The Norseman
Meandering fecklessly
- Joined
- Dec 10, 2008
- Messages
- 8,449
They already are laws in every state that restrict firearms. I wish you would actually inform yourself before making these vacuous arguments.
Another Second Amendment win in California
- Thread starter BStrong
- Start date
newyorkguy
Penultimate Amazing
I would say it's just the reverse. This is seeing what is there.
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.
If the framers intended it to mean individuals have the right to bear arms for self defense why didn't they write:
Probably because they didn't mean that. In 1876 SCOTUS found in Cruikshank v. United States:
The Norseman
Meandering fecklessly
- Joined
- Dec 10, 2008
- Messages
- 8,449
Why not quote the Heller decision which affirms that individuals have the right to keep and bear arms?
All this wrangling over the militia clause is now moot.
newyorkguy
Penultimate Amazing
On the left? Justice John Paul Stevens (who wrote the passage you find so objectionable) was appointed to the Supreme Court by President Gerald Ford.
Last edited:
tyr_13
Penultimate Amazing
- Joined
- Aug 8, 2008
- Messages
- 18,095
Because they didn't mean that, and they didn't have to. The right to bear arms wasn't just for self defense, but the defense of the state as well as other reasons. The right to self defense is a natural right, and the right to bear arms grows out of that.
They could have worded a lot of amendments differently. However, every time they say 'the people' they mean it. Every time. The 2nd is not an exception.
You're misreading what the case was about and the finding. I suggest reading more of the full findings. For those lurking, here is the full paragraph.
On the left? Justice John Paul Stevens (who wrote the passage you find so objectionable) was appointed to the Supreme Court by President Gerald Ford.
And? Did you read my comment as one accusing Stevens of being a raging leftist or something?
EDIT: US v Cruikshank on wiki
Last edited:
Now that's a bit of deceptive editing. The court in Cruikshank was illustrating the fact that it was a common law right.
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.
The same assertion was made for the 1st Amendment:
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It 'derives its source,' to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution.
newyorkguy
Penultimate Amazing
I'm looking for information about Cruikshank v. United States and I'm finding it seems to be generally accepted the case established that the Second Amendment DID NOT grant individuals the right to bear arms. I'm not saying this I'm finding it. Do you understand the difference?
First site is the Law Library of Congress. Here's what they say is in the SCOTUS decision on Cruikshank:
The second one is from the Shmoop site, the "homework helper for students and teachers. They say:
Now I know you two guys are not going to like this but this is what I'm finding. I'm finding it stated over and over that Cruikshank v. U.S. established the Second Amendment did not confer to the individual the Constitutional right to bear arms.
If you think that's wrong, fine. I'm not pro-gun and I'm not anti-gun. I'm pro-truth and anti-bs. Please don't just tell me I'm wrong. I need more than that. Show me something!
First site is the Law Library of Congress. Here's what they say is in the SCOTUS decision on Cruikshank:
The second one is from the Shmoop site, the "homework helper for students and teachers. They say:
Now I know you two guys are not going to like this but this is what I'm finding. I'm finding it stated over and over that Cruikshank v. U.S. established the Second Amendment did not confer to the individual the Constitutional right to bear arms.
If you think that's wrong, fine. I'm not pro-gun and I'm not anti-gun. I'm pro-truth and anti-bs. Please don't just tell me I'm wrong. I need more than that. Show me something!
newyorkguy
Penultimate Amazing
It was in the part you deceptively edited out of your quote.
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.
The court argued that the right exists, both in common law and in the 2nd Amendment, but the federal government didn't have the power to impose it on the states. It and the right being the "bearing arms for a lawful purpose."
tyr_13
Penultimate Amazing
- Joined
- Aug 8, 2008
- Messages
- 18,095
newyorkguy
Penultimate Amazing
I didn't deceptively edit anything. I quoted what I thought was the relevant part of the quote. I also added a link so you or anyone else could read the entire passage.
BStrong
Penultimate Amazing
It's best to read the actual part of the Cruikshank ruling for this to be clear:
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called,in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States.
The underlined is the crux - the right of armed self defense exists without and independently of the BoR or the Constitution - self defense is nothing more than normal self preservation practiced by every creature on the face of the planet, humans included.
This is exactly what is going on in California right now - local governments have abridged rights, and the people have resorted to the courts for protection.
Democracy is working as intended.
casebro
Penultimate Amazing
- Joined
- Jun 14, 2005
- Messages
- 19,788
And since Cruikshank, the USSC has held that the Cony is also restricting to the states*. Therefor, 2A + Cruickshank, + whatever that doctrine is called, means the states can not infringe either.
*"Full faith and honor"? It came up during the Birther debacle. I think.
*"Full faith and honor"? It came up during the Birther debacle. I think.
Last edited:
BStrong
Penultimate Amazing
I've believed for quite some time that the reason Cruickshank is no longer quoted so often wrt this debate is the ability of readers to read the case and the ruling themselves.
Between a racist going after blacks and a selected quote used (I'm not saying by you, I saw this edited quote 30 + years ago) deleting the part about "Neither is it in any manner dependent upon that instrument for its existence," Cruickshank hasn't been in favor for a long time
newyorkguy
Penultimate Amazing
To a true believer this probably all makes sense. To a skeptic not so much. 
The Second Amendment has no other effect other than to restrict the national government? Than how do you ascribe the notion it also has the effect of giving people the right to bear arms for lawful self-defense which, as I understand it, is what the Ninth Circuit Court said the other day.
The right of armed self defense exists without and independently of the BoR or the Constitution. Meaning what? It's natural law? I'm sorry I'm having trouble buying into that.
Self-defense is obviously a right no one can restrict. You have the right to resist aggression. But going from that to people having the right to arm themselves, a right no government body can restrict, that seems like quite a leap to me.
I understand people want it to mean that but I'm not convinced this is legitimate.
But anyway this is going way beyond what I was talking about. That the scope of the Second Amendment has been expanded in recent years. I'm not sure even Antonin Scalia would disagree with that.
The Second Amendment has no other effect other than to restrict the national government? Than how do you ascribe the notion it also has the effect of giving people the right to bear arms for lawful self-defense which, as I understand it, is what the Ninth Circuit Court said the other day.
The right of armed self defense exists without and independently of the BoR or the Constitution. Meaning what? It's natural law? I'm sorry I'm having trouble buying into that.
Self-defense is obviously a right no one can restrict. You have the right to resist aggression. But going from that to people having the right to arm themselves, a right no government body can restrict, that seems like quite a leap to me.
I understand people want it to mean that but I'm not convinced this is legitimate.
But anyway this is going way beyond what I was talking about. That the scope of the Second Amendment has been expanded in recent years. I'm not sure even Antonin Scalia would disagree with that.
WildCat
NWO Master Conspirator
- Joined
- Mar 23, 2003
- Messages
- 59,856
So you don't like Cruikshank all of a sudden now that you've discovered it doesn't mean what you thought it did?To a true believer this probably all makes sense. To a skeptic not so much.
The Second Amendment has no other effect other than to restrict the national government? Than how do you ascribe the notion it also has the effect of giving people the right to bear arms for lawful self-defense which, as I understand it, is what the Ninth Circuit Court said the other day.
The right of armed self defense exists without and independently of the BoR or the Constitution. Meaning what? It's natural law? I'm sorry I'm having trouble buying into that.
Self-defense is obviously a right no one can restrict. You have the right to resist aggression. But going from that to people having the right to arm themselves, a right no government body can restrict, that seems like quite a leap to me.
I understand people want it to mean that but I'm not convinced this is legitimate.
But anyway this is going way beyond what I was talking about. That the scope of the Second Amendment has been expanded in recent years. I'm not sure even Antonin Scalia would disagree with that.
And you might want to familiarize yourself with the concept of incorporation and the dates the various Amendments were incorporated.
BStrong
Penultimate Amazing
To a true believer this probably all makes sense. To a skeptic not so much.
The Second Amendment has no other effect other than to restrict the national government? Than how do you ascribe the notion it also has the effect of giving people the right to bear arms for lawful self-defense which, as I understand it, is what the Ninth Circuit Court said the other day.
The right of armed self defense exists without and independently of the BoR or the Constitution. Meaning what? It's natural law? I'm sorry I'm having trouble buying into that.
Self-defense is obviously a right no one can restrict. You have the right to resist aggression. But going from that to people having the right to arm themselves, a right no government body can restrict, that seems like quite a leap to me.
I understand people want it to mean that but I'm not convinced this is legitimate.
But anyway this is going way beyond what I was talking about. That the scope of the Second Amendment has been expanded in recent years. I'm not sure even Antonin Scalia would disagree with that.
We're kind of going around in circles, but no Amendment of the BoR "grants" or creates a "right," the BoR recognizes the existing rights that every individual (in the U.S. for the purposes of discussion, but I'd assert the basics - speech, self defense, freedom of the press, freedom of religion, right to remain silent - should apply anywhere) The intent (imo) of the BoR is to establish a basis for government to respect those "natural" rights of the individual.
The fact that seems to get various parties twisted out of shape is that self defense was generally understood to be a natural right, and a not uncommon situation, and that arms (as you pointed out, not just firearms) were the tools best used to accomplish the job at hand.
( Arming America and Michael Bellesiles ******** story aside, firearms were very common at the time of the Revolution and modern collections are quite literally filled with documented pre-American revolution rifles, pistols, muskets, blunderbuss, cannon, mortar, you name it.)
At the time the Second was written, and I've noted this elsewhere on JREF, the individual States Constitutions were even more clear in that some specified that the right to possess arms for defense of self and the state would not be abridged.
Something else that must be noted is that at the time of the creation of the BoR and the Second Amendment, there were numerous different types of firearms technology available, from different ignition systems (matchlock, fuselock, different types of flintlock systems, etc) to smooth bore or rifled bore types, multi-barrel pistols and rifles (allowing multiple shots before reload or going to steel or other weapons) Battery guns, mortars, cannon, etc.
No evidence anywhere in the historical record suggests that any discussion was undertaken to reserve types or technology of firearms or munitions to the government only and restrict civilians to possessing only lesser calibers, lesser technology or limited range firearms - and this turns into an interesting question when viewed in light of the big SCOTUS case of 1939 - US v Miller
Miller was the gold standard of gun control court rulings up until Heller, and in Heller Miller was considered at length. UOT Austin law professor Sanford Levinson published an article in the Yale Law Journal titled "The Embarrassing Second Amendment" :
http://www.constitution.org/mil/embar2nd.htm
An aside here. The defendants, Layton and Miller, were not represented before the court. No counter arguments or evidence was put before the court, as the specific firearm involved was a sawed-off shotgun with barrels less than 18" in length (minimum barrel length for shotguns per the National Firearms Act of 1934) and the court had no evidence that such weapons were used in the military and the militia (from the time of the Revolutionary War to the time of the ruling, short barreled shotguns and rifles were used by all sorts of military and militia organizations) their ruling was based on faulty information, and as Levinson (who is a gun control supporter) noted in his essay:
Returning, though, to the question of Congress' power to regulate the keeping and bearing of arms, one notes that there is, basically, only one modern case that discusses the issue, United States v. Miller, 82 decided in 1939 . Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller and a compatriot had not registered the firearm, as required by the Act. The court below ha d dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment.
The Supreme Court reversed unanimously, with the arch-conservative Justice McReynolds writing the opinion. 83 Interestingly enough, he emphasized that there was no evidence showing that a sawed- off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." 84 And "[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." 85 Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use. 86
Justice McReynolds went on to describe the purpose of the Second Amendment as "assur[ing] the constitution and render[ing] possible the effectiveness of [the militia]. 87 He contrasted the Militia with troops of a standing army, which the Constitution indeed forbade the states to keep without the explicit consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion." 88 McReynolds noted further that "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators [all]
It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, MIller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings.
And there it is. The one case continually cited as establishing that there isn't an individual right to keep and bear was actually a case involving a firearm that was required to be register pursuant to the earlier federal law, but in the specific language used by the court they themselves establish a framework of what would be firearms and weapons protected by the Second - Levinson isn't the first person to note this but he certainly was the first gun control supporter to acknowledge it, and in the YLJ no less.
Bringing this back to the original question, I believe that the writers of the Constitution, the men that put themselves on the hook for the Declaration of Independence, the crafters of the BoR and the leaders of the individual 13 colonies never for a moment considered that "Free Men" would not be armed, and that they should be deprived of their arms outside of criminal conviction. Even had those men not taken the steps necessary to form the US, the right to armed self defense existed before they put pen to paper.
newyorkguy
Penultimate Amazing
The problem I have with this is -- besides the fact this is all being stated not cited -- if you take this to it's natural conclusion (the Bill of Rights recognizes the existing rights that every individual has) than everyone everywhere has the right to...carry a gun.
Only I know that's not the way it works.
That's quite a statement. Again, show me a citation.
Trakar
Penultimate Amazing
- Joined
- Oct 20, 2007
- Messages
- 12,637
Really not a fan of "concealed carry." Don't get me wrong, I have no problem with people carrying firearms on their person, I just think they should carry them in exposed and obvious hip or shoulder holsters.
One was provided. It was in the part omitted earlier in this thread:
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.