McDonald ET AL., v. City of Chicago SCOTUS ruling in favor of 2nd...Woo Hoo

[phrogpilot73]

mmx1 has it.

"The second amendment makes no direct reference to home, property, or self defense."
^Do you object to this statement?

I don't think he does, but I think he's pointing out that the SCOTUS disagrees with you, and a very strong argument that the 2nd Amendment now applies to self defense. In the Heller case, they clarified the second amendment - thereby neutralizing your argument.

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ... We affirm the judgment of the Court of Appeals.

They clarified the second amendment as well:

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.”

Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

If you actually READ the entire Heller decision, they clarified that the "militia" portion of the second amendment does not limit the right on ANY citizen to own firearms.

 

[ryan1234]

I stand by my assessment. I'm not talking about the grand constitutional argument. The 2nd amendment "describes" in the text the right to gun ownership as based on home/self defense only very obliquely, if at all. That's all I'm saying.

mmx1 has it.

"The second amendment makes no direct reference to home, property, or self defense."
^Do you object to this statement?

While not directly, per se.... When the 2nd Amendment reached the Senate, it included the words "for the common defense", that phrase was rejected on the grounds that the right to own "arms" was a right regardless of how is was to be used (i.e. hunting) - to include private reasons.

The 2nd Amendment also uses the words "the right to the people", not "the right of the state"... and in any case, as Seafort mentioned, the "free state" would imply the entire state of civil governance.

The concept of a "free state" is based on property and individual rights, this is pretty much the entire context of the Bill of Rights. The fact that a "well-regulated militia" preceeds the right of the people in the text makes no difference in the applicability of any individual right, since the entire Bill of Rights concerns what is necessary to a "free state" - directly or indirectly.

 

[m26]

I don't think he does, but I think he's pointing out that the SCOTUS disagrees with you, and a very strong argument that the 2nd Amendment now applies to self defense. In the Heller case, they clarified the second amendment - thereby neutralizing your argument.

If you actually READ the entire Heller decision, they clarified that the "militia" portion of the second amendment does not limit the right on ANY citizen to own firearms.

If you read my post critically, I don't believe you would see me make a statement anything like that.

In fact, I don't believe SCOTUS disagrees with me on almost any level (certainly not one I noticed).

All I said was that the second amendment doesn't explicitly mention self defense, which is inarguable. If you were to say that the second amendment protects the rights of the citizens to own and carry guns for self defense, I believe you would be correct according to my reading of Heller. If, however, you said that the second amendment is an explanation of citizens rights to bear arms as a consequence of a natural right to self defense, in my estimation you would be wrong, because that's just not what the words mean. Maybe I'm being too semantically demanding.

 

[Steve Wilkins]

The plain text concerns the defense of the state, not the home. There's a fairly clear conditional in that sentence, which says the right of the people to bear arms is contingent on the necessity of a militia to our security.

Bullshit. The Constitution supported gun rights even before 2nd Amendment was passed. And the 2nd Amendment certainly wasn't added to limit the people's freedom in this regard.

You could make an argument that it is (National Guard, Reserves), but I think that obscures the fact that gun ownership is a right today in a different way than it was in 1776.

Seriously?

If you want the constitution to unequivocally support gun rights, you'll need to change it, as you say, by amendment.

Negative. It's the other way around.

 

[kmac]

M26, what then did those words mean to the people of America then? Thomas gives a pretty solid history after Scalia's summary.

 

[m26]

Bullshit. The Constitution supported gun rights even before 2nd Amendment was passed. And the 2nd Amendment certainly wasn't added to limit the people's freedom in this regard.

-Bullshit? What part of that sentence troubles you?
-Ok
-I know that.

Seriously?

Yes, although my underlying point was that we don't need to dig around in our history books to see that gun ownership should be a right in 2010.

Negative. It's the other way around.

As it stands, its meaning is ambiguous taken by itself.

M26, what then did those words mean to the people of America then? Thomas gives a pretty solid history after Scalia's summary.

That was shitty phrasing on my part. I was saying that parsing words about "militias" misses the more fundamental reasons for the second amendment, such as those outlined in Heller.

 

[Flash]

If you want to go historical on it then you need to also consider what the militia was in the days of the founding of our country. It was composed of every male over 16 and to say that they were "well regulated' in the sense that with think today is erroneous. Without much of a standing Army expected for the country the militia was expected to muster in the event of their need. They did get much more well regulated as war approached (French and Indian, Revolutionary) but by no means was it expected that there was "drill weekend".

While the claim and the theory was that the militia was composed of 'every male over 16' the practice was it that it almost always had only volunteers mustered for a set amount of time or the duration of a campaign during wartime, at least during the Revolutionary era and the times immediately preceding and following it. The quality of the militias at the time is also often overstated, my professor who taught the Revolutionary military history course detailed how militia units almost always performed poorly in the Revolutionary War and the War of 1812 with the Battle of Camden and the Bladensburg Races emblematic of the poor quality of many of the militias of the time. Brigadier General Morgan even incorporated the militia's tendency to run after a volley or two into his battle plan at the Battle of Cowpens and placed the river to his rear so they couldn't run very far, his strategy worked and he won a victory.

The idea that the militia winning the wars at the time for the US, with the citizen picking up his rifle to fight off the invading hordes at a moments notice and then returning home, is more myth than reality. The fact is that the 'professional' forces were largely responsible for our military victories in Revolutionary War and War of 1812 though enemy ineptitude and in the case of the Revolutionary War, the French fleet, also helped. Some militias acquitted themselves well but it was usually only after they had been trained to the level of the professional soldiers at the time.

The founders wanted us to have guns in our houses ready to be used if necessary.

I have never seen that stated, care to enlighten us? And why were they not more explicit in the Constitution if they intended that?

 

[Pugs]

While the claim and the theory was that the militia was composed of 'every male over 16' the practice was it that it almost always had only volunteers mustered for a set amount of time or the duration of a campaign during wartime, at least during the Revolutionary era and the times immediately preceding and following it.

That was the point I was making. The "militia" at the time was composed of every male over 16 but it really wasn't that well organized and most couldn't leave the farm or business much. To construe that the militia at the time is the equivalent of the Guard or Reserve today is a silly notion and was glad to see it debunked by Heller.

 

[Flash]

That was the point I was making. The "militia" at the time was composed of every male over 16 but it really wasn't that well organized and most couldn't leave the farm or business much. To construe that the militia at the time is the equivalent of the Guard or Reserve today is a silly notion and was glad to see it debunked by Heller.

Maybe that is why they added "A well regulated M/militia.....".

 

[Seafort]

First, you have to remember I am on the opposite end of the world, so I was asleep for the last few posts, but several people expounded on my statements quite admirably.

Flash. sure do. Shall we begin with Thomas Jefferson, my personal favorite Founder:

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."

Strongest, but not the only, which leads us to this one:

“Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” (Here, Jefferson was quoting Cesare Beccaria because he agreed with him.)

"The beauty of the Second Amendment is that it will not be needed until they try to take it." As stated, the right is inherent, the 2nd Amendment, like the other amendments, just make it clear to future administrations that they cannot abridge this inherent right, and the people stand ready in case it is abridged.

"A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate." Nicely spells out the above.

 

[phrogpilot73]

...Words...

Are you SURE you're a Democrat?!? You sound more like a Libertarian.

 

[helolumpy]

The point is not that these rights need Constitutional protection to avoid getting trampled by an overzealous government. They do. The point is that we have natural rights to, say, free speech and freedom of religion that would exist whether or not the constitution exists. The constitution protects these rights that already exist, rather than magically granting them to us otherwise unworthy peons.

We have these rights because they are codified in our law. To say that the freedom of religion, speech, etc would exist without the Constituion is, IMO, incorrect. Many countries, Saudi Arabia for example, do not allow freedom of religion, therefore it can not be viewed as a fundemental right worldwide.

Our founding fathers felt that the there are fundemental rights, so they incorporated these rights into our law.

Since Congress has the power to repeal an Amendment (by passing a new Amendment & being ratified by State Legislators & repealing the older Amendment), how can you argue that the right would exist without the Consitution? Congress (Federal and State together) has the power to overturn any Amendment.

While I will state that the odds of getting both the 2/3 of the Federal and 3/4 of the State Legislators to agree to overturn one of the Amendments in the Bill of Rights is incredibly improbable, it is NOT impossible, therefore the freedoms of speech, religion, assemby and bear arms can be taken away.

 

[Seafort]

I said I was Democratic voting. I have never voted for a Republican. I have voted for Greens and Libertarians. I vote based on people and issues, and do research on down the ballot. I have yet to vote for a Republican because I have yet to find one where I did not agree with his or her opponent (whatever their party) more. There are Republicans I support (Joseph Cao, as an example), but I cannot vote for them; I am not among their constituents. I could best be described as a social liberal, fiscal moderate. Both parties spend too much money, but the Democrats are better about promoting my social issues. Significantly better. Therefore, it is the lesser of two evils, as is often the case.

I disagree with you helolumpy. I believe, as Jefferson did, as most of the Founders publicly did, that rights are inherent. In the absence of a state, they still exist. In the middle of a repressive state, they still exist. I am no moral relativist on the subject of liberty. Saudi Arabia doesn't allow Freedom of Religion, that doesn't mean the right is not inherent for Suadis; what it means is that the government of Saudi Arabia is abridging those rights, and is therefore not a free State. What it means is that the Saudi government is wrong.

Socially liberal? Yes. Touch feely moral relativist on the subject of liberty? Hell no.

If the Government were to amend the Constitution to abridge the rights of the People, what you would have is a revolution as Jefferson expected. Try to take them away, and many will fight for them. Tree of liberty, watered by blood of Patriots, etc.

 

[m26]

Since Congress has the power to repeal an Amendment (by passing a new Amendment & being ratified by State Legislators & repealing the older Amendment), how can you argue that the right would exist without the Consitution? Congress (Federal and State together) has the power to overturn any Amendment.

Because these are natural rights.

What you are saying, essentially, is that if we amended the constitution in such a way that we could prosecute practicing Muslims that this would be perfectly fine. If the right to freedom of religion exists only in the constitution, there is no moral issue with removing the "right" if we remove the protection in the constitution.

But that's absurd. We all have basic human rights, and just because some countries might not protect them for their citizens doesn't mean they do not exist.

 

[helolumpy]

What you are saying, essentially, is that if we amended the constitution in such a way that we could prosecute practicing Muslims that this would be perfectly fine. If the right to freedom of religion exists only in the constitution, there is no moral issue with removing the "right" if we remove the protection in the constitution.

Please provide me the quote where I said we could prosecute practicing Muslims or refrain from putting words in my mouth.

All I said was that the rights that the founding fathers believed are fundemental needed to be included in the Constitution to ensure they were codifed and then protected.
If these rights were not codified in this document, then they could be trampled on by the government. Whether "we hold these rights to be self-evident" was not my point.
By not having them in the document, then they could be trampled upon and there may be no legal recourse to address that issue.
By having them incorporated into the law of the land, we ensure they are understood and protected.

To say that the rights would exist without being in the Consititution is, I believe, incorrect. They could be modified or changed unless the basics are written down.
The government does do Command by Negation. What the government does is take the view of determing what is legal and specifying that. If the government didn't have these rights codified in law, then there is nothing to stop them from changing things to suit them. This was the basis of the gun law legislation. The government was doing what it felt was in the best interests of the people but it wasn't until the SCOTUS stopped them (because of what is written on the document, not because 'it's a unalliable right') that the gun laws were overturned.

To believe that all our rights would be respected because they are basic human rights is incredibly naive. If you feel that governments would respect rights of the people because they are endowed by their creator to have these rights is unrealistic in a human world.

The power of the Consitution is not the document itself but the greater belief by the American people of what it represents; these ideals are uniquely American.
Just because WE believe that we are all born with these rights doesn't mean other countries understand or embrace that concept.

That is why we need to document. It is demonstrative proof of what American values are; which is why we swear allegiance to it. We are not swearing alliegence to the piece of parchment, but to the ideas which is documents.

If there was no document, then what would ensure that our rights were not trampled on??? If you say that governments, and I mean any government, would respect the tenents of the Bill of Rights because it's the right thing to do, then I'm afraid that you and I will just have to disagree.

Call me a realist or whatever you want, but when it comes right down to it, governments do what is in their best interest and if it means trampling basic human rights because it's convenient, then they'll do it.
Unless there is a body of laws and a judiciary enforcing them, then basic human rights do not exist in the real world.