How come some constitutional rights can have such massive restrictions... - Page 3 - TigerDroppings.com

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Siderophore
LSU Fan
Member since Nov 2010
3334 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

I mean it just makes sense...if the 2nd doesn't only apply to the militia, why mention the militia. And at the time we had no standing armies. The militia was for all intents and purposes, our military,


It is saying the people need to have the guns so that they have the option to form milita.

The founders felt that is critical to maintaining a free state.






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alexman
Member since Oct 2012
655 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

I mean it just makes sense...if the 2nd doesn't only apply to the militia, why mention the militia. And at the time we had no standing armies. The militia was for all intents and purposes, our military,


It does apply, people just like to forget basic sentence structure when reading things.






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MFn GIMP
LSU Fan
Owensboro, Kentucky
Member since Feb 2011
8301 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

Are you in a militia? Nope


Yes. LINK
quote:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.






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Five0
USA Fan
Member since Dec 2009
4655 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

Actually it's only been since Scalia and his Heller 5-4 decision since the SCOTUS has had that interpretation. For two hundred years before that, no.


The decision was not no, it just was not a decision.

quote:

I mean it just makes sense...if the 2nd doesn't only apply to the militia, why mention the militia. And at the time we had no standing armies. The militia was for all intents and purposes, our military,


Militias belonged to the states. Not to mention the Bill of Rights were spelled out as rights for individual citizens.






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Vegas Bengal
Member since Feb 2008
23384 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

It is saying the people need to have the guns so that they have the option to form milita. The founders felt that is critical to maintaining a free state.


The states formed the militias, this was not Libya or Afghanistan.






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alexman
Member since Oct 2012
655 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

It is saying the people need to have the guns so that they have the option to form milita.

Where does it say option?

I swear this is the whole reason the founding fathers implemented an electoral college. Because they know the people of this nation are dumb and wanted to protect the nation from their stupidity and thats why the electoral college is allowed to vote differently from the people



This post was edited on 1/16 at 10:29 am


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MFn GIMP
LSU Fan
Owensboro, Kentucky
Member since Feb 2011
8301 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

Actually it's only been since Scalia and his Heller 5-4 decision since the SCOTUS has had that interpretation. For two hundred years before that, no.

Interesting but the decision in Dred Scott says otherwise.

quote:

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went......

Nor can Congress deny to the people the right to keep and bear arms,
nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.


And U.S. v. CRUIKSHANK
quote:

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 post was edited on 1/16 at 10:35 am


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llfshoals
Alabama Fan
Member since Nov 2010
1380 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

Yes i love sitting in a coffee shop when some stranger walks in with his rifle around his shoulder. i have no clue who he his, what his motives are. This shoud definitely be allowed


Since I'll be carrying mine, I'm not terribly concerned what he's going to do with his.






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Siderophore
LSU Fan
Member since Nov 2010
3334 posts

re: How come some constitutional rights can have such massive restrictions...


If I just repeated what the thing said, what's the point in explaining what it means.

The free state line is in aside rather than being the flow of the sentence.

So sentence structure suggests it is explaining the inclusion of milita.






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Mohican
LSU Fan
On a lake in MS
Member since Nov 2012
1991 posts

re: How come some constitutional rights can have such massive restrictions...


It really is simple. The founders founded this country in direct response to a tyrannical government. In order to prevent a government from becoming tyrannical, the founders instituted a representative system of checks and balances, as well as guaranteed certain rights in an effort to keep the government from ever overreaching in power and becoming tyrannical again. They felt that the people must be able to form militias against such tyranny if it were to ever occur again. A militia, defined as an irregular army or an army composed of ordinary citizens, requires possession of arms.

A modern militia could easily be formed today. As others have said, it doesn't matter whether or not you think the militia would be successful. If half the country formed such a militia in response to a government being overly oppressive, I would guess it would have somewhat of an effect.

The Constitution wasn't written on a whim. It was written to prevent what they had just fought a war over from ever happening again. It would be naive to suggest that it could never happen again - and thus the Constitution is outdated. Human nature and history tells us that the slightest of power vacuums WILL eventually be occupied, which is why many of us do not regard the Constitution as some antiquated piece of paper that some old guys wrote some cool ideas on back in the day. There is a process to change the Constitution. If enough people feel it should be changed, it can be.






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llfshoals
Alabama Fan
Member since Nov 2010
1380 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

quote:
The founding fathers say otherwise. As do multiple SCOTUS rulings since then on the subject. And to be honest, we don't care what you think. As much as it may pain you, you're opinion really doesn't even matter.



Actually it's only been since Scalia and his Heller 5-4 decision since the SCOTUS has had that interpretation. For two hundred years before that, no.

I mean it just makes sense...if the 2nd doesn't only apply to the militia, why mention the militia. And at the time we had no standing armies. The militia was for all intents and purposes, our military,


It makes sense if you read it. You should try it sometime, instead of having someone else tell you what it says.

But since you're apparently quite good at other people telling you what to say, I'll give it a shot. I realize this will be hard on you, since I'll use actual facts, logic and reason.

First...you need context. In the days of the founding of the Constitution, what was the militia?

It was every single male capable of bearing arms and willing to do so.

How was the militia armed? They brought their own personal weapons.

Who gave the militia their orders? Typically it was Captains THEY elected themselves. Militia were notoriously unwilling to take orders from anyone else.

So you have people, not necessarily even citizens of the country who comprised the militia, all they had to do was show up...armed and ready to fight. In point of fact, if you look up the few organized militia rules of the day, you'll note they're REQUIRED to possess their own arms and keep them in good condition.

The founders knew this, apparently you didn't. This is why the latter sentence in the 2nd amendment is so emphatic and unable for anyone with 2 functioning brain cells to misunderstand.

Those who dispute it do so from an intentional desire for it to be different.

THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.

Shall not be infringed is impossible to misunderstand.

The PEOPLE is referenced many times in the Constitution. Who does it reference? EVERYONE.






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braindeadboxer
LSU Fan
Utopia
Member since Nov 2011
5015 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

llfshoals


You are

They can't just accept that they don't have the first clue about the 2nd amendment other than "it lets people kill kids." The 2nd amendment is one of the easiest amendments to understand. The left is comprised of simpletons however...






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Vegas Bengal
Member since Feb 2008
23384 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

The founders knew this, apparently you didn't. This is why the latter sentence in the 2nd amendment is so emphatic and unable for anyone with 2 functioning brain cells to misunderstand.

Those who dispute it do so from an intentional desire for it to be different.



Can you not have a discussion without resort to childish attacks. And that goes for most posters in this thread.

The OP makes a good point. And he was personally attacked.

The fact is, reasonable minds can differ and have differed for 200 years. And differed in Heller 5-4. And in all probability, if Obama replaces one of the 5, it will swing back.

This was Stevens' dissent in Heller where he discusses the phrase:

quote:

Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.




You are correct in your interpretation because by a 5-4 vote in Heller, Scalia says you are. But don't come here and say that your interpretation is the only one true interpretation and anyone who doesn't agree isn't as smart as you are.

That's the problem with this board. If you disagree with the pack, you're called at troll and you're ganged up on, like the OP in this thread. Do you even want discussion? If not, then join Red State or the Freepers because trust me, everything you say will be welcomed there.






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Vegas Bengal
Member since Feb 2008
23384 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

The left is comprised of simpletons however...


I rest my case.






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GoCrazyAuburn
Auburn Fan
Member since Feb 2010
12471 posts
 Online 

re: How come some constitutional rights can have such massive restrictions...


quote:

I swear this is the whole reason the founding fathers implemented an electoral college. Because they know the people of this nation are dumb and wanted to protect the nation from their stupidity and thats why the electoral college is allowed to vote differently from the people


You mean like protect us from people that think the founding fathers created the 2nd amendment to only apt to the technology of the time in which it was written?






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alexman
Member since Oct 2012
655 posts

re: How come some constitutional rights can have such massive restrictions...


quote:


It really is simple. The founders founded this country in direct response to a tyrannical government. In order to prevent a government from becoming tyrannical, the founders instituted a representative system of checks and balances, as well as guaranteed certain rights in an effort to keep the government from ever overreaching in power and becoming tyrannical again. They felt that the people must be able to form militias against such tyranny if it were to ever occur again. A militia, defined as an irregular army or an army composed of ordinary citizens, requires possession of arms.

A modern militia could easily be formed today. As others have said, it doesn't matter whether or not you think the militia would be successful. If half the country formed such a militia in response to a government being overly oppressive, I would guess it would have somewhat of an effect.

The Constitution wasn't written on a whim. It was written to prevent what they had just fought a war over from ever happening again. It would be naive to suggest that it could never happen again - and thus the Constitution is outdated. Human nature and history tells us that the slightest of power vacuums WILL eventually be occupied, which is why many of us do not regard the Constitution as some antiquated piece of paper that some old guys wrote some cool ideas on back in the day. There is a process to change the Constitution. If enough people feel it should be changed, it can be.


This is perfectly stated thank you and is why i agree with having guns at your homes and for private use but you should not be allowed to carry high powered rifles in PUBLIC. The Government isnt trying to take control today but when they do go ahead.






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Vegas Bengal
Member since Feb 2008
23384 posts

re: How come some constitutional rights can have such massive restrictions...


Dred Scott? Really? This had nothing to do with the 2nd. You're referring to dicta which was attempting to justify slavery.

In Heller, Stevens discusses 19th century jurisprudence re the 2nd:

quote:

Only one other 19th-century case in this Court, Presser v. Illinois, 116 U. S. 252 (1886) , engaged in any significant discussion of the Second Amendment . The petitioner in Presser was convicted of violating a state statute that prohibited organizations other than the Illinois National Guard from associating together as military companies or parading with arms. Presser challenged his conviction, asserting, as relevant, that the statute violated both the Second and the Fourteenth Amendment s. With respect to the Second Amendment , the Court wrote:

“We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.” Id., at 264–265.


Stevens also disagrees with Scalia's interpretation of Cruikshank:

quote:

Presser, therefore, both affirmed Cruikshank’sholding that the Second Amendment posed no obstacle to regulation by state governments, and suggested that in any event nothing in the Constitution protected the use of arms outside the context of a militia “authorized by law” and organized by the State or Federal Government.36


And Stevens goes on to write that this really wasn't even at issue before:
quote:


Thus, for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.38 Indeed, the Second Amendment was not even mentioned in either full House of Congress during the legislative proceedings that led to the passage of the 1934 Act. Yet enforcement of that law produced the judicial decision that confirmed the status of the Amendment as limited in reach to military usage. After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U. S., at 178.


Then there is the unanimous decision US v. Miller 1939 which clearly discusses what the clause and what was meant by the founders, which is of course completely opposite of what you're arguing now:

quote:

The Constitution, as originally adopted, granted to the Congress power --

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the 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.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out "that king Alfred first settled a national militia in this kingdom," and traces the subsequent development and use of such forces.

Adam Smith's Wealth of Nations, Book V, Ch. 1, contains an extended account of the Militia. It is there said: "Men of republican principles have been jealous of a standing army as dangerous to liberty."

In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character, and in this distinction seems to consist the essential difference between those two different species of military force.

"The American Colonies In The 17th Century," Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England --

In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to [p180] cooperate in the work of defence.

The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.

A year later [1632] it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts].

Also,

Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a "good fixed musket," not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers.





This post was edited on 1/16 at 11:37 am


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Taxing Authority
LSU Fan
Houston
Member since Feb 2010
21165 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

Are you in a militia? Nope






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Taxing Authority
LSU Fan
Houston
Member since Feb 2010
21165 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

The Supreme court ruled that corporations should have the rights of an individual.






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MFn GIMP
LSU Fan
Owensboro, Kentucky
Member since Feb 2011
8301 posts

re: How come some constitutional rights can have such massive restrictions...


quote:

Dred Scott? Really? This had nothing to do with the 2nd. You're referring to dicta which was attempting to justify slavery.


While it wasn't a second amendment case one of the reasons for ruling the way they did was because to do otherwise "would give to persons of the negro race, who were recognised as citizens in any one State of the Union the right .....to keep and carry arms wherever they went"

quote:

These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

If we go off of the US v Miller decision (from arguably the most activist court in our history) then Congress can not infringe upon the rights of any able-bodied male from owning firearms "of the kind in commn use at the time." So please tell me how Congress can ban "automatic weapons" when those are the firearms in common use by militaries around the world.

eta: and since you wanted to bring up Heller as the first court decision to say that the second amendment applied to an indivudal right and not a militia right here are some quotes from that decison:
quote:

Syllabus (e)Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47

(f)None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.....

Majority Opinion
Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The CommonplaceSecond Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998)....

But apart from thatclarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).3 “‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedyoften extends beyond the particular act or mischief which first suggested the necessity of the law.’” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802))...


footnote3As Sutherland explains, the key 18th-century English case on theeffect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep. 404 (1716), stated that “the preamble could not be used to restrict theeffect of the words of the purview.” J. Sutherland, Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was modified in England in an 1826 case to give more importance to the preamble, but in America “the settled principle of law is that thepreamble cannot control the enacting part of the statute in cases wherethe enacting part is expressed in clear, unambiguous terms.” Ibid.....


Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modernforms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding....

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that“bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer tothe carrying of weapons outside of an organized militia. The most prominent examples are those most relevant tothe Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “beararms in defense of themselves and the state” or “bear arms in defense of himself and the state.”8 It is clear from those formulations that “bear arms” did not refer only to carry ing a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the naturalright of defense “of one’s person or house”—what he calledthe law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence guaranteed by the [Ohio] constitution”);see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.9 These provisionsdemonstrate—again, in the most analogous linguisticcontext—that “bear arms” was not limited to the carryingof arms in a militia.


Furthermore, Steven's opinion on Heller holds no legal weight. That would be like me citing Scalia's opinion on [i]National Federation of Independent Business v. Sebelius



This post was edited on 1/16 at 12:01 pm


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