Then makes it clear that the role of the militia is "execute the Laws of the Union, suppress Insurrections and repel Invasions" (Article I, Section 8, clause 15).
We need to add in Article IV, Section 4, the Domestic Violence Clause:
"The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."This provision in our Constitution requires that the federal government protect us from harms that we inflict upon ourselves, harms that threaten our health and our survival: in particular domestic insurrections.
Finally, Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
That rules out "natural law" as being legal precedent (as well as other documents such as the Declaration of Independence in addition to misquotations from the founding fathers) .
With the real kicker being Article III, Section. 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.The Constitution seems pretty clear that insurrection is not a right.
Next we come to 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.Now, I need to keep reminding you of the rule of construction: Expressio unius est exclusio alterius.
"The expression of one thing is the exclusion of another." That is items not on the list are impliedly assumed not to be covered by the statute or a contract term. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."
None of that is present in the above passages.
Simple form since I know the calibre of intelligence here:
- If the statute mentions it--it is covered.
- If the statute don't mention it--it ain't covered.
The rules to this are simple and found here. BTW, using the rules, in particular, Internal and external consistency, where it is presumed that a statute will be interpreted so as to be internally consistent. That is, a particular section of the statute shall not be divorced from the rest of the act.The Second Amendment applies to the Militia based upon Article I, Section 8, Clause 16 granting congress the power to ARM the Militia.
Please explain how things which are not specifically can be legally covered? How do you read into the text things which not only aren't present, but are inconsistent with the document?
I can't wait to see the idiotic comments you will make--especially Greg who will show his ignorance of law, yet be all too willing to pontificate despite his lack of knowledge on the topic.
1. You give us a link to statuatory interpretation, but fail to recognize that we're talking about the constitutional interpretation.
ReplyDelete2. Why would Congress be given the power to arm the militias, while there's a specific amendment identifying the people as having the right to arms, if that right is only connected to the militia?
3. If the amendment is meant to identify the right as belonging to the militia only, why doesn't it say so? The right is identified as belonging to the people. That word is used elsewhere in the same document to refer to individual citizens.
4. But if you insist, I'll say that my right to own and carry a gun is listed next to a woman's right to have an abortion on demand.
Ah, Campy - still struggling to accept that Laci is both better educated and qualified on this topic, as well as clearly just simply more intelligent than you are.
DeleteStatutory interpretations apply because statutes expanded on and clarified the Constitution and the interpretation, notably the two Militia Acts of 1792, and the militia act of 1795.
In case your knowledge of both law and history is deficient, that was when founding father - literally referred to as the father of our country - George Washington put down the Whiskey Rebellion and Shay's Rebellion, where asshats with private weapons thought they had some innate and inalienable right to shoot up the government when they disagreed with the government.
A right which is of course, non-existent.
The 'right' pertains to the people to belong to a militia, because - as actual students of history can explain to you, prior to the Constitution going into effect, some people were prevented from joining militias, which was perceived as a threat to fair representation of everyone in that form of the military, AND because it was contrasting the militia conscription or draft of citizens in contrast to those serving in a standing army, who are referred to separately and differently from those serving in a militia who are seen as short term volunteers.
It is the contrast between part time amateurs and full time professionals, not a comparison or contrast between government and private citizens.
If you read the documents that pertain from the period, this distinction is clear. It is only the determination of the gun huggers to ignore that obvious information that make this an issue.
You know - that lack of intellectual integrity of which I consistently accuse you and your fellow gun fetishists.
Any knowledge of Shays' Rebellion and the popular reaction it it demonstrate that there was a no "right to rebellion", which Dog Gone points out. Popular insurrections post-War of Independence have been put down.
DeleteIncluding the civil war.
Dennis v. United States, 341 U.S. 494 (1951) puts paid to the insurrectionist theory:
"The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change."
The "founders" felt that all options had been exhausted when they made the Declaration of Independence as a justification for their actions.
Ah, one of the resident Poo Flinging Monkeys raises her head to sling some insults of Greg and the rest of us in general. Not content with that, she even tries to defend the demonstrably absent intelligence and sagacity of Laci, and writes an less coherent, worse reasoned repetition of his greatest hits.
DeleteDog Gone, you're on to something with your comments about the Second Amendment protecting the People's right to be a member of the militia, except that that would be the bear arms part of it. You left out Keep, and you gave away the farm by admitting that the People are the ones with the right. Therefore, they have the right to own guns and serve in the militia.
By the end of that paragraph, the poor syntax loses me. From the next paragraph/sentence, I'm assuming the point was to suggest that the right to have arms only applied to part time soldiers in militia units like the national guard.
If that was your point, I'd have to point out that a student of history, such as you claim to be, should know that during peacetime, the militia didn't practice much back then (perhaps they should have, but they didn't) and there wasn't a formal institution like the National Guard. The current guard is the result of political and military machinations over the first couple of centuries of this country and was born from a desire to have a part time army that could be forced to go overseas and fight, unlike a pure militia unit.
Finally, I'll come back to your insults about how we haven't read the documents from that time period. We've read them, and we understood them better than you and Laci apparently did. You two get a thing or two right, here and there, but you proceed to miss the bigger picture because you try to force the past to fit your mold for the present.
We, on the other hand, will freely admit that the structure of the militia, the amount of participation in it, and the statutory structure of the organized portion of it have changed over the years.
You are the ones without intellectual integrity, forcing the past into a mold you would like in order to deny the principles that underpinned the drafting of the Constitution and Bill of Rights.
BTW, Campy, if you knew the common law at the time of Independence, you would know that abortion was LEGAL!
DeleteAlso, it is not as much of a jump to say that it would be covered under the first amendment.
Then again, if you are too stupid to not know the difference between a medical procedure and a deadly weapon: then it's probably not worth my time trying to educate you as you lot are too ignorant.
And happily ignorant at that
To educate.
I have a simple question, If you Laci, and doggone really believe that you are correct in your interpretation of the civil rights of the constitution, why do you waste your time here and not in court on the grabbers side presenting your fight there? Really, why not?
DeleteLack of education?
Questions for you two:
Delete1. If people do not have the right to rebel against an abusive government, does that make the United States illegitimate? Shall we return ourselves to the British Empire? How about the people of Syria today? Must they submit to Assad?
2. How can you see our statements that we are willing to work through the political process and then post articles such as this one? You quote a ruling on that subject, but fail to acknowledge that this is exactly what we're doing at present. We've expressed hope that we will never have to endure a civil war.
3. The medical procedure in question terminates a human life. Now it's arguable as to whether the distinction of being more potential than actual matters, but surely you can recognize that abortion is something more meaningful than removing warts. But then you say that such a procedure can be covered by the First Amendment. Let's see: speech, religion, press, assembly, petition of government--if those cover abortion, then certainly the Second Amendment covers private ownership and carry.
1) Campy, it's obvious that you have no understanding of Early US history. It's not my place to educate you.
Delete2) You fail to understand the meaning of Dennis v. United States.
3) "The medical procedure in question terminates a human life"
You are not a doctor or a scientist and that is a highly debatable statement.
In fact, it is one based upon religion, not science, which is what places it under the First Amendment. It is a personal choice based upon one's own ethics: among other things.
Tennessean, can you state your response in plain English and not gibberish?
Your statement:
"The current guard is the result of political and military machinations over the first couple of centuries of this country and was born from a desire to have a part time army that could be forced to go overseas and fight, unlike a pure militia unit."
Demonstrates that you do not have an understanding of Article VI.
Unless you are saying that the Standing army should be disbanded and universal militia service reinstated, you are talking crap.
It was a resounding failure and there is no reason that the Second Amendment should be reinterpreted out of that context.
Anyway, I don't have loads of time to deal with long winded horseshit which isn't supported by facts.
Give me a serious legal or constitutional basis for your opinions.
Which none of you have done as of yet.
And you wonder why I don't bother reading your crap?
I probably shouldn't waste my time answering your question, but I'll give you the benefit of the doubt and assume that you can't understand history, or that you are feigning inability to understand the sentence you quoted.
DeleteMy comment was based on various court cases which established that the militia could only be called up to repel invasion and suppress insurrection--the reasons that the Constitution authorized Congress calling it up. Militia soldiers could not be forced to leave the United States to fight in Mexico, much less overseas.
These precedents would still affect the State Guard units maintained by most if not all states in the U.S. They are militia units that can be called up in an emergency, but they cannot be sent, for example, to Iraq.
Starting with the Dick Act in 1903 and continuing through all present revisions, the National Guard was established as a body of part time soldiers who wore two hats--one as members of their state's militia, and one as a Federal Reservist. This new structure simplified matters so that these men were already reserve soldiers in the U.S. Army and could be called up as such if a foreign deployment was planned. This way, the government would no longer have to count on state militia members and units volunteering for federal service.
Nothing about this history has anything to do with the Supremacy clause, or any other part of Article VI.
Finally, regarding going back to a militia structure rather than a standing army is a topic outside of our current discussion, but if you'd like to start a thread on the merits or lack of merit of such an idea, I'd be willing to discuss it.
Texas carry, Laci is a criminal defense attorney who works quite often with gun law, so he has actual practical experience and considerable education on the subject.
DeleteI am generally considered to be a well informed writer on the topic, and get fairly frequent invitations to write - including on this subject.
Can you claim the same recognition of your knowledge and expertise?
Laci:
Delete1. Genetically speaking, the fetus is human. I am generally pro-choice, but I recognize that scientific fact. Human life is protected by law and personal action, not by religion. Besides, many religious acts have been banned and those bans were supported by the courts--in many cases, in violation of basic rights.
2. You fail to recognize also that morality is prior to U.S. law. Thus, while Dennis v. United States may be interesting and relevant to the legal discussion, I asked you about whether people ever have the right to rebel.
3. Our rights come from our birth, not from our government, and thus when people live under a tyranny, they have the right to rebel and overthrow that government. Do you agree or disagree? Why?
4. Merely saying something is obvious doesn't make it so. The leaders of our revolution decided that Britain was a tyranny with regard to America and revolted. Was their decision justified? If no, are we morally obliged to rejoin the Empire?
5. Again, the Second Amendment doesn't depend on militia service. The right is identified as belonging to the people. You have to explain how that means something other than what the words say if you insist that it's limited to militias.
You mean that Laci gets people reduced sentences and plea bargains on gun crimes? Mike HATES that.
DeleteLaci may have experience in pulling the levers in the court room, and he can state certain black letter principles of law very clearly, but as soon as he starts making arguments, it all falls apart.
As for your comments, DG, you show a profound lack of understanding of many of the topics you address with such confidence and claims of authority. Like Laci, you have more knowledge than the typical gun banner--you wouldn't call a barrel shroud a "shoulder thing that goes up." However, you do make plenty of ignorant comments about guns, the law, the innermost thoughts of conservatives and libertarians, etc.
I know you'll dismiss what I'm saying--after all, I'm just a stupid hillbilly--but you should know that your ignorance shines like a beacon to everyone except the most devoted members of your cause.
So, Dog Gone, you're an informed writer. Welcome to the club. So am I. If you really want to get into a "whose is bigger" contest, we can do that, but something tells me that you're unwilling to put up any--oh, I don't know--actual proof.
DeleteDoggone, yes I can. She may be a lawyer but that doesn't mean she is correct so my question still stands.
DeleteThe dog Laci is female, the human, who uses the blognomen Laci is male. He has multiple law degrees from top universities, one of them considered world class, and has had legal experience as well outside the US; he is licensed and has practiced in multiple jurisdictions.
DeleteYou have not so far legitimately faulted his legal scholarship.
As to my writing credentials, I am currently a syndicated author with NewsTex in the US and Canada, one of the largest syndication services in the world - and I believe the largest in the US. They sought me out, not the other way around, and the reason give was my ability for factual research and independent analysis. Anyone beating down your door for those reasons?
I currently write for multiple entities; most recently I was recruited to work for IVPNews, and the Daily Journalist - both gave the same reasons why they sought me out - depth and quality of research. You?
I now have 4 separate organizations, two of them national, providing me with press credentials. You?
NewsTex aggregates articles from lots of sources. You might as well tell us that your blog can be found on Google. What IVPNews happens to be is anyone's guess, but the Daily Journalist doesn't list you by name. The fact that the latter includes the fellow from Oregon in its ranks of writers tells me they'll take anybody. But also, he writes there under his assumed name, something that strikes me as a lapse in journalism ethics for someone not reporting out of Syria or North Korea, for example.
DeleteRegarding Laci's legal scholarship, we're only talking about what he posts here. What he may or may not have written elsewhere is not relevant to this discussion.
If you'd give up your belief that we're idiots, you'd stop making yourself look like such a fool.
As long as the blognomen "Laci" is being used, Laci shall remain female. I have long known about this person is a male, long known about his credentials and law position. His credentials is not questioned by me. His opinions are however.
DeleteNow is not the time for me to reveal my standings as the conversations here have not risen to that demand yet. Just suffice it to say that I can question motives and responses and still ask the question I presented in my above post.
Laci,
ReplyDeleteFrankly, your own ignorance of the law and of history are on display here. We've addressed the question of whether the 2nd Amendment applies to the Militia or the People before. We've also addressed the rights of people to own arms for hunting and self defense. We've even covered questions regarding the propriety of armed resistance against tyrannical governments.
You never stick around to debate the points we raise. Instead, you come back and make your same old statements from on high as if you were a genius of legal knowledge.
Since you won't come back to discuss the matter, I see no reason to waste my time beating against the wind, repeating ground we've covered before, only to have my response ignored and not answered.
Therefore, unless you're going to change your pitiful little act of pontificating and running, kindly take your Essay question, spindle it, and shove it up your ass.
I never respond, Tennessean, since you never say anything intelligent. You have yet to make a comment which is truly worthy of a response based upon your demnstrating that you understood what I have said.
DeleteIn this case, since you cannot give a proper answer, you say something stupid.
I really don't have the time to educate willfully ignorant people like you, Tennessean (et al).
Actually, Tennessean, you don't refute what I say, but instead repeat rubbish.
It's pretty obvious, you've lost the argument here with your response.
Nothing you have supplied is based in history, law, or fact.
There is no basis for your claim regarding the "propriety of armed resistance against tyrannical governments", or any of the other topics you claim to have showmn me wrong.
In fact, if you understand what I have posted, you would understand the comment "regarding the propriety of armed resistance against tyrannical governments" is not based in the Constitution, or any US law.
Laci,
DeleteI'm impressed that you actually came back to this post and responded at all--this is a change in recent times.
Your statement that I only repeat rubbish with no basis in history, law, or fact is pretty rich considering some of the past attempts at exchanges where I have built arguments based on your same sources, same historical events, etc.
Before I spend a bunch of time dealing with your Essay question in total, let's deal with one segment of it. You bring up my statement regarding the propriety of resistance against tyranny. You then state that my even speaking about it shows that I didn't understand your post.
I understood it just fine. I understood your argument based on the supremacy clause which culminated in a statement that we couldn't appeal to "Natural Law" since the Constitution and laws passed under it were supreme.
I understood all of this, and I said what I said anyway. Why? For the same reason that MLK used natural law as his justification for violating the tyrannical laws of his time--laws that had been duly passed and which were considered Constitutional under the jurisprudence of the day.
Letter from a Birmingham Jail doesn't argue that the laws are unconstitutional, it argues that they are Wrong. When we talk about resisting tyranny, it doesn't matter what the supreme law of the land is, because that law is just man made--what matters is what is RIGHT and WRONG.
So the issue comes down to this, Laci: Is there anything our government could do, whether they did it in violation of the Constitution, or after passing an amendment that allowed it, that would justify resistance against the government? Or would it always be Wrong to fight them because they're the government and the Constitution says that they're supreme?
This is a question regarding the underlying principle. Forget, for a moment, questions of whether resistance would be feasible, or whether such an occurrence is likely to happen--just let us know if there is SOME Line where you would say that it is ok to resist. If you want, say whether the crossing of that line justifies non-violent resistance only, or violent resistance.
I hope you will answer this question so that Maybe we can have more of a discussion than a couple of barrages of insults.
"Letter from a Birmingham Jail" is not a legal document.
DeletePlease try to say something intelligent.
There is no legal or historical basis for waging war against the US.
Short simple answer, what is tyranny?
DeleteI have given more than enough documentation to show it is a large standing army.
Are you willing to dismantle that body and reinstate a universal militia?
Anyway, if one is going to use nebulous terms such as "tyranny, liberty, freedom, etc." you have to realise they are up for interpretation.
Does that mean that any asshole decides that there is tyranny, they have a right to rebellion?
The US has made that same mistake more than once to its detriment.
""Letter from a Birmingham Jail" is not a legal document."--I never said that it was. I was using it as part of a moral argument about what is right, regardless of what is legal.
Delete"Are you willing to dismantle that body and reinstate a universal militia?" Sure, for the most part. Unlike you, I actually agree with the founders that a large standing army is a temptation for those in government. I'd be happy to see an attempt to pare it down and to put most of the weight onto the shoulders of the militia. Some modern technology might require a small standing army to manage it; e.g. the nuclear arsenal, but we could figure out a way to deal with such things. As I said above--if you really want to discuss this, lets open a new thread about it.
As for the bulk of your commentary, your semantics about "what is tyranny" are a dodge of my question. I asked if you think that non-violent resistance, or violent resistance, could ever be justified against the government.
I wasn't getting into the why's, when's, and how's yet. I just want to know if you think it could ever be morally right to say Damn the laws, I'm resisting this. My next question would be where is that line, if you think there is one, but first I just want to know if you even think there is a line.
Tyranny is government violation of basic human rights. The fact that we have to debate those rights at times means that the most desirable answer to tyranny is the political process, but that doesn't always work.
DeleteBut tell us, Laci, are you incapable of seeing how documents such as the Letter from a Birmingham Jail have moral and philosophical force, something that is prior and superior to governments?
I would be genuinely shocked if Laci gave a real answer to your question, Tennessean. When he is forced to face his own inadequacies, he tucks tail and runs.
DeleteWhat's wrong, Laci? Couldn't answer the question? Or was it beneath you to answer the question as asked?
DeleteChickenshit.
Laci is bored with the stupidity. Pretty much everything here has been asked, answered, and your side has failed to rebut.
DeleteHere is the bottom line - there is NO instance where the federal OR state government has recognized ANY right to insurrection or armed revolt in the entire history of this country, nor is any such right anywhere in the Constitution, which reflects the consensus on rights at the time it was written. The thinking on what constitutes civil rights has evolved over time, and continues to change -- as it always has and should. That is why we no longer acknowledge the divine right of kings, and why we continue to change and amend our state and national civil rights. That applies to voting - who and at what age, our civil and criminal judicial procedure, property law, and it continues to apply to every other kind of right INCLUDING GUN RIGHTS.
It is the reason the Universal Declaration of Human Rights has changed and evolved from our constitutional rights (among other origins), and reflects a more modern consensus on rights to weapons...or more precisely a right to safety, not to weapons except for government or other public authority.
So, unless you can show me even one single case where there has been a recognized right to armed insurrection, where the side that was engaging in armed insurrection both won AND show some formal recognition of that right as it applied to that insurrection, you got bupkis.
How about two modern ones, Dog Gone:
DeleteLybia. European powers and the United States recognized the rebels as the legitimate government of that country and gave military aid to them.
Syria. There is growing recognition that the Assad regime is illegitimate. Even the Russians are coming to accept that he has to go.
Of course, the United States is an example from a while ago, but we've raised that already.
As for the Universal Declaration of Human Rights, perhaps you'd consider a pragmatic argument there. Between the two entities behind that document and our Constitution, I'm satisfied with what the U.S. has accomplished with its statement of rights. The universal exercise in wish fulfillment hasn't exactly accomplished much.
Dog Gone,
DeleteWhy do you keep going on about Legal Rights to Insurrection. If you'd read what I said above and elsewhere, you'd see that I agree that there is not a LEGAL right to insurrection. What I've been asking Laci about is the MORALITY of resisting peacefully or violently--Is it moral to resist peacfully? Is it moral to resist violently? What are the conditions where it is moral to do one or the other?
Neither you nor he have answered that question at any time that I have seen it posed on this blog.
Along with Greg's two examples, I'll toss in South Sudan's fight for independence--a fight which Bill Clinton finally got us onto the right side of and W. helped to bring to a successful close.
Were the people fighting their governments in those situations justified? Since you came back to this thread, I'm hopeful you'll come back again and give us an answer--and maybe Laci will too.
This seems like the perfect time to finally get an answer to my Miller question (since you stated you will come back and read the comments this time):
ReplyDeleteUnder your interpretation of the Second Amendment, please explain why the Miller decision examined the gun Miller possessed and determined that a sawed-off shotgun is not suitable for militia purposes, instead of examining the man (Miller) and determining that he has no right to keep and bear any arms because he was not actively involved in a militia. Why would the gun matter under your interpretation? It shouldn’t matter if it was a sawed-off shotgun, a full length shotgun, a machine gun suitable for militia purposes, or a musket suitable for militia purposes in the 18th century- Miller had no right to keep and bear any arms because he was a part of the “people” and not part of the “militia”. That is what you say, but it is not consistent with the Miller decision. So what would the decision have been if the gun Miller possessed had been determined by the courts to be suitable for militia purposes? The decision infers that it would be protected for individuals to keep and bear, yes?
TS, asked and answered. Please use your minmimal intellect to find that previous response, which was reposted at least once.
DeleteI hate to tell you that Justice William O. douglas, who wa a member of the Miller Court contradicts your interpretation.
But, since you are obviously not intelligent enough to get your head around it, check out this post for William O. Douglas' gloss on that decision.
"The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”"
Laci,
DeleteThat quote from Douglas states that the operative issue was the usefulness of the sawed off shotgun in maintaining a Militia. As TS states, the decision goes on at length regarding the unsuitability of such a gun for militia service. It never touches on whether Miller had a right to a protected firearm, only on the question of whether this firearm is protected or not.
If the court was supporting your interpretation of the Second Amendment, they would have simply stated that Miller was not a member of the militia, and that the Amendment was, therefore, not applicable to him. The case would have been dismissed for lack of Standing before any other legal argument was even considered.
Asked and answered--try to find the answer.
DeleteI didn't ask anything, you stupid bitch. I made a statement offering a refutation of your pitiful comment. You may refute, you may ignore, or you may fling shit; I care little.
DeleteLaci, we're not in a court of law here. Mikeb demands proof that I said something all the time. If you're unwilling to back up your claims or to answer questions as they're posed, we'll take it as given that you are wrong or have no answer.
DeleteWith limited exceptions, a party cannot have standing to challenge the constitutionality of a statute unless they will be subjected to the provisions of that statute. There are some exceptions, however, e.g. courts will accept First Amendment challenges to a statute on overbreadth grounds, where a person who is only partially affected by a statute can challenge parts that do not affect them on the grounds that laws that restrict speech have a chilling effect on other people's right to free speech.
DeleteThe only other way someone can have standing to challenge the constitutionality of a statute is if the existence of the statute would otherwise deprive them of a right or a privilege even if the statute itself would not apply to them.
Greg, I am under no obligation to answer your questions.
DeleteI believe that you used the term "petulant" to describe me, which means "Childishly sulky or bad-tempered".
I'm sorry, but I went to look at whet you wrote and saw
"1. You give us a link to statutory interpretation, but fail to recognize that we're talking about the constitutional interpretation."
add in
"3. If the amendment is meant to identify the right as belonging to the militia only, why doesn't it say so?"
Doesn;t it begin "A well regulated militia being necessary to the security of a free state"?
I think that pretty much has that one covered.
As I said, if you do not understand the meaning of the term ignorance, I really do not have time to waste on trying to educate you, Greg.
Those statements shows you have no idea of what is going on here.
I do not have time to read garbage and try to educate people who are unwilling to learn.
Or deal with reality.
Nice statement of the law regarding standing.
DeleteNow, given that, why would the court not have dealt with Miller on the grounds of standing if they were taking your collective interpretation of the Second Amendment?
Short and simple answer, Greg, I can show you facts--yet you will chose to not pay attention to them.
DeleteYou will not let your opinion be clouded by facts or knowledge.
Instead, you will present your uneducated opinion and expect me to accept it for something of value, when it is worthless.
And again, Laci dodges the question about why the second part of the Second Amendment says the Right of the People rather than the right of the Militia.
DeleteLaci, your king is still in check. In fact you didn’t even make a move. Your Douglas quote doesn’t refute what I said, or answer either of the two questions I asked: why does the type of gun matter? And what if there WAS evidence that the gun had some reasonable relationship to the militia? To agree with you, Douglas would have had to have said:
Delete"The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of [any firearm]*. The law was upheld, there being no evidence that [Mr. Miller had been enlisted in the National Guard (i.e. the well regulated Militia of today)].”
*understanding that the law in question didn’t apply to all firearms, but you have always concluded that the second amendment would allow for this.
Again, question #1: If you are right, the gun shouldn’t matter. So why did they look at the gun instead of the man?
Question #2: Substitute a sawed-off shotgun for another NFA arm- the Thompson sub-machine gun. No one can claim it serves no militia purpose since it was issued to troops. So now there is evidence that the gun has some reasonable relationship to the preservation or efficiency of a well regulated militia. What would the decision be? Douglas’ reason why the law was upheld no longer applies.
Qxb3++
Laci, you always fail to see the main part of that amendment. "...the right of the people... shall not be infringed." Still and again, you refuse to explain why the amendment was written that way. If it only applies to the militia, why introduce an extraneous element in the main clause of the sentence?
DeleteThat points to the fatal flaw in your argument. Until you can answer that, you have no case.
Queen to queen's level three--give the countersign.
DeleteAre you tipping over your king, or are you going to answer the simple Miller question I asked?
DeleteWhy did the type of gun matter in the Miller case? What would the decision have been if the gun in question were a Thompson sub-machine gun instead of a sawed-off shotgun? The reason stated for upholding the law no longer applies.
Well, Campy, Tennessean, and TS, you did not fail to disappointment me when I said you would demonstrate your level of ignorance.
ReplyDeleteIn Tennessean's case, he cannot refute facts.
I may not be a genius of legal knowledge, but it is pretty obvious that the Constitution is against you.
So, if I never stick around to debate the points you raise--it's because you never raise any points wothy of paying attention to.
Ignorance may be said to be bliss, but in your case--it's seriously dangerous.
Short answer--if you want a response, please say something intelligent.
ReplyDeleteI don't deal well with ignorance.
Wow, multiple insults to me. I must have hit a nerve.
DeleteIf you weren't so fucking arrogant, you'd realize that it's a lot easier to label something as ignorant than to show how it is ignorant. You offer irrelevancies as evidence and rage and vinegar as proof.
DeleteWhen you're ready for an intelligent and respectful conversation, we'll be here. Until then, you remain a petulant excuse for a man trying to fill the lack of meaning in his life by attacking others.
Greg, I HAVE shown how it is ignorant.
DeleteThe fact that you don't understand that proves my point.
You are ignorant.
Simple question, Greg,
DeleteDo you know the meaning of the term "ignorant"?
Your comment suggests that you do not.
Laci,
DeleteYou've always been an idiot, but when did you turn into E.N.? And how did it happen? Is it a bite like a werewolf, or an STD?
Laci, the definition of ignorance is to not understand the scope of what there is to know, and how much or how little one knows in that context.
DeleteAll these clowns do is parrot bad resources, without actually knowing what constitutes good scholarship.
There is no shortcut to doing the work of learning, but they keep trying, and failing.
Ignorant: to lack knowledge, derived from ignore.
DeleteWhat you fail to show is that you're right. You make a lot of claims that are not logically definitive. You bring up a lot of history that is irrelevant.
Beyond that, you're such a boorish, uncultured, and awkward piss artist that your words are barely worth my time--and then, only because someone else who is rational and willing to discuss things in a civil manner may benefit.
Well said, Greg.
DeleteAs for Dog Gone's comments, I don't know that she would know good scholarship if it bit her in the ass. I have yet to see evidence of any on her part.
Greg, what are your legal qualifications? DO you have a law degree, have you practised law?
DeleteIf anything, you have come here with opinions which are lacking in legal or constitutional basis. You have not refuted my proposition, which means you have failed to answer the question.
You have tried to divert the topic to abortion.
If anyone is a "piss artist", Greg, it is you since you shold know that your opinions are not backed up.
In fact, you are engaging in ad hominem since you cannot refute the constitutional provisions provided without using your opinions.
You are entitled to your opinions, Greg, but realise that they are not based in fact.
Yo, Poochie. I have a law degree and practice law, and I have to say, Greg typically does a better job of stating and analyzing the law than you do. You say that Greg doesn't back up his opinions, but he backs them up with references to cases, sections of the Constitution, and relevant primary sources just like you do. Well, not just like--he actually understands what he reads--you just make it up as you go and try to force old precedents and history to fit your narrative.
DeleteI have cited legal scholars who support the idea of an individual right in the Second Amendment--Laurence Tribe, Akhil Reed Amar, and Sanford Levinson--but you've ignored that. Here's a clue, Laci. Just because you believe something doesn't make it true. Just because you interpret a text a particular way doesn't make that the only possible interpretation.
DeleteTo the one that refers to itself as "Laci the Dog":
DeleteThe bigoted commentator "Laci the Dog", I presume was intent on demonstrating its intellectual superiority (which exists entirely as a figment of her imagination) to these "primitives", the "rednecks" who comprise of the majority of Americans, in a rather simian attempt at mental chest-beating. This irreverent screed serves as yet another example of the common leftist ploy to falsely present one's intellectual superiority over a carefully chosen fool, and therefore construct a "Potemkin Village" in place of a factual argument, based on the common assumption that verbal eloquence is a proper metric of intelligence, thus "correctness".
It is rather humorous that our Laci, as he is the object of much bemusement at his difficulty in understanding the full ramifications of our Norman legal heritage, and is thusly incapable of understanding how a fundamental right to arms is implicit in common law, has added to his previous dogmatic bigotry by branding those who he happens to disagree with as unworthy of human dignity and life.
Like most of his kind, he seems bewildered by the gradual decay of Feudal nobility, and the progressive theme of equality among members of our species, regardless of sex, faith -or lack thereof-, or primeval heritage, and asserts the elitist notion that, had Britannia's courts felt bound to the rigors of law and precedent and served as the riotous bulwark of liberty, the Bill of Rights of 1689 would have been interpreted to apply to all persons equally. Common Law also provides certain absolute defenses to prosecution, which taken as a whole, are indicative of an individual right to posses and proliferate arms suitable for the defense of ones person, dwelling, and community. However, this seems lost on our canine friend as he appears to be mired in the simian (and somewhat racist perhaps) belief that humans are to be judged by ones caste, as opposed to individual merit.
Perhaps you should have payed more attention? For reason of genetic inadequacy, or the lack of academic achievement, you fail to convince me that you possess any of the legal, mental or historical ability or authority which you falsely adorn yourself with, in an act of futile self aggrandizement. Such irreverent behavior can be likend to the antics circus monkey adorned with a hat and cape. You are in layman's terms, a "poser".
How dare this "Tennessean" compare our Brother Number One to such a wretched creature as this Laci. You show your true western decadence in your dogmatic comparisons to fringe idiots like him.
DeleteHere's another point to consider. I don't really care what the "original intent" of the Founders was, beyond the words written in our Constitution, when we're trying to figure out wha the law of the land is. That's the text that we are obliged to work with. The militia is offered as the reason for writing the Second Amendment, but the right is identified as belonging to the people. That's the plain language.
ReplyDeleteLaci, you consistently fail to answer why the amendment would identify the people as having the right--people being used throughout the Constitution to mean all of us individually--if it was supposed to mean the militia or the state. Why write language that is ambiguous if all that was meant was a government-approved organization? If, instead, you read the text as we do, there's nothing ambiguous in it.
Greg, you don't half talk shit:
Delete"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
We can get into the case law which elaborates on the Constitution, but the law is pretty clear here.
Even someone like you should be able to see that.
Anyway, this is not about the Second Amendment--this is about the "right to rebellion".
Now, if you can't answer the question, you change the subject. Which you keep trying to do.
Also, you have made it clear that you are not really interested in the law.
Anyway, I have said it before that it cannot be presumed that any clause in the constitution was intended to be without effect. Likewise, one looks to the proeme to clarify the text.
The proeme, states that a well regulated militia is necessary to the security of the free state.
Why say that if it was unimportant to the text?
Anyway, Greg, does the term "We the people" mean every individual person in the United States was involved in drafting the Constitution? Under your interpretation--it would.
for someone who claims to understand, let alone teach, the English language, you are woefully ignorant of figures of speech.
Laci,
DeleteWhen interpreting what People means in the Bill of Rights, you look at it's application in other parts of the Bill of rights, not in the Preamble of the Constitution. If every individual person has first Amendment rights, and every individual person has 4th and 5th Amendment rights, the logical conclusion would be that the right of the People in the 2nd belongs to all of the people. Your arguments about the first clause mentioning the Militia is weak on the surface, and when one looks at the historical context, it becomes ludicrous.
1. There's nothing unclear about the main clause of the Second Amendment. It's only unclear to you, and thereby needing clarification, because you don't like what it says.
Delete2. "We the people" is obviously symbolic. "People" in the First, Fourth, Ninth, and Tenth Amendments are not figurative. They apply individually. That being the case, you must provide good reason to believe that "people" in the Second is not meant to do the same. Merely reading the dependent clause of the sentence is not enough, since the right being identified isn't named as belonging to the militia.
3. Of course, no legal system can recognize a right to rebel. But are you capable of taking a step back from the world of your profession and seeing that rights and morality are higher than any legal code?
4. A tyrant will deny the right to rebel against his rule. So I'll ask the question again that Tennessean and I have posed to you before. Under what circumstances would you accept that rebellion is morally justified?
Your understanding of the 2nd amendment is spot on, as is your description of Greg's insulting manner and lack of intelligence. Why you even bother with him on a daily basis, is beyond me.
ReplyDeleteHe doesn't. He acts like a stray dog, passing through looking for food and relieving himself on someone else's lawn.
DeleteIt seems there are two different things being questioned here.
ReplyDelete1. Does the Constitution as written provide for an individual right to keep and bear arms?
and
2. Do people have the right to insurrection against the government?
As for #1, that is very easy to determine since the Supreme Court recently ruled on this and as of this moment the Constitution does indeed provide an individual right to own a firearm. Until other laws or court decisions overturn that judgement, then it is the supreme law of the land as noted by Laci in his original post.
As for #2, I would say that under the law, there is no right to insurrection against the government. If you try and fail, the current government will punish you as noted in the law. Of course, if you succeed, then you get to re-write the laws and brand the old government as illegal or illegitimate and you will be seen as a founder of the new country. For example see history on the US revolution against Britain or any other successful overthrow of a former government.
Well, this is the best response of the lot.
DeleteAlthough, the Supreme Court in rewriting the Second Amendment did not provide for an unlimited personal right to arms. In fact, the right is severely limited,
It has also placed the Second Amendment firmly as a wedge issue for years to come.
BTW, you get a C+.
DeleteC+ Grade is based on a failure to have actually read the material and demonstrate a knowledge of that material.
DeleteIt's just that your comment is slightly more informed than the others presented here.
Well the Supreme Court stated that certain restrictions to the right were permitted, but they have not provided an exhaustive list of those restrictions. They did specifically state that the Amendment granted an individual right, not a group right to only the militia.
DeleteSo, as I stated, until further laws are passed or future judgements rendered (or executive orders issued), the 2nd Amendment guarantees an individual right to own a firearm.
On a separate note, it could be said that certain rights are inherent by our humanity. It just may be that the government in power refuses to let you exercise those rights. So the question then becomes do rights originate from the government or from our humanity. From that point of view (rights are inherent by our humanity), you would have the right to insurrection, but it would not be recognized by the the government you were revolting against. In the end, it all comes down to who ends up in power and making the decisions that other people agree to follow. So far, the American government has mostly kept people safe and happy enough to not form a large revolt (the Civil War being the biggest exception) and so most of the people are happy with the rights that the government acknowledges.
DeleteWhat would happen in a large enough percentage of the population chose to break away and this time they won the war? You could say they had no right to do that under the law, but if the current government can't enforce that law, then it would be somewhat of a moot point wouldn't it? So in the end, did they have the right to revolt or not?
To my knowledge, I'm the only one here who has a lengthy history with giving grades to people, having taught college composition and literature for more than a decade. I've also taught math, but that's a story for another day.
DeleteAnonymous, you raise excellent questions and provide abstracts of good answers to them.
Laci, your constant bullying puts you at risk of being referred to the campus police.
Anonymous, that's precisely what we did in the American Revolution. If Laci is to be believed, our nation is invalid, and we're all subjects of the British crown. Note that he has yet to answer that question.
DeletePooch, what is the palladium of liberty?
ReplyDeleteorlin sellers
Until you can provide that you actually understand what you are talking about, I would prefer not to respond.
DeleteUsing cliches only shows that you parrot, not understand.
In fact, Orlin, you are the dumbest of the lot.
Laci,
DeleteYour arrogance knows no bounds. Before today, I thought you were an annoying ass who was a bit prideful and happy to keep parroting stupid, failed arguments from other anti-gun lawyers.
However, today you have set yourself above the pack. It's rare that I find someone with this big of an ego--one that is seriously as large as E.N.'s, copying his Black Cap persona's habit of taunting while refusing to engage, but dangling the possibility that if we can just prove ourselves half way worthy of your time, you'll condescend to grace us with your wisdom.
Quite frankly, you can blow it out your ass.
Pooch, you be the dumb dog.
DeleteAmendment II
Document 7
St. George Tucker, Blackstone's Commentaries 1:App. 300
1803
This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
The Founders' Constitution
Volume 5, Amendment II, Document 7
http://press-pubs.uchicago.edu/founders/documents/amendIIs7.html
The University of Chicago Press
Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.
orlin sellers
St. George Tucker, in his commentaries on Blackstone, wrote that phrase about the right of self defense. He compares our Second Amendment to the statement in the English Bill of Rights which has a much more limited scope.
DeleteGreg, I take this to mean something more, "Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction"
Deleteorlin sellers
That's how I read it, Orlin.
DeleteGreg, please back up your opinions with a facts.
ReplyDeleteSo far, you lot have only been providing your uneducated opinions without any citation to legal authority.
The sun's energy primarily comes from the fusion of hydrogen atoms into helium.
DeleteSee how an irrelevant fact doesn't add anything?
I present facts, but I also use logic. In this discussion, the latter is relevant to what we're doing here.
Grow up. Get a life, or at least learn some facts for a change. It is telling when the likes of Greg has more knowledge then a purported "lawyer".
DeleteGreg, go back, reread your comments.
ReplyDeleteDo you see how you demonstrate ignorance rather than knowledge?
If not, it may be a lot late for me to try to teach you as you are making it pretty clear you are a hopeless case.
I'd prefer that you address the points that I've raised. You're a lawyer, and I'm not. Presumably, you know the legal system intimately, while I have such an acquaintance with it as any well-educated citizen has. But I have brought up arguments time and again that you simply ignore.
DeleteI call you a boorish piss artist because if your goal is to educate us, you're doing a lousy job of it. I can tell you from having taught more than 2,000 students over more than a decade that respecting people who are participating in the discussion works much better than insulting them.
But since you refuse to take any questions or objections seriously, and since you fly into a filthy rage at anyone who disagrees with you, I can only conclude that you actually know very little and are desperate to hide your ignorance and dull wit. If that isn't the case, why do you use the favorite technique of someone who is in that condition?
Of course, I doubt that you have any interest in a rational discussion. Your purpose here is to stroke your own ego. You love to cite mental health professionals, but you neglect the possibility that some of us have also looked into that subject and can recognize you for what you are.
There's this fairly common attitude among those with specialized education, training or experience. Sadly, the more value society places on that education,training or experience, the more likely a person with those qualifications is to display the attitude. The attitude is one of arrogance. It typically manifests itself when a person's expertise, or opinion based upon that expertise, is questioned. It's fairly common among some groups of physicians, though it's hardly limited to them. When a health care worker, or sometimes even a patient, questions a physician's conclusions, statements or beliefs the response is disdain and an arrogant reminder that the questioner lacks the physician's years of medical education and experience. If the questioning continues in the face of an attempt to overwhelm the questioner, anger is often the result. Anger, of course, typically arises from fear. That can be fear of any number of things. Fear of losing control, fear of looking weak, fear of being wrong (and looking weak or incompetent), or any number of other fears. Laci's behavior here certainly appears to be this sort of behavior, reflecting the arrogance of a person who expects to have his point of view accepted simply because of his expertise and the anger arising from fear when unable to force his opponents into accepting his point of view. Until and unless a person is able to recognize such behavior in himself, there is no hope of changing it.
ReplyDeleteThere is a very old, perhaps even ancient, rule of rhetoric and logic that notes the competence of a speaker has no relevance to the truth of his argument. Pirsig illustrated it by saying "The worlds greatest fool can say the sun is shining. That doesn't make it dark outside." It's tempting to confuse speaking on the basis of our expertise with irrefutable knowledge. They aren't the same. Expertise doesn't guarantee accuracy or correctness.
Another lesson from logic and rhetoric: The more convoluted or torturous the logic, the more suspect it is. That is a problem with Laci's arguments.
Finally, there is this: Sometimes we fail to appreciate the supremacy of the principle or concept over the specific. When we do this, the specific (more accurately, the way we interpret it)becomes the primary concern. When this happens, it's almost a guarantee that our interpretation of the specific will take us further and further away from the principle that gave rise to it. It's easy to look at a document like the Constitution as a series of articles, sections, clauses and amendments and completely miss, or only give lip service to, the greater principles and concepts. When it comes to the Constitution in general, and the Bill of Rights specifically, the principle is the freedom or liberty of the individual citizen. Conflict is almost guaranteed when those who argue from principle debate those who argue from specific.
NO.
ReplyDelete"When it comes to the Constitution in general, and the Bill of Rights specifically, the principle is the freedom or liberty of the individual citizen. Conflict is almost guaranteed when those who argue from principle debate those who argue from specific."
The Constitution is NOT representing the principle of the freedom or liberty of the individual citizen. The Constitution was written to set up our government, to define the branches and the offices in it. While there are some limitation on the actions of that government included, the primary function is NOT about individuals at all, only relatively incidentally addresses individuals in forming it.
THAT is why we needed ten amendments added fairly quickly.
The 2A is about militias as an alternative to a standing army. OTHER law, in each colony, which subsequently became each individual state, derived from English common law, dealt with issues like Castle Doctrine and private gun ownership and use.
AND CLEARLY, there is NO provision whatsoever for legal insurrection against that government - IF THERE HAD BEEN, our founding fathers and every president since Washington, would have NOT responded with armed military force to suppress them.
Any claims to the contrary are referring to an alternate universe document, the 2nd DUHmendment.
Dog Gone, some of us are smart enough not to copy the pathetic attempts of others to be funny, but then there's you. DUHmendment? You sound like my mother trying to pretend that she's cool.
DeleteBut you bring back that line about how the government doesn't recognize insurrection. Indeed. Are you saying that the United States has no validity as a nation? After all, we fought and won an insurrection against the British Empire. The fact that the French helped only makes things worse, since that was an act of war on their part.
So tell us: Are you arguing that we're really subjects of the British crown?
Laci can't seem to answer my question, so maybe you can, Dog gone. If the Second Amendment is about Militas, how come the SC never questioned whether or not Miller was in the National Guard? Don't you think that would be pertinent, if not the only question to ask?
DeleteSo far, our host MikeB is the only one who doesn't ignore this question.
Of course. How silly of me to think the Constitution setting up a republic rather than some other form of government had anything to do with freedom. Likewise, limitations on suspending habeas corpus, prohibitions against bills of attainder and ex post facto laws (for both the federal government and the states), limitations regarding the charge of treason, issues of copyright and patent protection and the right of the people to vote for their representatives are surely minor and incidental points in the document. While there were those who saw the need for amendments that more specifically protected individual liberty, not all agreed with the necessity, apparently thinking a republic that, in the words of the Declaration of Independence, derived "its just powers from the consent of the governed" was a sufficient protection (I disagree, but that's not really the issue). Frankly, your argument is specious.
DeleteThere is sufficient historical evidence to suggest the founding fathers and their contemporaries have a different view of the 2nd Amendment than you. You'll pardon me if I elect to side with them rather than you.
If you could avoid attempting to put words in my mouth, that would be great. I didn't address insurrection of any sort. Instead, I addressed an attitude vividly displayed, in this case, by Laci. Now, if you want to address the points I actually made, and do so like an adult, that would be great.
Freedom to the founding fathers was defined as representative government. The constitution defines that government, which includes things like post offices and armies.
DeleteHow those things are dealt with was their concern.
Retired mustang, when the founding fathers wrote the 2A beginning with the premise of militias, they were not talking about private firearms or individual self-defense. They were talking about public firearms, and who could use them in the militia.
It was a problem in the colonies that some people and political groups tried to dominate or control those militias rather than have them open and requiring service from everyone.
The ONLY legitimate 2A view is in the words themselves.