before 1939, it is legally accepted that the Second Amendment relates to Article I, Section 8, Clause 16--
See quotations in the post
"Why I hate the individual right interpretation of the Second Amendment and so should you."
Yes, WM, you shout try to understand the post before making comments. Try moving your lips when you read.And I ask you the same question I asked Cowman here:
show that Patrick Henry's "The great object is, that every man be armed" speech from 3 Elliot's Debates 384-7 (June 14, 1788) found here and this speech from Elliot 3:51--52 found here have nothing to do with Article 1, Section 8, Clause 16, which states:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
and deals with a personal right to arms outside the militia context.
1939 S.C. says that:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. See US v. Miller
1939 > 2008 Courts follow the Holding in US v Miller which the court in Sandidge v. United States, 520 A.2d 1057 (D.C. 1987) says
We agree with numerous other courts that "the Second Amendment guarantees a collective rather than an individual right...The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia."
The fact that I can provide documented proof that you are incorrect in our assertion that "Almost everyone knows it is an individual right"--only ignorant people like yourself believed this.
2008 Scalia misinterprets the Second Amendment much to the Joy of most people. A few scholars are disgusted by this decision. The Heller decision changes settled law to unsettled law with 5 Justices following Scalia's new interpretation and 4 the Civic right intepretation.
see:
Posner, Richard A. (2008-08-27). "In Defense of Looseness". The New Republic.
Wilkinson, J. Harvie (2009). "Of Guns, Abortions, and the Unraveling Rule of Law". Virginia Law Review 95 (2): 253.
Shaman, Jeffrey M.,The Wages of Originalist Sin: District of Columbia v. Heller (July 17, 2008).
2010. Alito totally comes up with one of the most ridiculous opinions in McDonald v. Chicago by saying that the Second Amendment, which was intended to address the Federal powers applies to the State. Even more ridiculous was the fact that Justice Stevens failed to address this absurdity in his dissent and played along with the incorporation silliness.
The fact that no one is screaming over Alitos baseless and silly opinion proves that the Second Amendment is a historic relic, the meaning of which has been lost over the passing of time.
FWM, I provide cites, you provide ignorant bullshit.
I think it's spelled sites. Just guessing. I'm not trying to earn a citation here.
ReplyDeleteFlying Junior, it is spelled cites, as in (from dictionary.com)
ReplyDeletecite /saɪt/ [sahyt]
–verb (used with object), cit·ed, cit·ing.
1. to quote (a passage, book, author, etc.), especially as an authority: He cited the Constitution in his defense.
2. to mention in support, proof, or confirmation; refer to as an example: He cited many instances of abuse of power.
3. to summon officially or authoritatively to appear in court.
4. to call to mind; recall: citing my gratitude to him.
5. Military . to mention (a soldier, unit, etc.) in orders, as for gallantry.
It is from the same root as that found in the word citation.
Sites would be (citing the same site)
site /saɪt/ Show Spelled
[sahyt] Show IPA
noun, verb, sit·ed, sit·ing.
–noun
1. the position or location of a town, building, etc., especially as to its environment: the site of our summer cabin.
2. the area or exact plot of ground on which anything is, has been, or is to be located: the site of ancient Troy.
3. Computers . Web site.
Coincidentally, the word of the day, same site, is:
Word of the DayTuesday, August 16, 2011polysemous\pol-ee-SEE-muhs\ , adjective;
1.Having a diversity of meanings.
Origin:
Polysemous combines the Greek roots poly-, "many," and sema, "sign."
Cites as in citations.
ReplyDelete"2010. Alito totally comes up with one of the most ridiculous opinions in McDonald v. Chicago by saying that the Second Amendment, which was intended to address the Federal powers applies to the State."
ReplyDeleteI don't see how you can claim that McDonald was ridiculous. Once you had Heller confirming that it is an individual right, why wouldn't the 14th incorporate the 2nd like the 1st, 4th and 5th? The court didn't re-write the Constitution to apply the Bill of Rights beyond Congress, the 14th amendment did.
FWM, do you have a brain? has your education progressed beyond kindergarden?
ReplyDeleteHow does one incorporate something that refers to FEDERAL, NOT STATE powers under the Constitution?
If anyting, Alito gets this ass backwards since gun rights comes from STATE CONSTITUTIONS, NOT THE SECOND AMENDMENT!!!!
As I said in the original post, try to go back and read it with understanding.
I realise that all this is probably far beyond your intellectual level to understand my posts, but give it a try!
So you are saying the the 14th should not apply the Bill of Rights to the states? Interesting.
ReplyDeleteFWM, I'm reasonably confident that what Laci is sayng is that your understanding is both (in equal meaure) superficial, and incorrect.
ReplyDeleteYou sound like someone who is trying to parrot what you have heard elsewhere and then extrapolating it as your own opininon, without the depth or breadth to really know anything substantive on the topic.
NO
ReplyDeleteDO you have a functional brain? Are you capable of understanding what I am saying?
I am saying that the Second Amendment addresses FEDERAL POWERS under article i, Section 8, Clause 16 Those are specifically:
The Congress shall have Power...To provide for organizing, arming, and disciplining, the Militia
Got that, Thick White Man, ARMING the militia?
That power belongs to the FEDERAL GOVERNMENT, NOT THE STATES.
I repeat my question to you, if you are not too stupid to understand it:
How can something which relates only to federal power apply to the states?
Can you comprehend what I am asking, or are you truly mentally defective?
You seem to be the mentally defective one.
ReplyDeleteSupreme Court: The 2nd Amendment is an individual right.
Brady Folks: We don't like it, but the 2nd Amendment is an individual right.
The NRA: The 2nd amendment is an individual right, we had no doubt.
My three year old: The 2nd amendment is an individual right, ask Godzilla.
Everyone else on the planet: The 2nd amendment is an individual right.
LACI: Everyone is wrong wrong wrong! Can't everyone see? Am I the only smart one? Everyone else is so stupid. I am the only one that knows that the 2nd amendment is a right of society, not a right of the individual. The Supreme Court got it wrong. History got it wrong. The founding fathers even got it wrong. But, if I type enough blathering bullshit on a blog then everyone will see, oh yes, everyone will see. They have to listen to me now. They just have to!
Thick white man, can you back up what you say with facts?
ReplyDeleteYou know those things that Dog Gone keeps asking for?
Or do you just spout bullshit all the time?
As I said, I provided citations--why can't you?
Thick White Man, You are so stupid that you don't even know you're stupid!
What are your qualifications for criticising me other than you like to show your ignorance to the world?
Thick White Man, You might want to pick a more rewarding form of exhibitionism.
ReplyDeleteI would suggest entering the Ohio State Fair as a prize hog.
hould also add, Thick White Man, that in future, I would ask you to address my question rather than attack me with no basis.
ReplyDeleteAgain, my question for you is:
How does one incorporate something that refers to FEDERAL, NOT STATE powers under the Constitution?
It makes no point in calling me mentally defective if you keep failing to answer my question.
It just occurred to me, Thick White Man, how can you tell the difference between yourself and your three year old?
ReplyDeleteI think the three year old shows more knowledge!
Please answer my question!
How does one incorporate something that refers to FEDERAL (article 1, Section 8, clause 16), NOT STATE powers under the Constitution?
"Thick White Man, that in future, I would ask you to address my question rather than attack me with no basis."
ReplyDeleteReally, after all the name calling you just accused me of attacking you with no basis? That's real funny considering the only thing you could call a verbal attack from me was repeating one thing that you had already said to me.
"How does one incorporate something that refers to FEDERAL (article 1, Section 8, clause 16), NOT STATE powers under the Constitution?"
You don't. We were discussing incorporating the 2nd Amendment which is instead an individual right like the 1st, 4th, 5th, etc.
I guess I have to ask my questions in extremely simple language.
ReplyDeleteAlso,try to back up what you say with facts, Thick White Man. I'm only seeing you parrot the same old tired bullshit.
So, you are saying that the phrase:
A well regulated militia being necessary to the security of a free State
Was intended to be without effect,that is it is a mere surplusage? Despite what Marbury v.Madison says about this?
Are you saying that it is not within the power of the Federal Government to arm or not arm the militia under Article I, Section 8, Clause 16?
Are you saying that when Henry made the comment "The great object is, that every man be armed" that it had no relationship to Article I, Section 8, Clause 16?
What is the scope of this individual right you keep mentioning. Since it refers to "the people" which in Amendments IV-VII applies to criminal defendants? DO criminals have the right to arms?
What are arms? firearms? High explosives? Poison gas? nuclear weapons? Switchblades? Brass knuckles? Aren't arms referring to military weapons?
The problem is that can only repeat what you have been told.
No matter how absurd what you are saying from your ignorance turns out to be.
I'm surprised you haven't started saying that the Government owes you an assault rifle because the Government has to arm the militia according to Article I, Section 8, Clause 16.
Yeah,you can get your assault rifle--join the National Guard!
I know this is over your head Thick White Man, but...
ReplyDeleteThe Heller-McDonald decisions neglect the manner that the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship. It grants the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.
As used in the Fourth Amendment, the term “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment . For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment . Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment , the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.
Thick White Man, Does a terrorist like Timothy McVeigh have Second Amendment rights? After all,doesn't he qualify as a member of the class "the People"?
ReplyDelete"Thick White Man, Does a terrorist like Timothy McVeigh have Second Amendment rights? After all,doesn't he qualify as a member of the class 'the People'?"
ReplyDeleteNope. I'm convinced he is dead.
Thick White Man, are you capable of saying something intelligent or is that beyond your limited intellect?
ReplyDeleteAnd try to back up what you say with facts. I know that it's hard to backup your idiotic bullshit with facts, but try.
Not Timothy McVeigh, but someone like him (white,male, US Citizen who happens to want to fight the US government).
I repeat my questions in the hope that you will say something worth reading, but I am fairly certain that you will say something stupid.
So, you are saying that the phrase:
A well regulated militia being necessary to the security of a free State
Was intended to be without effect,that is it is a mere surplusage? Despite what Marbury v.Madison says about this?
Are you saying that it is not within the power of the Federal Government to arm or not arm the militia under Article I, Section 8, Clause 16?
Are you saying that when Henry made the comment "The great object is, that every man be armed" that it had no relationship to Article I, Section 8, Clause 16?
What is the scope of this individual right you keep mentioning. Since it refers to "the people" which in Amendments IV-VII applies to criminal defendants? DO criminals have the right to arms?
What are arms? firearms? High explosives? Poison gas? nuclear weapons? Switchblades? Brass knuckles? Aren't arms referring to military weapons?
Laci: “Are you saying that it is not within the power of the Federal Government to arm or not arm the militia under Article I, Section 8, Clause 16?”
ReplyDeleteI am curious as to why in Article I, Section 8, Clause 16 the founding fathers used the words “the militia” to describe arming the militia, but in the second amendment used the words “the people” to describe arming the militia. We know they didn’t forget about the militia, since they just mentioned them in the preamble- no, they chose to use a different word than “militia” to describe to whom the right belongs.
Could it be that: 1) it is within the power of the Federal Government to arm the militia. 2) The Militia is necessary for a free state. 3) The people (that’s us) have a right to keep and bear arms.
We know that they are capable of using clear language when referring to the government arming the militia by using the word “militia” as the subject:
To provide for organizing, arming, and disciplining, the Militia…
Laci, I am expecting at least a 1000 word tirade mixed with legal citations in response. Just so you know, I’ll be away from computer for a bit, so I may not respond for a while. I’ll ask you kindly to refrain from the harsh name calling as I am not as thick skinned as Fat White Man. I am a delicate flower.
One down, you're next TS.
ReplyDeleteSimple answer--
People v. Federal Government
The phrase "the people" is a term of art used in select parts of the Constitution. This term "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
As I like to point out, The Constitution begins with the phrase "We the people", but did the entire population take part in the drafting of the document,or was it the representatives of the people who did that task?
But you didn't answer the question--What is the scope of this individual right you keep mentioning. Since it refers to "the people" which in Amendments IV-VII applies to criminal defendants? DO criminals have the right to arms? Likewise, the insane are able to exercise these rights as a part of the people.
Heller-McDonald still limits the term. Instead of using the text to limit it to the Militia, protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments the Court limits the protected class to “law-abiding, responsible citizens” when it finally drills down on the substantive meaning of the Second Amendment, Heller at 63.
You also neglect my question about:
So, you are saying that the phrase:
A well regulated militia being necessary to the security of a free State
Was intended to be without effect,that is it is a mere surplusage? Despite what Marbury v.Madison says about this?
One can only say that the people is not related to the militia if they are going to ignore this clause.
But since Marbury v. Madison says that "It cannot be presumed that any clause in the constitution is intended to be without effect", then it must have some relation to the Second Clause. Hence, the right is limited to the Militia. As Miller said:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee (both part) of the Second Amendment were made. It must be interpreted and applied with that end in view.
Is that simple enough for you to understand?
Simple short answer for you, TS, The term the people in the Second Amendment could refer to two things--the entire citizenry of the United States which includes criminals, drug dealers, terrorists, the insane and so forth since the term is not limited in any of the other clauses.
ReplyDeleteOr the term is in some way limited to a certain class of people.
Heller-MCDonald limits it to “law-abiding, responsible citizens”
The text of the Second Amendment limits it to a Well-Regulated Militia.
Since Marbury v. Madison says that "It cannot be presumed that any clause in the constitution is intended to be without effect", then it must have some relation to the Second Clause. Hence, the right is limited to the Militia. As Miller said:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee (both part) of the Second Amendment were made. It must be interpreted and applied with that end in view.
Is that simple enough for you to understand?
As I said, the "individual right" interpretation does not withstand scrutiny.
"Is that simple enough for you to understand?
ReplyDeleteAs I said, the "individual right" interpretation does not withstand scrutiny."
I think if you total up your postings and comments here, your collective-civic-kumbaya right argument is longer than the Heller and McDonald decisions combined. However, after all that typing and name calling, it really does not matter.
Fortunately, the nation looks to the real justices of the Supreme Court for guidance instead of someone that plays one on a blog.
Supreme Court = Individual Right.
Laci = No one really cares.
Someone please stick a fork in him, he's done.
*sigh* Guess you'll call me some more names now.
Can you offer something more concrete than just your opinion, FWM?
ReplyDeleteWhat are your legal qualifications to criticise my opinion?
You just blow a lot of smoke and encourage me to keep writing.
I'm waiting for you to blow up like Mr. Creosote.
"Can you offer something more concrete than just your opinion, FWM?"
ReplyDeleteI think he offered the latest rulings by the Supreme Court. You seem to ignore them since in your vast knowledge you don't think they are valid. Again, we go with the current rulings as they are not what you think they should be.
"Can you offer something more concrete than just your opinion, FWM?
ReplyDeleteI believe I have, the Supreme Court says so. That is concrete enough even for Brady.
"What are your legal qualifications to criticise my opinion?"
Legal qualifications? To comment on a blog? Bwahahahahahah!
Good one! Thanks for the laugh.
You really need to go outside or have a date or something. No seriously, go do something real and not on the internet before you have some sort of a melt-down.
At the very least you ought to try practicing law in a courtroom or someplace other than an anti-gun blog. You might even meet real people.
What you have said demonstrates a lack of understanding of law and does not demonstrate an understanding of a valid legal distinction.
ReplyDeleteTo put it simply
Miller v. US --unanimous court holding following the Civic Right interpretation of the Second Amendment.
Heller-McDonald--5 Justices change the law to allow for registered firearms to be kept in the home and 4 follow the Civic Right interpretation.
This unsettles the law with both viewpoints being legally valid.
That makes your comment "I believe I have, the Supreme Court says so. That is concrete enough even for Brady."
an absurdity.
You do not appreciate the significance of Stevens' dissent in the legal process.
I hope this helps clarify your failure to understand what I am saying.
The Heller decision specifically says that Miller did not establish the 2nd Amendment as a civic or collective right. According to the Heller decision, no previous court ruled that the 2nd Amendment was anything other than an individual right. If this is the current ruling of the Supreme Court, then I do not see how you think this is unsettled. The Supreme Court has settled it for now. Until another ruling says otherwise, the 2nd Amendment grants an individual right to keep and bear arms.
ReplyDeleteAgain, Asked and Answered.
ReplyDeleteEver think that the Heller Majority may be mistaken?
Additionally, you neglect Stevens's dissent that contradicts your assertion.
There is an overwhelming prepondence of decisions made prior to Heller that contradict you assertion that "no previous court ruled that the 2nd Amendment was anything other than an individual right." Have you read and understood the Sandidge v. United States, 520 A.2d 1057 (D.C. 1987) decision?
That directly contradicts your asssertion that "no previous court ruled that the 2nd Amendment was anything other than an individual right."
I would submit that you look at the cases in this list with the exception of District of Columbia v. Heller, 554 U.S. ___ (2008) and U.S. v. Emerson, 270 F.3d 203 (5 th Cir. 2001), the cases follow the Collective right interpretation as expounded in Sandidge. This includes U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996).
The last case stated:
Rybar boldly asserts that "the Miller Court was quite simply
wrong in its superficial (and one-sided) analysis of the Second
Amendment." Brief of Appellant at 27. As one of the inferior
federal courts subject to the Supreme Court's precedents, we have
neither the license nor the inclination to engage in such
freewheeling presumptuousness. In any event, this court has on
several occasions emphasized that the Second Amendment furnishes
no absolute right to firearms. See United States v. Graves, 554
F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia,
477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct.
89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms
regulation have also consistently withstood challenge under the
Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530
F.2d at 108; United States v. Three Winchester 30-30 Caliber
Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974);
United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974);
Cases, 131 F.2d at 923. We see no reason why section 922(o)
should be an exception.
Additionally, since I have repeatedly answered this question, unless you can come up with a new question or better response than "I want it to be right", I will not continue this futile cycle.
Laci it is not my assertion it was the assertion of a majority of the Supreme Court as written by the majority decision.
ReplyDeleteNow you may think it is wrong, but we don't have to prove that it is right. It is what it is and until another Supreme Court rules otherwise then it is settled law. Feel free to keep writing the arguements for the next time this comes up in court.
Maybe you will be picked to argue the case.
Reread previous response.
ReplyDeleteLaci - until you acknowledge that the current law as defined by the Supreme Court is that the 2nd Amendment grants an individual right to keep and bear arms then you are the one that is ignoring reality. You can bluster away with all of your court cases and legal history, but the fact remains that the Supreme Court ruled that it is an individual right and that is what it will be until the Supreme Court says otherwise or a new Constitutional Amendment changes it.
ReplyDeletereread previous comments.
ReplyDeleteAs promised, my late response.
ReplyDeleteLaci: “Is that simple enough for you to understand?”
No, I am afraid not. My answer, as well as the Heller court’s answer, is the simple answer. It takes an experienced lawyer well versed in quotes to attempt to tackle the arduous task of spinning it into; “’the people’ doesn’t mean the people”. Occum’s Razor is not on your side. Again, if the right was limited to the militia, who o’ why didn’t they just say “…the right of the militia to keep and bear arms shall not be infringed”?
Laci: “As I like to point out, The Constitution begins with the phrase "We the people", but did the entire population take part in the drafting of the document,or was it the representatives of the people who did that task?”
Well, did the document pertain to the people they were representing, or just themselves? “The people” in the preamble refers to the citizens of the United States; else the constitution would only affect those dead people who signed it and none of us would be bound by it. Right?
Laci: “DO criminals have the right to arms?”
It is well established that some rights can be lost. The basic most fundamental right that this country was founded on is freedom. Yet, sometimes we lock people up in prison- at times for life. The key is that we take the removal of rights very serious and have due process checks when we attempt to do so. It shouldn’t be easy.
Laci: “So, you are saying that the phrase: A well regulated militia being necessary to the security of a free State Was intended to be without effect,that is it is a mere surplusage?”
Of course not. The founding fathers believed in a strong militia and wanted them to be well armed and skilled. But that doesn’t mean that the right does not belong to the people. With a right that belongs to “the people” there could be as many armed citizens as the free market allowed, and that they could keep and bear personal arms so that they could practice as much as desired on their own time. That certainly yields a stronger militia pool (not to mention cheaper).
Speaking about surplusage, why bother with the second amendent when Article I, Section 8, Clause 16 of the constitution already grants congress the power to organize and arm the militia? Are you saying a whole amendment to the bill of rights is mere surplusage? Or is it completely separate from Article I, Section 8, Clause 16 and affirms an individual right of the citizens to keep and bear arms- which the aforementioned clause does not?
TS as far as I know Occum’s Razor is not a legal principle.
ReplyDeleteYour last paragraph shows that you totally missed the point.
Reread Patrick Henry's speeches to the Virginia Legislature to see you are wrong.
Also, the legilsative history is available. Nowhere is the belief expressed that all the citizenry, not just those in the militia should be armed.
I would also not that quite a few people wanted to be exempt from Militia service and did not want to bear arms.
Furthermore, your piece is merely opinion.
Nowhere do you provide a facutal basis for your comments.
Please find statements and cites to back up your position.
Otheriwse, you wasted your time producing gibberish.
TS, what about the issue of Standing armies?
ReplyDelete"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment [ I Annals of Congress at 750 {August 17, 1789}])
Or
7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.