing a disciplined line company. See Roger's Rangers as an example.

    In the 2nd amendment, the phrase "well-regulated militia" is referring to the training, effectiveness, and combat discipline of the militia which, when called, were often expected to furnish their own weapons and expected to have at least some familiarity with their weapons as well as fighting in a disciplined company in line. The "regulation" had nothing to do with the idea that the government should control people's access to firearms. Hell, on the frontiers of the day, where many people lived without access to any state protection, firearms were an absolute necessity for both self defence and the procurement of food.

    european muskets were very inaccurate and were usually smoothbore to facilitate a fast reload. British tactics were similar to what they Used in Agincourt-overwhelm the enemy with projectiles that were effective when directed to massed lines of men. THose who could reload faster and not break ranks while taking casualties usually prevailed. of course if you had accurate weapons, like kentucky long rifles, you could direct aimed fire at individual targets-hence the "nasty" habit of American snipers aiming for horse mounted british officers.



  2. #472
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    Re: 2nd amendment rights.

    Quote Originally Posted by TurtleDude View Post
    european muskets were very inaccurate and were usually smoothbore to facilitate a fast reload. British tactics were similar to what they Used in Agincourt-overwhelm the enemy with projectiles that were effective when directed to massed lines of men. THose who could reload faster and not break ranks while taking casualties usually prevailed. of course if you had accurate weapons, like kentucky long rifles, you could direct aimed fire at individual targets-hence the "nasty" habit of American snipers aiming for horse mounted british officers.
    Yep. Breaking enemy formations was all about frontage and massing all that inaccurate fire to win battles. "Well-regulated" troops were good and this, and this is how you won decisive engagements up until the improvements in powder that allowed for the line soldier in the Civil War to get his hands on a rifled musket that could be used for more than 2 or 3 shots without the powder residue getting clogged in the rifling--making the weapon useless.

    Irregulars were the ones who would've been using the long rifles for sniping and skirmishing in the backwoods.

  3. #473
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    Re: 2nd amendment rights.

    Quote Originally Posted by The Mark View Post
    An interesting (and somewhat plausible) interpretation.

    Do you have evidence that supports this theory?

    Seeing as your statement implies that such was part of the legal thought at the time, it would seem likely that some supporting documentation would exist.
    Exactly, this is not my own theory but based on the analysis of some prominent historians and legal scholars.

    As to the question of what "keep and bear" means, I myself used to think just the way you did. But you cannot read modern definitions into it, it is actually a term of legal term of art wit ha precise meaning:
    Quote Originally Posted by Historian Mark Tushnet
    When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.
    As to the question of whether the original intent was to create an individual right or a right tied to the militia, Judge Posner, one of the most respected conservative judges of our time, has this to say:

    Quote Originally Posted by Judge Richard Posner
    The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.

  4. #474
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    That's a fair reading, but unfortunately it is problematic in a number of ways. For one thing, your definition of "keep and bear arms" is wrong. To the founders keep didn't mean "keep it in your house" and bear didn't mean "use it as you like." Keep and bear was a legal term of art, and much like the term "search and siezure," it had a very specific meaning. Simply put, keep meant "keep up" or "keep in working condition" and bear meant "bear against an invading army or tyrannical government." The militia clause informs the whole second amendment, giving it context. And if there was any doubt we were talking about the militia, the term "keep and bear" confirms that the scope the founders envisioned was limited to militia service.

    Think about it like this, what if the militia commander wanted to store all the weapons in a central facility? Something like that would be part and parcel to a well-regulated militia. The militia clause isn't just window dressing, it is essential to the text itself.

    Do you think that by repeating this over and over and over and over and over and over and over and over and over, someday it'll suddenly be true?
    “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

  5. #475
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    Exactly, this is not my own theory but based on the analysis of some prominent historians and legal scholars.

    As to the question of what "keep and bear" means, I myself used to think just the way you did. But you cannot read modern definitions into it, it is actually a term of legal term of art wit ha precise meaning:
    The quote you offerred establishes that the phrase "keep and bear arms" was intended in a strictly military context. I disagree with this, but even if he's right that doesn't in any way imply that individuals couldn't have weapons. The militia back then was drawn from the citizenry on a temporary basis, the disctinction between soldier and citizen was even less distinct then than it is in many cases today.

    As to the question of whether the original intent was to create an individual right or a right tied to the militia, Judge Posner, one of the most respected conservative judges of our time, has this to say:
    Posner argues that the 2nd amendment "creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property." I agree, it doesn't create any right, nor do the other amendments in the bill of rights. It simply prohibits the government from removing a right that is already retained by the people. Who in this thread has argued that the 2nd amendment creates a right in the first place?

  6. #476
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    Re: 2nd amendment rights.

    Quote Originally Posted by TurtleDude View Post
    is it your opinion that the second amendment delegates to the Federal GOvernment the power to regulate a militia?
    No...I'm asking the question for the purpose of debate. Seriously, that's what I'm doing.

  7. #477
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    Re: 2nd amendment rights.

    Quote Originally Posted by other View Post
    Posner argues that the 2nd amendment "creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property." I agree, it doesn't create any right, nor do the other amendments in the bill of rights. It simply prohibits the government from removing a right that is already retained by the people. Who in this thread has argued that the 2nd amendment creates a right in the first place?
    You're misunderstanding how the Constitution works on a fundamental level. You ask who "has argued that the 2nd amendment creates a right?" You are arguing precisely this when you say that "it simply prohibits the government from removing a right that is already retained by the people." That is creating a right. But the second amendment doesn't actually do that, at least it wasn't intended by the Framers that way (it has expanded because of Judicial interpretivism in the Heller case). There is no right to gun ownership that is just floating out there in the aether as you would have us believe. The fact is that the meaning of the second amendment has been revised to create that right.

    But, once again, on it's original meaning, the second amendment creates no such right. It may exist in State Constitutions, and it may not, but the simple fact is that the original meaning of the second amendment was not to protect a right to individual gun ownership for hunting or sport. And no such right existed as against the federal government otherwise. You are quite simply mistaken in your understanding of how law works.

  8. #478
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    Re: 2nd amendment rights.

    I have to say, the rest of posner's argument seems pretty ridiculous as well...

    The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.
    I would like to ask him why he use this specific language. Does this judge really not understand that the founder's believed that they received their rights from the constitution? Hasn't he ever read the DoI or John Locke?

    It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility?
    Why does this judge think that allowing individuals to keep their own weapons somehow precludes the government from keeping weapons as well?

    Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias,
    I have to ask, does this judge even know the background behind the Bill of Rights? They weren't included in order to provision the government with anything (ie. with the ability to ensure an effective militia), they were included because the anti-federalists and other anti-constitutionalists in the state governments flat refused to accept a federal constitution that did not include a Bill of Rights precluding the government from usurping people's rights.

    I'd seriously like to see this guy defend his positions.

  9. #479
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    Re: 2nd amendment rights.

    Quote Originally Posted by other View Post
    The quote you offerred establishes that the phrase "keep and bear arms" was intended in a strictly military context. I disagree with this, but even if he's right that doesn't in any way imply that individuals couldn't have weapons. The militia back then was drawn from the citizenry on a temporary basis, the disctinction between soldier and citizen was even less distinct then than it is in many cases today.
    It implies that the right to keep and bear arms is subject to the militia. The militia clause informs the whole amendment. Nowhere does the text of the amendment say that the right of the individual to keep and bear arms shall not be infringed. It's the right of the people to keep and bear arms that shall not be infringed, and the term of art "keep and bear" demands that this right be contingent on the militia (on the original meaning). Thus the federal government cannot infringe on the people's right to keep and bear arms in militia service, but if the militia commander wanted to have all the guns stored at a central facility, there is no individual right to gun ownership that this would infringe on.

  10. #480
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    Re: 2nd amendment rights.

    Quote Originally Posted by other View Post
    I would like to ask him why he use this specific language. Does this judge really not understand that the founder's believed that they received their rights from the constitution? Hasn't he ever read the DoI or John Locke?
    Neither the Declaration nor Locke are binding law in the United States. I dare say that Judge Posner is basing his opinion on the law.

    Quote Originally Posted by other View Post
    I have to ask, does this judge even know the background behind the Bill of Rights? They weren't included in order to provision the government with anything (ie. with the ability to ensure an effective militia), they were included because the anti-federalists and other anti-constitutionalists in the state governments flat refused to accept a federal constitution that did not include a Bill of Rights precluding the government from usurping people's rights.

    I'd seriously like to see this guy defend his positions.
    American History 101 doesn't really have any bearing on the issue. We're talking about the law, not a shallow analysis of revolutionary political issues. Leave the shoddy historical cherry picking to Scalia.

    You say you'd like to see this guy defend his positions then please read the article instead of simply taking the quotes out of context, and mistunderstanding them to boot.
    Last edited by Guy Incognito; 11-19-10 at 12:47 AM.

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