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2nd amendment rights.

Are restrictions on the purchase/sale of firearms constitutional?

  • Total voters
    61
earthworm said:
If only we had the quality of people for this to be possible..
We did not back then, and we do not, today...
IMO, the Constitution was written back then, in the 1700s by the tea baggers of that era to appease the gun lovers of that day...
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Did you read about the ragtag militia that Gen George Washington had to work with? He finally had them trained up by a competent leader, and they won the war. Your last statement is one of the most silly things I've ever heard.
 
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?
 
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Guy Incognito said:
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?
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You discuss what the founders might have or have not envisioned, yet you don't mention what they said once. Bloviating about the "standard model" instead of relying on plain English. You place all your faith on the writings of Posner (yeah I read about him) who wasn't there, nor alive at the time. Introducing "what if" propositions means nothing, since they haven't been introduced; likely for good reason. Read what the founders themselves wrote and learn:

What our founding fathers and others, had to say about gun control and freedom

http://www.lizmichael.com/founding.htm

Fortunately, they don't agree with your premise, and they plainly state so. Read my signature, and you'll understand why models don't matter.
 
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I would say that given the importance of the militia to a free state, and that the militia is composed of the People at large, anything which negatively effects the individual's ability to keep and bear arms; including rules preventing or delaying the purchase of arms, is unconstitutional.
 
TurtleDude said:
in the founders time there were three classes of weapons

arms , artillery and ordnance. arms were just that-individual weapons that a regular infantryman or militia man would carry. swords, dirks, daggers, sabers, muskets, pistols and rifles. Artillery were mortars and cannon, and ordnance were bombs and rockets (remember "the rockets' red glare"?). the second dealt with the arms.
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Yet people of the day did own artillery, private citizens owned cannons and the like which they likewise brought to the nation's defense. None of this was supplied by a national or even local military.
 
Guy Incognito said:
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?
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wow.... there is more of that "libertarian" thinking. :roll:



let me use visual aides to make it easy for you.....


 
Cephus said:
Going strictly by the wording of the 2nd amendment, no restrictions of any kind are Constitutional. That includes the insane, felons, terrorists, etc. There simply are no provisions from stopping any American from owning and/or bearing weapons, based solely on the text.
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Due process can remove any mumber of rights, like for felons, the insane, etc.
Removing a right thru due process does not violate the 2nd.
 
Cephus said:
You have to understand that at the time the Constitution was written, there was no such thing as a standing army.
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There was a standing army, it was just small/

Every able-bodied white male was expected to not only own weapons, but to use them to come to the defense of their town/state/nation when called. The people *WERE* the militia.
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So.. they were expected to NOT use them for their own personal protection as well?

Of course, this didn't apply to non-whites, which shows that even at the time it was written, there were restrictions on the verbage of the 2nd amendment.
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"The people" means the same in the 2nd as it does everywere else. :shrug:

However, times have certainly changed and we do have a standing military, national guard, police forces, etc. We cannot blindly follow what was written 250 years ago...
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Really. Tell us what you think of wiretapping intercontinental telephone communications from terrorists w/o first getting a warrant.
 
Cephus said:
No, they are limitations of free speech which are nowhere spelled out in the Constitution.
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Most of the limitations on free speech limit things that aren't actually free speech, or ar based on something other than a restriction based on the speech itself.

That said, I will continue to argue that the 1st amendment is an excellent model for judging the constituionality of restrictions on the right to arms.
 
molten_dragon said:
What if gun control legislation was suggested which had a goal of reducing accidental firearms related deaths and injuries by insuring that all gun owners were properly trained before they could purchase a gun? Do you feel that would meet constitutional muster?
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No. Your argument, given its severity, does not create a compelling state interest that can only be met by the restriction you propose.
 
Lord Tammerlain said:
Why limit it to personal weapons
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As the court said in US v Miller, that's the sort of weaponry a militiaman was expected to provide for himself.

The founding fathers would not have imagined something like a tank or APC, so why not allow people to own RPG's, anti tank missiles or anti aircraft missles (man portable ones of course)
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The argument can be made that "arms", as used in the 2nd, covers "RPGs" and the like.
But, the important part, is that it unquestionably covers any and every class of firearm.
 
repeter said:
...so it'd be fair to say some restrictions (back-ground checks, storage requirements, licenses) would be reasonable....
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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.
 
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Lord Tammerlain said:
. The founding fathers I doubt imagined tanks or RPG's let alone apache helicopters
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They aslo probably didnt imagine the telephone, cable news networks or the internet.
Does this mean the Constitution doesnt apply to them?
 
Guy Incognito said:
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.
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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.
 
Goobieman commented on ever other poster except me.

Im hurt.
 
Goobieman said:
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.
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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.
 
Guy Incognito said:
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?
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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.)
 
repeter said:
Constitutionality aside, you don't address whether such basic infringements are wanted, or a beneficial infringement.
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"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.
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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?
 
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Harshaw said:
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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I dont expect a response. You?
 
Goobieman said:
I dont expect a response. You?
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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!" :lamo )
 
Goobieman said:
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.
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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.

Historian Richard Uviller said:
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.
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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.
 
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