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2nd amendment rights.

Are restrictions on the purchase/sale of firearms constitutional?


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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.
 
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.
 
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.
 
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.
 
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.

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.
 
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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?
 
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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?
 
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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.
 
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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.
 
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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)
 
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.
 
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.
 
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)
 
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.
 
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.
 
I'm not using it as an argument to support restriction, I'm asking the question: it clearly states that the militia is well regulated and said well regulated militia is necessary for a free State. If the citizenry is the militia, who's the regulator?

That's what I'm asking. I agree with the 2nd Amendment, but I think "well regulated" is a quandry because it's clearly there and what it means varies a great deal from person to person and from legal scholar to legal scholar.

It's also the only right (possibly the third) to be written conditionally as opposed to the others. The 1st Amendment is pretty clear - Congress shall make no law..., while the 2nd offers a condition before specifying the right.

Again, I'm not arguing FOR restrictions, I'm just debating the language.

For instance: when Tennessee passed the Guns in Bars law, bar-owners went ape-**** (because their insurance premiums would skyrocket) and even a bunch of largely conservative business owners began suing and lobbying to prevent the bill's passage.

So, I ask: in order to maintain a well regulated militia, is it necessary to grant the people the right to bear arms in a bar? Or is that a reasonable restriction to say a business owner can disallow guns in his establishment?

But individual citizens are not automatically members of a militia. The militia (or military) must be regulated, but it doesn't say a well regulated citizenry.
 
So it is your interpretation that the state can regulate the militia but NOT the citizenry?
The state can regulate the citizenry - so long as it does not infringe on the right to arms.
The point is that the citizenry need not have any connection to the militia for it to have the right to arms or enjoy the protections affordrd to it by the amendment.
 
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."
Please provide a quote to that effect.

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."
Please provide a quote to that effect.

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.
Please provide a quote to that effect.
 
As written, the Second Amendment was clearly intended for militias. I wish we could just abrogate the amendment entirely and put an end to the ridiculous cult of firearms in this country.
 
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:
Still waiting for that primary source material that backs this position.
 
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.
Still waiting for the primary source material that backs this up.
 
As written, the Second Amendment was clearly intended for militias
Really. Who among the people that were involved with the amendment made such an argument?

I wish we could just abrogate the amendment entirely and put an end to the ridiculous cult of firearms in this country.
Of course you do -- defensless people are the easiest to control.
 
As written, the Second Amendment was clearly intended for militias. I wish we could just abrogate the amendment entirely and put an end to the ridiculous cult of firearms in this country.

oh yeah, that's the ticket. that way the only people that would have firearms would be the cops and criminals.

that arguement is as stupid as the one I hear about not allowing alcohol sales in some areas.

if we regulate or outlaw guns....nobody is going to have guns
if we don't sell liquor in our town....no one in our town will drink


foolishly naive at best.
 
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