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

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    31 37.80%
  • No

    43 52.44%
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    8 9.76%
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Thread: 2nd amendment rights.

  1. #481
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    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.
    no, its not. If it was the 2nd amendment created that right, then why was it universally recognized prior to the drafting of the 2nd amendment?

    The truth is, the drafters pretty much lifted the 2nd amendment out of the state of Virginia's constitution, which preexisted the federal Constitution. From Virginia's Constitution:

    Section 13. Militia; standing armies; military subordinate to civil power.

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
    Look a little familiar? There's even more context given here that shows the intent of keeping the state/military subordinate to the people.

    If you take a look at Virginia's Constitution, you'll find that they took most of the bill of rights from it, as well as other clauses in the other articles of the constitution.


    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.
    Good luck proving this. Maybe you can start by explaining away all the private gun ownership at the time of the drafting of the document... and also before, after, and ever since.

    But, once again, on it's original meaning, the second amendment creates no such right.
    You're right here. It creates a restriction on the federal government.

    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.
    again, why don't you actually provide some evidence that this is the case?
    Last edited by other; 11-19-10 at 01:05 AM.

  2. #482
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    Neither the Declaration nor Locke are binding law in the United States.
    So? I'm the discussing original intent behind the constitution. Both the DoI and Locke played a role in the ideas behind our form of government as established by the constitution.


    I dare say that Judge Posner is basing his opinion on the law.
    No he isn't, he's basing his opinion on speculative legalistic reasoning, and he seems to have very little actual understanding of the history of the topic.


    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.
    Right. So you want to discuss original intent without understanding the actual history. Talk about a shallow analysis.

    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.
    I didn't take anything out of context, I quoted him directly from what you provided in your post. Did you take him out of context or tamper with his words?
    Last edited by other; 11-19-10 at 12:57 AM.

  3. #483
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    Re: 2nd amendment rights.

    Quote Originally Posted by other View Post
    I didn't take anything out of context, I quoted him directly from what you provided in your post. Did you take him out of context or tamper with his words?
    No, but you did. You asked earlier: "does this judge even know the background behind the Bill of Rights?" That implies that Posner didn't address that in his article. But had you read the article, or even the quote posted here, you would see that Posner has taken into account both the textual meaning and the "concerned that actuated the adoption of the second amendment." You're not getting the full context of the quote, you should really read the whole article.

    The fact is that Posner is right, and the only reason the false history of Scalia's opinion in Heller has any traction is because it is so artfully contrived to fulfill the wishes of gun rights advocated who wish to maintain the veneer of "originalism." But that's not how historians operate, and it is hypocritcal when Scalia's stated intention is to arrive at the original intent of the law. The original intent of the second amendment was to create a right contingent on the militia, period.
    Last edited by Guy Incognito; 11-19-10 at 02:09 AM.

  4. #484
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    No, but you did. You asked earlier: "does this judge even know the background behind the Bill of Rights?" That implies that Posner didn't address that in his article. But had you read the article, or even the quote posted here, you would see that Posner has taken into account both the textual meaning and the "concerned that actuated the adoption of the second amendment." You're not getting the full context of the quote, you should really read the whole article.
    I guess this escaped you, but my question was rhetorical. The point being that if he understands that the 2nd amendment was adopted in order to ensure ratification by those who feared strong central authority---& hence strong centralized military power---then why does he turn around and claim that the only intention was to ensure the effectiveness of state militias and present it as if the amendment somehow precludes both the private ownership or firearms and the state's ability to stockpile weapons? Makes no sense at all. Militias preexisted the federal constitution and were institutions of the people and the states, and their existence was contingent upon the private ownership of firearms. His argument, based on the idea that private ownership would have led to an ineffective militia, is incredibly weak and completely contradicted by historical fact. In the real world, the government kept weapons in arsenals and intermittently maintained a small force of regulars and made no law to infringe upon private ownership of firearms by the people (a portion of which who would be called to serve in the militias, in a contingency).

    The fact is that Posner is right, and the only reason the false history of Scalia's opinion in Heller has any traction is because it is so artfully contrived to fulfill the wishes of gun rights advocated who wish to maintain the veneer of "originalism." But that's not how historians operate, and it is hypocritcal when Scalia's stated intention is to arrive at the original intent of the law. The original intent of the second amendment was to create a right contingent on the militia, period.
    Yeah, that's what he wants you to think. Hook, line, & sinker.
    Last edited by other; 11-19-10 at 03:10 AM.

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    Re: 2nd amendment rights.

    There's a very simple way to answer this question. Ask the people who wrote the Second Amendment, and those who were involved in its earliest workings. They wrote quite a lot on the topic.

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

    Samuel Adams: "The Constitution shall never be construed to prevent the people of the United
    States who are peaceable citizens from keeping their own arms
    ." (Convention of the Commonwealth
    of Mass., 86-87)
    Why should we concern ourselves with what the Founders said, instead of what some later judge thinks? Jefferson had a thought on that question:

    Thomas Jefferson: "On every occasion...[of Constitutional interpretation] let us carry ourselves
    back to the time when the Constitution was adopted, recollect the spirit manifested in the debates,
    and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it,
    [instead let us] conform to the probable one in which it was passed." (June 12 1823, Letter to
    William Johnson)

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  6. #486
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    Re: 2nd amendment rights.

    Quote Originally Posted by Goshin View Post
    There's a very simple way to answer this question. Ask the people who wrote the Second Amendment, and those who were involved in its earliest workings. They wrote quite a lot on the topic.



    Why should we concern ourselves with what the Founders said, instead of what some later judge thinks? Jefferson had a thought on that question:
    That last quote pretty much tells you how out of touch liberalism really is, and how wrong it is. There is no living Constitution, to be interpreted in whatever direction the wind blows.
    "He who does not think himself worth saving from poverty and ignorance by his own efforts, will hardly be thought worth the efforts of anybody else." -- Frederick Douglass, Self-Made Men (1872)
    "Fly-over" country voted, and The Donald is now POTUS.

  7. #487
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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    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.
    the amendments create no rights-that is one of the obvious comments. The Bill of Rights recognizes rights presumed to pre-exist the Constitution.

    That individual right was presumed to exist and the second amendment recognized that as does the Ninth and the Tenth

    YOu are the one who is mistaken Guy.



  8. #488
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    Re: 2nd amendment rights.

    Quote Originally Posted by Goshin View Post
    There's a very simple way to answer this question. Ask the people who wrote the Second Amendment, and those who were involved in its earliest workings. They wrote quite a lot on the topic.



    Why should we concern ourselves with what the Founders said, instead of what some later judge thinks? Jefferson had a thought on that question:
    when you ask the "collective rights" crowd (ie the gun banners like Hennigan-a paid whore of the Brady Conspiracy against firearms ownership or people like Guy who say they support the second amendment but then engage in a fictional interpretation that allows a complete legislative ban) to find ONE example of a contemporaneous document that supports their statist claims you get NOTHING.

    They aren't even sharp enough to do what Amar once tried to do-to claim its an individual right that has to be exercised collectively (like jury duty) which is what Ohio State's anti gun constitutional historian tried to do (but not being as sharp as Amar nor as Honest, Cornell couldn't quite make as good a case)



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    Re: 2nd amendment rights.

    Quote Originally Posted by Guy Incognito View Post
    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.
    Do you know that by lecturing someone on "how the Constitution works," you claim the exact opposite of how the Constitution works, while he was right?

    I don't think you do.
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  10. #490
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    Re: 2nd amendment rights.

    Quote Originally Posted by haymarket View Post
    So it is your interpretation that the state can regulate the militia but NOT the citizenry?
    Personally, even as a libertarian, I am in favor of very basic regulations (or rather, outright restrictions) on the possession of CERTAIN arms, as mentioned above (things like nukes, flame-throwers, bombs, and grenade launchers). I'm in favor of restricting those particular arms, but overall my regulation of legal items would be extremely limited.

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