Shocking, another mass murder, they've become as American as apple pie

[Abatis]

TNothing "inherent" nor "pre-existing" about them.

Again from Cruikshank, this time discussing the right to arms of two former slaves who were disarmed, kidnapped and lynched by the KKK / Night Riders in 1873 Louisiana.

"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress."​

Just like the right to assemble, the right to arms is not granted by the 2nd Amendment thus "it" is not in any manner dependent on the Constitution for "its" existence. The 2nd Amendment only says that "it" shall not be infringed, it does not create "it" so, the right to arms (the "it") is a right that the people possessed before the Constitution was established thus it is a "pre-existing right".

Might as well look at Presser v Illinois, 116 U.S. 252 , (1886) now.

Presser in discussing the right to arms and the 2nd Amendment, repeated the Cruikshank Court's explanation but it replaced the case specific "bearing arms for a lawful purpose" with the familiar construction of the 2nd Amendment:

" . . . the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress."
​

So, besides stating again that the right to arms is not granted by the 2nd Amendment (and thus pre-exists the Constitution), the Court believes the "right of the people to keep and bear arms" is synonymous with "bearing arms for lawful purpose" as exercised by two former slaves in Grant Parish, Louisiana in 1873 for the purpose of self defense in a state where there was no militia because it had been disbanded by the Governor on orders of Congress . . .

And at this point we might as well flow into DC v Heller . . .

" . . . it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”
​

The 1st, 2nd and 4th Amendments codify pre-existing rights, "rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights".

.

 

[Abatis]

So basically reverse the war on drugs, to war on guns.

Something tells me it won't work well.

No war on guns, just enforcing existing laws criminalizing the violent use of firearms.

Most murderers and murder victims are criminals and often repeat offenders.

There will be no real reduction in the core criminal use without removing from society those who kill and maim.

The actual circumstances of the "mass murder" that the OP of this thread is reporting, are a prime example.

60+ arrests, 14 felony convictions but out on the street . . .

A soft criminal justice system makes nothing but hardened criminals.

 

[Abatis]

I stopped reading at "leftists"

Lies, lies, lies.

How can you read anything I write, I thought you put me on ignore?

What a pathetic pussy you are.

 

[Abatis]

Curious to see whether anyone can write a concise statement of what the hell is being debated. Is the question "are guns good?" Or is it "guns should be regulated " or "cannot constitutionally be regulated more stringently"?

Wtf no sense in debate without a clear assertion.

Well dumbfuck, I wrote this to you and you ignored it:

The absolute truth is, there is no constitutional support for any federal gun law that impacts the personal arms of the private citizen.

One of the federal decisions that sustained 20th Century gun control (Cases v US) admitted that but then opined away their own statement, saying (without any support) that the framers couldn't have intended such a result.

SCOTUS has never wavered in describing a personal, individual right. Cruikshank described the right to arms of two former slaves, Presser reaffirmed that the right to arms does not depend on the 2nd, it described the right of private citizens to own guns but that the 2nd Amendment did not protect any right to form themselves into armed groups and march in a city. Miller made no statement regarding the militia status of Layton and Miller as being of any importance to either their standing before the Court or the private ownership of the shotgun; the only thing the Court considered decisive was the type of arm and if it could be effective in battle. In Lewis the Court discussed remedies that would permit a felon to own a gun . . . nowhere was being a member of the militia or the need to join the militia mentioned as being a requirement to exercise the right secured by the 2nd Amendment.

Where is this 200 year history of non-individual right precedent? Please, Please, Please, explain it to me, quote and cite the case.

The truth is, the "collective right" nonsense was inserted in the federal courts in 1942 -- Cases v US for the "militia right" & US v Tot for the "state's right" interpretations.

Heller just slapped the lower courts back into the constitutional fold.

Setting right 66 years of legal perversion is going to take some time. A shit-ton of bad federal, state and local law was built upon and sustained by Cases and Tot and their illegitimate progeny.

I have been debating gun rights for 24 years; I cut my teeth on USENET in talk.politics.guns. Back in the 90's the anti-gun side could actually formulate some reasoned arguments (you did have some law on your side) without the bullshit that this thread demonstrates. I yearn to have those debates again. I lurk on over 30 boards looking for an anti that can actually debate without descending into gobbledygook and bullshit.

Could you be my unicorn, a post Emerson gun control supporter who can compose legal arguments and stay out of the gutter?

Well, if you are so sure of your skills start a thread in APP laying out an argument for federal gun control because the Constitution does not protect an individual right.

I'm proposing you begin because under our system, it really shouldn't be my responsibility to say a right exists, you need to demonstrate a constitutional basis for law exists.

Hopefully the disruptive voices on both sides will allow a one-on-one debate to proceed unmolested.​

You didn't do that because you can't do that . . .

You're not my unicorn, you're just another loud bitch with no balls and no brains that makes excuses - you didn't give me respect - boo-fuckin-hoo -

You are just another in a long list of loud, vulgar, 'post and run' pussies.

PLONK!

(haven't written that in 15 years -- I linked its meaning cause it is ancient internet slang)

 

[domer76]

I was speaking in the context of the statement I had quoted:

​

You (like many on the left) force rights into little boxes that can be categorized and labeled. Sure, the particular activity under inspection in Roe and Lawrence v Texas isn't the same but the liberty interest is and it all is traced back to Griswold and to Harlan's dissent in Poe v Ullman.

"[The] specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). -- Griswold v. Connecticut, 381 U.S. 479 (1965)

​

You are rejecting that doctrine that found the right to privacy in the "emanations" and "penumbras" of the rights expressly enumerated in the Bill of Rights. You denounce the principle that a huge breadth of rights exist that are not listed. You deny the 9th Amendment . . .

And because you see nothing wrong with cutting the right to arms out, and defining it differently, you are denying that the rights recognized and secured in the Bill of Rights are just a small section in a "rational continuum"; an unbreakable chain of liberty made up of many links that all are important and vital.

Justice O'Connor, quoted the relevant part of Harlan's dissent in the opinion of the Court in Planned Parenthood v. Casey:

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:

"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."​

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
​

Some questions for you to answer:

How does your interpretation of the 2nd Amendment fit into the right to keep and bear arms being a link in the much larger "rational continuum" of individual liberty protected from federal (and state) injury?

Can (or should) a right that is found to exist in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights be more respected, more vital and more secure than a right that is actually enumerated in the Bill of Rights?




LOL.

My point is that since you dissect the right to arms out of "the rational continuum of [individual] liberty" you are denying the validity of the doctrine by which the right to privacy was found. Your hostility for the the 2nd Amendment and gun rights in general, is actually calling into question the legitimacy of securing the right of privacy. If you are correct about the right to arms, then Griswold and Roe and PP v Casey and Lawrence v. Texas and Obergefell v. Hodges must be wrong . . .

Anti-gunners have pulled the thread which will undo the penumbral rights theory, extinguishing the right to abortion, contraception and LGBTQ rights.

For you originalists, I dissect the right to bear arms from the guy who originally wrote it, along with the other provisions in the Bill of Rights. And the context of the time in which it was written. And that context was, pally, a collective right, not the individual one that it has morphed into. The original text, as authored by Madison, had a conscientious objector clause in it. That was eventually removed, for reasons unknown, by the Senate. Why would there be a conscientious objector clause for an individual right, not requirement, to bear arms?

Great for your penumbras. Have they ever been argued in a court of law? The answer is no.

 

[Life is Golden]

Domer = owned.

 

[Abatis]

For you originalists, I dissect the right to bear arms from the guy who originally wrote it, along with the other provisions in the Bill of Rights. And the context of the time in which it was written. And that context was, pally, a collective right, not the individual one that it has morphed into.

I would suggest you read Madison's introduction of the proposed amendments. Interesting that Madison proposed inserting the new provisions into the sections of the Constitution they impacted or conformed with. The right to arms along with the other personal rights Madison wanted to insert into Art I, Section 9, after clause 3, No bill of attainder or ex post facto law shall be passed. Seems a strange place to put it if it were a provision defining a power of Congress to regulate the approved arms bearers of the nation . . .

The original text, as authored by Madison, had a conscientious objector clause in it. That was eventually removed, for reasons unknown, by the Senate. Why would there be a conscientious objector clause for an individual right, not requirement, to bear arms?

Except for what became the 9th and 10th Amendments, Madison wasn't the author he was just the editor. He was tasked with taking a mess of proposals from the state legislatures and combining, consolidating and condensing them into a reasonable number of proposed amendments.

Two states, Virginia and Rhode Island proposed a religiously scrupulous exemption to militia service and those themes were not attached to their proposals protecting the right to keep and bear arms.

The House debates include fears of the government using the provision to protect the religiosity of the citizenry by declaring all to be religiously scrupulous as a prelude to disarming the people. Others wondered if the entire nation might become Quakers to avoid militia duty. Overall, the clause was never taken seriously IMNSHO.

There is a good page that compiles much of the debate and lead-in to the ratification of the 2nd. Feel free to review it for something of value, http://www.constitution.org/mil/militia_debate_1789.htm

Another consideration (not represented in the debates -- my own opinion) is that the 2nd Amendment has no voice on militia regulation. The 2nd was never considered to direct militia organization, training or control and it has never been inspected to inform or held to direct any aspect of militia regulation. Philosophically and legally, the religiously scrupulous clause was incongruous with the intent and action of the 2nd Amendment.

 

[Abatis]

Great for your penumbras. Have they ever been argued in a court of law? The answer is no.

They are not "my" penumbras.

The penumbral right theory is how the right to privacy was found. Yes they have been argued in court -- they were invented by the court. . . Jesus H Christ riding sidesaddle on a rainbow farting unicorn waving an inflatable butt-plug, that's how abortion and sodomy became a constitutional right.