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Thread: The Second Amendment

  1. #1
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    Default The Second Amendment

    I've been reading up on the second amendment for awhile now, and it seems to me that this notion of a "personal right to carry any weapon ever manufactured for civilian use" is a recent invention, as late as 2008. Granted it's been touted as such for longer, but the earliest SCOTUS ruling I am able to find comes from 2008, District of Columbia v. Heller, which affirmed the "individual right to carry." But as far back as 1876, United States v. Cruikshank established that the second amendment was only regarding the rights of states to regulate guns, and actually goes out of its way to establish that there is not an "individual right" to gun ownership, stating that the second amendment "has no other effect than to restrict the powers of the national government:"

    "The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States. "

    --United States v. Cruikshank ruling
    The Westlaw Insider Blog has an interesting breakdown of the timeline of these cases and their effects on national gun laws, if you're interested in some casual reading:

    "In writing for the Heller majority, Justice Scalia seemingly misinterpreted Cruikshank’s holding of “[t]his is not a right granted by the Constitution” to mean that the individual right to bear arms pre-existed the Constitution, which merely codified that existing right in the form of the Second Amendment.

    Scalia made no reference to Cruikshank’s statements immediately following those excerpts, which explicitly disqualify any idea of there being an individual right to bear arms.

    Nor did Scalia make any reference to the fact that Cruikshank was evaluating the validity of a law that prohibited two or more people from conspiring to deprive anyone of his constitutional rights – and that the ruling held the second count of the criminal indictment (“an intent to hinder and prevent the exercise by the same persons of the ‘right to keep and bear arms for a lawful purpose’”) as invalid because the Constitution grants no such right.

    Justice Scalia’s misunderstanding of Cruikshank aside, is it still possible that the Framers intended to codify through the Second Amendment an individual right to firearms, as the Heller majority contends?

    It’s possible, I suppose, but it’s a possibility reliant on the assumption that the understandings of the vast majority of state and federal courts since the ratification of the Second Amendment are incorrect."
    That said....I've brought this up in conversations about gun ownership with a few people on facebook, and so far the most common responses include (A) "You don't understand the constitution" (I'm not saying I do, I'm merely citing people whose job it is to interpret the Constitution), (B) "Second Amendment rights, I can own whatever guns I want!" (ignores the entire point), and (C) "Well, the SCOTUS said in 2008 that we DO have an individual right!"

    That last one is technically a fair point, though it's interesting because nine times out of ten, I'm having this conversation with a person who said SCOTUS was "corrupt" for ruling Obamacare constitutional.

    Anyway, thoughts? Strongly-worded opinions? Violent knee-jerk rhetoric? I'm hoping that maybe here, it will be possible to discuss this in an adult manner, without resorting to ignorant partisan rhetoric.
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  2. #2
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    Discuss this in an adult manner? Ha. Don't fool yourself. I'll invoke dangerous weaponry, Moto will make some rude joke, llamas will call us all idiots, and you'll write another essay with 50 links. If this is adult, then, oh, actually we will discuss it in a rather adult style.

    Perhaps you should not read these rulings, but rather, the law itself. It says, oh, something like, y'know, the right to bear arms shall not be infringed. I dunno, maybe this is what is important here. Partisan judges can rule all day, but the law says what it says.

    Of course, the founding fathers were only considering muskets. So perhaps only shotguns and sniper ridles should be allowed.
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    Discuss this in an adult manner? Ha. Don't fool yourself. I'll invoke dangerous weaponry, Moto will make some rude joke, llamas will call us all idiots, and you'll write another essay with 50 links. If this is adult, then, oh, actually we will discuss it in a rather adult style.
    Sorry. I've been around intelligent and respectful people for so long, I guess I didn't realize that actually backing up what you say with source material was not considered "adult." In any case, my expectations from you are decidedly....less. So I'm not terribly surprised that you chose to respond in such a way.

    Perhaps you should not read these rulings, but rather, the law itself. It says, oh, something like, y'know, the right to bear arms shall not be infringed. I dunno, maybe this is what is important here. Partisan judges can rule all day, but the law says what it says.
    That's funny, because *my* second amendment says:

    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.
    Which seems like it's referring to arms in the context of, say, a "well-regulated militia." It says "the right of the people to keep and bear arms," not "the right of the private citizen to keep and bear arms."

    Of course, this wording can be confusing, and so that's why I asked the questions I asked.
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    It's a recent official ruling, sure, but it's been interpreted that way for quite a long time before. The word "militia" is where things get hazy, and where the controversy comes in.

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    Guns are great and guns are good. This is the main reason Japan never invaded the mainland US during WWII. They would have been shot by armed Americans. Americans, as a general rule, love guns. I know I do. The 2nd amendment allows citizens the right to have guns. It is pretty simple. And we all know why they did this. It was to stop tyranny. It is that simple. People want to put any spin on it they can in order to serve their own agenda. But it seems clear to any person rational enough to not be an asshole about it. AMERICANS HAVE THE RIGHT to own guns. With rights come responsiblity. People will be irresponsible. You can't regulate that unfortunately. Drunks drive cars and kill people. You can't outlaw cars. Police have guns for one reason and one reason alone...to protect themselves. People (Americans) have this right. I like the old saying... the average response time for a police officer to arrive at a break in is 23 minutes...my .45 gets there at 1400 fps. Either you like guns or you don't. If you don't like guns, don't own one.

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    Quote Originally Posted by MOTO13 View Post
    Guns are great and guns are good. This is the main reason Japan never invaded the mainland US during WWII. They would have been shot by armed Americans. Americans, as a general rule, love guns. I know I do. The 2nd amendment allows citizens the right to have guns. It is pretty simple. And we all know why they did this. It was to stop tyranny. It is that simple. People want to put any spin on it they can in order to serve their own agenda. But it seems clear to any person rational enough to not be an asshole about it. AMERICANS HAVE THE RIGHT to own guns. With rights come responsiblity. People will be irresponsible. You can't regulate that unfortunately. Drunks drive cars and kill people. You can't outlaw cars. Police have guns for one reason and one reason alone...to protect themselves. People (Americans) have this right. I like the old saying... the average response time for a police officer to arrive at a break in is 23 minutes...my .45 gets there at 1400 fps. Either you like guns or you don't. If you don't like guns, don't own one.
    I like that. Y'know, the armed population here is perhaps the only reason we haven't been invaded for decades. And we shouldn't talk about guns. We should talk about jerks. I read an article in the Boston Globe today that talked about a woman who made 66 calls to various doctors, asking them to give her wack son a look. They all said no. So let's talk about jerks. Because there are only 2 ways to end mental illness. One is easy, the other is hard. Easy= get a Glock, go nuts. Hard= find a doctor. Is there an issue with that perhaps?
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    The 2nd amendment allows citizens the right to have guns. It is pretty simple. And we all know why they did this. It was to stop tyranny. It is that simple. People want to put any spin on it they can in order to serve their own agenda. But it seems clear to any person rational enough to not be an asshole about it. AMERICANS HAVE THE RIGHT to own guns.
    That's not really true at all, of course. If you read the Federalist Papers written by Alexander Hamilton and James Madison, they go into a great level of detail about state militias and how they were to go about regulating them. They wanted a strong degree of oversight, and while there is some truth to that "protect against the government" nonsense, it's not an endorsement of armed civilian vigilante justice --- they actually called for strict federal standards, directed by Congress, which the state militias would use as a guideline for their own (also strict) operations:

    "It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority.[emphasis mine]." --Alexander Hamilton, Federalist No. 29
    Basically, the second amendment (in its proper historical context) was more about setting up local state armies. There's actually not one word in there about an individual civilian right to arms, only references to "the people," which in proper context obviously refers to members of state militias. And Madison basically laid out recruiting guidelines in Federalist 46, including details such as that the number of employed military personnel should not exceed 1/100th of the able civilian population, or 1/25th of those able to serve:

    "Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. [emphasis mine]." --James Madison, Federalist No. 46
    Nowhere in any of these papers did the founding fathers express support for an individual right to carry for vigilante purposes; also, nowhere in the Constitution (or the Papers) is there a provision giving citizens a legal right to stage an armed rebellion against the government in the event of a political or Constitutional discourse; in the Declaration of Independence (which, may I remind you, is not a governing document), it is mentioned that the people should overthrow a state they deem to be corrupt; but it also warns us not to overthrow "governments long established" for "light and transient causes."

    And then there are myriad court cases, going as far back as the early 1800's, where the rulings are set against the individual right to carry. The idea of an individual right is very recent, only really coming to prominence in the last 30 years or so. It's probably not inaccurate to call the individual right to carry a sort of "historical revisionist" provision, with very little actual historical support, if any.
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    Quote Originally Posted by Static_Martyr View Post
    That's not really true at all, of course. If you read the Federalist Papers written by Alexander Hamilton and James Madison, they go into a great level of detail about state militias and how they were to go about regulating them. They wanted a strong degree of oversight, and while there is some truth to that "protect against the government" nonsense, it's not an endorsement of armed civilian vigilante justice --- they actually called for strict federal standards, directed by Congress, which the state militias would use as a guideline for their own (also strict) operations:
    If it weren't true the government would have taken away the abaility to own gons long ago. They can't. It's a friggin right. Agree with it or not...doesn't even matter. It's a 2nd Amendment RIGHT. My god you are a twit. If you don't want to own a gun, don't own one. If you don't care about personal safety or are afraid of guns, don't shoot or own one. That's absolutely fine. If someone breaks into your house, I hope they have nothing more than an egg beater as a weapon for your sake. As for me, I am a responsible gun owner and will always be that way. It would sicken me to even point a gun at someone with the actual thought ofshooting it. But if someone breaks into my home and mean harm to me or my family, I hope I have the guts to fire until I hit blanks.

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    I wish there was a real solution to break and enter protection laws. In the US, people are shot and killed for entering a house when the owner thought they were there to cause harm but they weren't. In Europe, people aren't allowed to defend themselves physically unless physically attacked (the defense must match the offense). This has led to stories like, a guy broke in to a home multiple times to steal money, successfully stole tens of thousands... when he was caught by the owner, the owner beat him with a baseball bat. Sure, that was stupid, but in the end, the homeowner's crimes were considered worse than the theft, and the homeowner had to pay the thief's medical bills - in addition to keeping all the money he stole. However, the thief didn't deserve to die. Both extremes are shitty, and I wish there was a middle ground. It really does disgust me how willing people are to KILL someone who enters their home. Killing a person has got to fuck you up in a serious way mentally, and some people seem to actually hope they get to use their guns in this manner someday. It's like, well I can't kill anyone normally... but if they break into my home, I can!! Honestly, I don't know that I'd rather have to live with the fact that I'd killed a person than to be killed myself. I really don't. I think it would haunt me for the rest of my life.

    Sorry, this is kind of off-topic, but at least related to the second amendment.
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    Quote Originally Posted by MOTO13 View Post
    If it weren't true the government would have taken away the abaility to own gons long ago. They can't. It's a friggin right. Agree with it or not...doesn't even matter. It's a 2nd Amendment RIGHT. My god you are a twit. If you don't want to own a gun, don't own one. If you don't care about personal safety or are afraid of guns, don't shoot or own one. That's absolutely fine. If someone breaks into your house, I hope they have nothing more than an egg beater as a weapon for your sake. As for me, I am a responsible gun owner and will always be that way. It would sicken me to even point a gun at someone with the actual thought ofshooting it. But if someone breaks into my home and mean harm to me or my family, I hope I have the guts to fire until I hit blanks.
    I'm fine with people owning guns. But *guns*, not assault-style rifles, not 100-count clips. The 2nd Amendment referred to "well-regulated militia"s, which unfortunately does not apply to most of the screaming douchebags on TV lately going on about how Obama's coming for your BB guns (spoiler alert: he isn't).

    I'd also like to see training requirements and recertification required every couple years in order to get your gun license. Well-regulated, after all.
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