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2nd amendment rights.

Are restrictions on the purchase/sale of firearms constitutional?


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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.

True. But in a perfect world, the People would recognize the importance of the militia and would have connections to it.
 
True. But in a perfect world, the People would recognize the importance of the militia and would have connections to it.

in a perfect world there would be no need for a militia
 
Really. Who among the people that were involved with the amendment made such an argument?


Of course you do -- defensless people are the easiest to control.
I don't really care what the Founding Fathers thought; I care what they wrote down.

The grammar of the passage is quite clear.
 
in a perfect world there would be no need for a militia

hahah, yeah. Fair enough. I just wish people would take militia and the freeman's duty to it a bit more seriously.
 
I don't really care what the Founding Fathers thought; I care what they wrote down.
So you dont have anything to support the idea that your interpretation matches what they meant when they wrote it. 10-4.

The grammar of the passage is quite clear.
It is. The militia is necessary; because of this, the right of the people shall not be infringed.
 
hahah, yeah. Fair enough. I just wish people would take militia and the freeman's duty to it a bit more seriously.

that's one of the reason's i joined my state's national guard.
 
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.

Posner wrote an unsourced position paper, and in so doing, he even contradicted some of what you had to say. Yet, you now adopt him as the irrefutable authority.

This is beyond parody.
 
You know, I've been thinking about it, and Scalia and the gun-rights advocates who are proposing this pseudo-history for the second amendment are right about one thing. The second amendment is an individual right, not a collective one. But unfortunately for them, this doesn't really help to bolster the pro-gun agenda when you also considered the text of the second amendment itself. The fact that it is a conditional sentence, and the fact that the phrase "keep and bear arms" is a legal term of art referring to military service, have both been demonstrated repeatedly by me in this thread.

Thus the right in the second amendment is an individual one, but only insofar as it its the right of the individuals who make up the people to be represented by the militia, and to take part in it as citizens. But that is contingent on the militia's being necessary for the security of the free state, and it is also contingent on the constraints of a well-regulated militia. The militia may lawfully constrain the individual use of weapons and even their ownership. Though the federal government may not infringe on gun ownership rights of the individual, the state government and the militia itself certainly could, and this is how the founders envisioned it and wrote it. This is the original intent.

So why fight it? Clearly gun ownership is more important to the pro-gun advocates than actual historicity. I doubt that any historical consensus could sway the opinion of Scalia. As it should be that way. Gun rights are fundamental. But they shouldn't be placed on an insecure foundation of bad history. Because then it is opening it up to being undermined by people who might come along later and want to undermine gun ownership rights. They'll have a much easier time with it, since history will be on their side. A future justice who over rules Heller in fifty years may make an off-hand comment like, "Scalia's reasoning is sound, but considering on what we know of history now, Heller ought to be overturned based on Scalia's own logic." And he'd be right! Doesn't that worry you?

It should.
 
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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.

First of all, there's a comma next to state, meaning that a well-regulated militia, AND the citizenry are entitled to the right to bear arms.

Second of all, you'd love to get your hands on the Bill of Rights, wouldn't you? Forget the fact that it is probably our most sacred part of the constitution regarding the rights of the people, I have no doubt you'd love to take a permanent red marker and cross out everything YOU deem unnecessary.
 
First of all, there's a comma next to state, meaning that a well-regulated militia, AND the citizenry are entitled to the right to bear arms.

That is a wonderful point. In the version of the bill of rights sent out to the states, there is only one comma, the one after State. However, the original version has three commas, a comma after each gammatical clause of the sentence, and (coincidentally enough) a comma after the two pertinent legal terms of art: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This really lends support to the reading that ties the right to the militia, because it becomes even more clear how the sentence should be read. Although to be honest, it does put something of a whole in my argument that the sentence is a conditional. With three commas, it looks more like "being necessary to the security of a free state" simply describes a militia. Regardless, Posner's argument never rested on the sentence being a conditional, so he and I remain right about the larger issue of the right being tied to the militia.
 
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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.

I would say that the Second Amendment clearly states that the militia is a necessity for keeping a free State and because of that, the individual right of the People to keep and bear arms cannot be infringed upon.
 
I would say that the Second Amendment clearly states that the militia is a necessity for keeping a free State and because of that, the individual right of the People to keep and bear arms cannot be infringed upon.

so would anyone who has a rudimentary grasp of the english language.
 
I would say that the Second Amendment clearly states that the militia is a necessity for keeping a free State and because of that, the individual right of the People to keep and bear arms cannot be infringed upon.

I agree with that statement. Just don't make the mistake of reading the modern meaning of "keep and bear arms" into the second amendment. It is a term of art with a precise meaning related to military service.
 
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.

Nothing about what you said is in the 2nd amendment, so you decided to write your version... Enterprising but misleading. Here, maybe you should read it again.

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Note that there's a comma after state, not an AND, clearly connecting people's right to bear arms with the militia, exactly what the framers intended.

ricksfolly
 
Note that there's a comma after state, not an AND, clearly connecting people's right to bear arms with the militia, exactly what the framers intended.

ricksfolly

Exceedingly well put.
 
I agree with that statement. Just don't make the mistake of reading the modern meaning of "keep and bear arms" into the second amendment. It is a term of art with a precise meaning related to military service.

I think it should apply to military weaponry. One of the necessities to keeping a free State is the ability of the People to control the government itself. Since all government tends towards tyranny over time, it is necessary for the People to police and control the government to keep it within perscribed bounds. If it escapes those bounds and acts too grievously against our rights and liberties for too long, it is the right and duty of the people to expunge that government and construct for themselves a government which better adheres to their rights.
 
simple then, anyone who belongs to the state militia (aka national guard) gets to keep and bear all the arms they wish.

being such a person, I will keep my assault rifle and bear it as I walk down main street.
 
I think it should apply to military weaponry. One of the necessities to keeping a free State is the ability of the People to control the government itself. Since all government tends towards tyranny over time, it is necessary for the People to police and control the government to keep it within perscribed bounds. If it escapes those bounds and acts too grievously against our rights and liberties for too long, it is the right and duty of the people to expunge that government and construct for themselves a government which better adheres to their rights.

That's a great point! It definitely cuts both ways. The right is tied to militia service on its original meaning, so this applies to military weaponry beyond simply firearms. There is really no honest reading of the amendment otherwise. People have tried to argue that different categories such as "ordinance" exist, but that is just bunk.
 
simple then, anyone who belongs to the state militia (aka national guard) gets to keep and bear all the arms they wish.

being such a person, I will keep my assault rifle and bear it as I walk down main street.

That sounds reasonable, unless there is a law that prevents you from doing so. Sometimes there is, some times there isn't. You couldn't just carry a gun anywhere in the time of the founders you know.
 
Note that there's a comma after state, not an AND, clearly connecting people's right to bear arms with the militia, exactly what the framers intended.

Exceedingly well put.

I cannot even begin to tell you how stupid this argument is. Anyone who took 5th grade English would be able to tell you why.
 
simple then, anyone who belongs to the state militia (aka national guard) gets to keep and bear all the arms they wish.

The national guard isn't the militia, and every able-bodied male aged 17 to 45 is a member of the militia. As well as female officers of the national guard.
 
The national guard isn't the militia, and every able-bodied male aged 17 to 45 is a member of the militia. As well as female officers of the national guard.

I hope you realize I was being facetious?
 
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