RE: D.C.'s Gun Ban Gets Day in Court (Full Version)

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mapachito13 -> RE: D.C.'s Gun Ban Gets Day in Court (3/25/2008 1:44:56 PM)

quote:

ORIGINAL: SteveSund

quote:

ORIGINAL: mapachito13

Has there been any study to directly link increased gun ownership to decreased crime? Or is it because all inner cities due to the socio-economic status of the residents are more susceptible to criminal activity?

If there has been a study, I'd appreciate the link!



John Lott has done several studies that link 'more guns to less crime'. Here is a link to his site where you can view the raw data. It is by no means conclusive, but he offers some compelling data.


Thank you for that quick response to my question!



1dblthnk02 -> RE: D.C.'s Gun Ban Gets Day in Court (3/25/2008 8:45:33 PM)

quote:

ORIGINAL: SteveSund
The Supreme Court would probably not agree with you.

They have and do, at least so far.

quote:

Perpich v. Department of Defense (496 U.S. 334 (1990)

. . . was a ruling based on Article 1, sect. 8 of the main body of the Constitution, not the 2nd Amendment.

quote:

Duncan v. Louisiana 391 U.S. 145 (1968)

. . . was a ruling based on the 14th and 4th Amendments, not the 2nd.

As for the quotes, I'll pass on that. I try not to make my point by using the same tactics that I criticize.



1dblthnk02 -> RE: D.C.'s Gun Ban Gets Day in Court (3/25/2008 9:03:27 PM)

quote:

ORIGINAL: Witheringfire
The Bill of Rights does not grant the right

I never said that it did. To the contrary, I said that it does not guarantee nor prohibit private gun onwership. It neither grants nor repeals an individual right; it is a limit on Congress.

quote:

it recognizes the the right as a logical extension of the inherent right to self defense, and as a means to secure the basic rights listed in the first amendment. It prohibits government infringement of the exercise of that right.

You're right about what it prohibits, but you are stretching about what it recognizes. Private arms were simply a fact of life, not a sacred trust; so was slavery for that matter.

quote:

That might make sense, except for the fact that the amendments in Bill of Rights do not speak to states rights per se, but to individual rights and their free exercise.

Wrong. United States v. Cruikshank (1875) made the exact opposite observation in its ruling which has not been countered or reversed. This could change, but so far it has not.

quote:

The term militia was commonly used at that time to refer to citizens of appropriate age, ability, etc. who were capable of organizing themselves and operating in a military capacity; i.e. the arms bearing populace.

No, not "capable of organizing themselves," but rather properly trained and enlisted in a well organized state's force.

quote:

The additional writings of the founders support the conclusion that the 2nd amendment was written to acknowledge an individual right

That is arguable. But it doesn't matter anyway, because the job of intrepeting the Constitution rests on the Supreme Court, not the founding fathers.

quote:

It also can be argued that the 2nd amendment acknowledges the right of citizens to organize and train on thier own, apart from government intervention

It can be argued, but all that matters in the long run is how it is interpreted by the Supreme Court. Their rulings have thus far run contrary to what you are saying.

quote:

If the D.C. gun ban gets a proper review, it must be recinded to fall in line with the 2nd amendment.

Perhaps. But in the long run, they will have to show how said "ban" violates the viability of the 2nd amendment as far as states' militias are concerned.



SteveSund -> RE: D.C.'s Gun Ban Gets Day in Court (3/25/2008 9:55:41 PM)

quote:

ORIGINAL: 1dblthnk02



quote:

Perpich v. Department of Defense (496 U.S. 334 (1990)

. . . was a ruling based on Article 1, sect. 8 of the main body of the Constitution, not the 2nd Amendment.



That was the whole point. The Supreme Court had a case that discussed militias, the National Guard and the portions of the Constitution that dealt with the relationship between the States and the Federal gov't in regards to the "militia." If the 2nd meant as you suspected, then it surely would have been mentioned. Do you have any cases that back up your claims?



SteveSund -> RE: D.C.'s Gun Ban Gets Day in Court (3/25/2008 10:02:37 PM)

quote:

ORIGINAL: 1dblthnk02


quote:

Duncan v. Louisiana 391 U.S. 145 (1968)

. . . was a ruling based on the 14th and 4th Amendments, not the 2nd.

As for the quotes, I'll pass on that. I try not to make my point by using the same tactics that I criticize.


That case was not about the 4th Amendment at all. It dealt with the 6th Amendment right to a jury trial. I understand it wasn't about the 2nd, but seems to indicate that the majority in this case believed the right to bear arms is a personal right.

I am not a huge fan of quote wars, but if you are going to make a claim about the Supreme Court and case law, quotes are more persuasive than a claim or opinion.



1dblthnk02 -> RE: D.C.'s Gun Ban Gets Day in Court (3/26/2008 4:57:20 PM)

quote:

ORIGINAL: SteveSund
The Supreme Court had a case that discussed militias, the National Guard and the portions of the Constitution that dealt with the relationship between the States and the Federal gov't in regards to the "militia." If the 2nd meant as you suspected, then it surely would have been mentioned.

The plaintiff did not invoke the 2nd amendment; why should anyone else?
The issue was not one concerning states’ rights, but rather one of proper implementation of the Constitution’s militia clause.
quote:

Do you have any cases that back up your claims?

I can back up anything that I claim, but you are going to have to be more specific. Which claims of mine are you asking about?

quote:

That case was not about the 4th Amendment at all.

That was a typo on my part. I had just typed “4” in the 14th amendment and inadvertently repeated it. Sometimes I get in a hurry.

quote:

I understand it wasn't about the 2nd

Then why bring it up?

quote:

but seems to indicate that the majority in this case believed the right to bear arms is a personal right

I fail to see what personal gun rights had to do with Duncan v. Louisiana

quote:

I am not a huge fan of quote wars, but if you are going to make a claim about the Supreme Court and case law, quotes are more persuasive than a claim or opinion.

I don’t mind quoting the Supreme Court on this issue. What I want to avoid is an endless barrage of citations reflecting the personal thoughts and opinions of the Founders.
That being said, the 2nd amendment is a limit on Congress in defense of states’ rights to a militia in order to thwart standing armies. It has been referred to as such in United States v. Miller, 307 U.S. 174 (1939):
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 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.

Also:
quote:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Here we see that concerns over personal gun rights are subordinate to the “preservation or efficiency of a well regulated militia.” The phrase “well regulated militia” is straight out of the 2nd amendment.

There has always been gun control. States are completely free to control the arms of the citizenry; there is nothing in the 2nd amendment to hinder them, nor Congress, as long as state’s militias are not affected in any way. In my opinion, from a historical standpoint, gun control is fine as long as it does unilaterally disarm all citizens of all arms in the future.



earthless -> RE: D.C.'s Gun Ban Gets Day in Court (3/26/2008 7:26:18 PM)

quote:

ORIGINAL: mapachito13

quote:

ORIGINAL: earthless

Wolf,

Sorry for the confusion.. I was not referring to anyone on this board with my remarks. I was speaking about the legislators, mayors, politicians, etc.. that love to push these kind of laws and reforms around.

As for data to back up my claim?

It's two fold:

1) I am a cop in the second largest city in the U.S. and I live in the inner-city. Was born and raised in the inner-city.

2) I believe the website for a quick visual glance that shows the cities with the strictest gun control laws having the most violent armed crimes can be found at http://www.gunmap.org/


Wow! You are the first peace officer that I have found who works and lives in the inner city that thinks everyone should have guns! Most police I knew from the cheif on down were pretty much against having guns in general circulation among the populace.

But I'm game! Let's rescind all gun control in the inner city and I'll pray doubly hard for the officers when those legal guns hit the streets! But then again crime will go down and we won't need as many police in the inner city, freeing up much needed funds for education! [;)]


Ha ha! And no to your last comment. At least in this large city - the amount of $$ the education system already gets is MORE THAN ENOUGH to pay for kids to be limo'ed back and forth to class. The problem is in the corruption and waste, the mishandling of the monies already received.

They definitely do not need any more of our money to fix a problem that all the money in the world will not fix.

And this is coming from someone that is a product of the second largest public school system in America - from K-12.



mapachito13 -> RE: D.C.'s Gun Ban Gets Day in Court (3/27/2008 1:57:50 PM)

quote:

ORIGINAL: earthless

Ha ha! And no to your last comment. At least in this large city - the amount of $$ the education system already gets is MORE THAN ENOUGH to pay for kids to be limo'ed back and forth to class. The problem is in the corruption and waste, the mishandling of the monies already received.

They definitely do not need any more of our money to fix a problem that all the money in the world will not fix.

And this is coming from someone that is a product of the second largest public school system in America - from K-12.


I agree that there is waste in the system. We'll start with the people drawing outrageous salaries that sit on our school boards. I've attended enough school board meetings to know those people are a waste of taxpayer funds. They are the ones with the political agendas, usually not the principals or teachers.

But also the textbook companies charge too much for each textbook. (One school - 2500 students - 5 textbooks at $100.00 each - 1.25 million dollars) Trying to update the schools with technology is very expensive. Office supplies are expensive. Some schools have to spend a fortune on security. Insurance to cover any "accidents" on campus. Etc. etc.

It's no wonder my kids aren't seeing those limos at the front door.



SteveSund -> RE: D.C.'s Gun Ban Gets Day in Court (3/27/2008 7:40:09 PM)

quote:

ORIGINAL: 1dblthnk02
The plaintiff did not invoke the 2nd amendment; why should anyone else?
The issue was not one concerning states’ rights, but rather one of proper implementation of the Constitution’s militia clause.


The case dealt with militias. The Court was free to bring up an relevent part of the Constitution that concerned militias

quote:

ORIGINAL: 1dblthnk02
I can back up anything that I claim, but you are going to have to be more specific. Which claims of mine are you asking about?


This claim:
quote:

It is prima facia a guarantee to states' rights for a state's militia.


quote:


I fail to see what personal gun rights had to do with Duncan v. Louisiana


The Supreme Court listed "the right to keep and bear arms" as one of "the personal rights guarantied and secured by the first eight Amendments to the Constitution." This was part of a discussion on the ratification process of the 14th Amendment.

quote:


I don’t mind quoting the Supreme Court on this issue. What I want to avoid is an endless barrage of citations reflecting the personal thoughts and opinions of the Founders.


Sometimes they can be helpful. According to the Supreme Court, "when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone." Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 584 (1983).

quote:


That being said, the 2nd amendment is a limit on Congress in defense of states’ rights to a militia in order to thwart standing armies. It has been referred to as such in United States v. Miller, 307 U.S. 174 (1939):
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 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.

Also:
quote:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Here we see that concerns over personal gun rights are subordinate to the “preservation or efficiency of a well regulated militia.” The phrase “well regulated militia” is straight out of the 2nd amendment.


The Miller Court never suggested that the possessor must be a member of a militia or the National Guard, but whether the arm has a "militia use." The arm in question, in the opinion of the court, had no military or militia use. Taken on it's face, citizens should be able to have the same arms as the military. Miller also references a Tennessee case which says the same thing and that citizen members of a militia were expected to provide their own arms and their own training.


quote:


There has always been gun control. States are completely free to control the arms of the citizenry; there is nothing in the 2nd amendment to hinder them, nor Congress, as long as state’s militias are not affected in any way. In my opinion, from a historical standpoint, gun control is fine as long as it does unilaterally disarm all citizens of all arms in the future.


Most of the gun control is a relatively thing. Prior to 1934, a 10 year old could order a belt fed machine gun through the mail. Up until 1968, there were little if any prohibitions on children purchasing arms. I agree that the 14th Amendment has never been used to apply the 2nd to the states. IMO, this is incorrect, but I am not on the Supreme Court.

What are these state militias you refer to? The Perpich case I referenced (that never mentioned the 2nd Amendment) has said that state militias (the Reserves and the National Guard) are under the control of the Federal gov't whenever the federal gov't wants to assert control. They are distinguished from the unorganized militias, which consisted of every "able bodied male citizen."



EverLearning -> RE: D.C.'s Gun Ban Gets Day in Court (3/27/2008 9:42:37 PM)

quote:

ORIGINAL: 1dblthnk02
What I want to avoid is an endless barrage of citations reflecting the personal thoughts and opinions of the Founders.



While the supreme court has the burden of interpretting the constitution, for them to do so outside of the original intent as shown in the personal opinions of the founding fathers is necessarily against the goal of the constitution. Anyone who says that the opinions of those who wrote the constitution are not important when interpreting the constitution are either extremely naive or more concerned about pushing their own particular agenda than upholding the constitution.



mapachito13 -> RE: D.C.'s Gun Ban Gets Day in Court (3/28/2008 10:46:18 AM)

quote:

ORIGINAL: EverLearning

quote:

ORIGINAL: 1dblthnk02
What I want to avoid is an endless barrage of citations reflecting the personal thoughts and opinions of the Founders.



While the supreme court has the burden of interpretting the constitution, for them to do so outside of the original intent as shown in the personal opinions of the founding fathers is necessarily against the goal of the constitution. Anyone who says that the opinions of those who wrote the constitution are not important when interpreting the constitution are either extremely naive or more concerned about pushing their own particular agenda than upholding the constitution.


The reason that their personal thoughts are nice to read but not relevant is that their verbage did not get into the Constitution, a document that is supposed to stand by itself. The rulings of the Supreme Court have more weight in interpreting the Supreme law of the land.



rnershigh -> RE: D.C.'s Gun Ban Gets Day in Court (3/28/2008 6:09:45 PM)

quote:

ORIGINAL: mapachito13

quote:

ORIGINAL: EverLearning

quote:

ORIGINAL: 1dblthnk02
What I want to avoid is an endless barrage of citations reflecting the personal thoughts and opinions of the Founders.



While the supreme court has the burden of interpretting the constitution, for them to do so outside of the original intent as shown in the personal opinions of the founding fathers is necessarily against the goal of the constitution. Anyone who says that the opinions of those who wrote the constitution are not important when interpreting the constitution are either extremely naive or more concerned about pushing their own particular agenda than upholding the constitution.


The reason that their personal thoughts are nice to read but not relevant is that their verbage did not get into the Constitution, a document that is supposed to stand by itself. The rulings of the Supreme Court have more weight in interpreting the Supreme law of the land.


mapachito,

It's obvious why the founders included the 2nd amendment as a part of the bill of rights. All their words on the subject clearly shows why they felt they needed to include this amendment in the document. EverLearning is exactly right when he states: "Anyone who says that the opinions of those who wrote the constitution are not important when interpreting the constitution are either extremely naive or more concerned about pushing their own particular agenda than upholding the constitution."



SteveSund -> RE: D.C.'s Gun Ban Gets Day in Court (3/28/2008 7:52:44 PM)

quote:

ORIGINAL: mapachito13
The reason that their personal thoughts are nice to read but not relevant is that their verbage did not get into the Constitution, a document that is supposed to stand by itself. The rulings of the Supreme Court have more weight in interpreting the Supreme law of the land.


I think this bears repeating:

quote:

According to the Supreme Court, "when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone." Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 584 (1983).


The intent and opinions of the framers are very relevant.



1dblthnk02 -> RE: D.C.'s Gun Ban Gets Day in Court (3/28/2008 8:26:23 PM)

quote:

ORIGINAL: SteveSund
The case dealt with militias. The Court was free to bring up an relevent part of the Constitution that concerned militias

But they would need a reason. That reason would be if Congress was attempting to intervene over states’ rights to a well regulated militia.
This was not the case here.

quote:

The Supreme Court listed "the right to keep and bear arms" as one of "the personal rights guarantied and secured by the first eight Amendments to the Constitution." This was part of a discussion on the ratification process of the 14th Amendment.

But the 2nd amendment’s right to keep and bear arms as a personal right must be interpreted in light of the states’ rights to a well regulated militia. This is precisely what was stated in United States v. Miller:
“With obvious purpose to assure the continuation and render possible the effectiveness of such forces (state militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

quote:

Sometimes they can be helpful. According to the Supreme Court, "when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone." Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 584 (1983).

The Supreme Court’s justices may indulge themselves in citing the personal notes of the Framers all that they want. I was simply referring to debating the 2nd amendment on this forum. I simply stand by what the Supreme Court has decided thus far; there is no need for me to waste time in a cut-and-paste war of quotes of the Founders. If the SCotUS does, then I will cite their specific use of quotes.

quote:

The Miller Court never suggested that the possessor must be a member of a militia or the National Guard, but whether the arm has a "militia use."

I was not arguing this point. What I cited was their explicit interpretation of the right to personal arms in subordinate light of states’ militias.

quote:

The arm in question, in the opinion of the court, had no military or militia use. Taken on it's face, citizens should be able to have the same arms as the military.

I fail to see the validity of this point. States’ militias and the military are not one and the same. The federal government may recruit states’ militias for military purposes per Article 1, sect. 8 of the Constitution, but that is not the militia’s primary purpose.

quote:

Miller also references a Tennessee case which says the same thing and that citizen members of a militia were expected to provide their own arms and their own training.

. . . in keeping with US v Miller’s interpretation of the 2nd amendment as primarily addressing states’ militias.

quote:

Most of the gun control is a relatively thing. Prior to 1934, a 10 year old could order a belt fed machine gun through the mail. Up until 1968, there were little if any prohibitions on children purchasing arms.

So, what are you saying? That we should go back to this?

quote:

I agree that the 14th Amendment has never been used to apply the 2nd to the states. IMO, this is incorrect, but I am not on the Supreme Court.

Very good: you have finally addressed my point correctly.

quote:

What are these state militias you refer to? The Perpich case I referenced (that never mentioned the 2nd Amendment) has said that state militias (the Reserves and the National Guard) are under the control of the Federal gov't whenever the federal gov't wants to assert control.

Yes: per Article 1, sect. 8 of the US Constitution.

quote:

They are distinguished from the unorganized militias, which consisted of every "able bodied male citizen."

Does “unorganized” equate “well regulated?” What are you referring to here?
Article 1 sect. 8 states that Congress has the power 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.”
It seems to me that the US Constitution does not recognize an “unorganized” militia.



quote:

ORIGINAL: Everlearning
While the supreme court has the burden of interpretting the constitution, for them to do so outside of the original intent as shown in the personal opinions of the founding fathers is necessarily against the goal of the constitution.

And in which case do you feel that they did this?

quote:

Anyone who says that the opinions of those who wrote the constitution are not important when interpreting the constitution are either extremely naďve or more concerned about pushing their own particular agenda than upholding the constitution.

You are arguing against a straw man: I am not pushing an “agenda,” nor did I say that the Framers’ opinions were unimportant. What I said was that it is a waste of time on this forum to argue the 2nd amendment by getting into a cut-and-paste war of quotes from the Founders’ gallery of journals, letters, etc. We need to examine case law primarily, and look for references to the Framers’ personal opinions there within.



mapachito13 -> RE: D.C.'s Gun Ban Gets Day in Court (3/29/2008 10:03:13 AM)

quote:

ORIGINAL: SteveSund

quote:

ORIGINAL: mapachito13
The reason that their personal thoughts are nice to read but not relevant is that their verbage did not get into the Constitution, a document that is supposed to stand by itself. The rulings of the Supreme Court have more weight in interpreting the Supreme law of the land.


I think this bears repeating:

quote:

According to the Supreme Court, "when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone." Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 584 (1983).


The intent and opinions of the framers are very relevant.


I stand corrected! [:)]



Marcus. -> RE: D.C.'s Gun Ban Gets Day in Court (3/29/2008 10:26:02 AM)

A lot of ground has been covered while I was away. In this debate original intent must be understood to continue the debate. This didn't arise out of thin air but from the historical context of its time. That is why I use quotes from the Founder's so much in these type of debates. The Court will just as obviously have to go back to the historical documents and move forward. Whether they will review the applicable material from the Continental Congress or The federalist Papers is to be seen. Original intent is central to this lawsuit. The Founder's did leave us with documentary records of the debates and what they were attempting to protect and preserve. Whether a person has an inalienable right to arm itself for the purposes of self defense from his own government. They even state at one point that they were not granting rights but merely protecting previously existing ones. There is a Jefferson quote on that as well.

quote:

"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

— Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."

— Thomas Jefferson to W, Nicholas, 1803.

"The true key for the construction of everything doubtful in a law, is the intention of the law givers. This is most safely gathered from the words, but may be sought also in extraneous circumstances, provided they do not contradict the express words of the law."

— Thomas Jefferson to A. Gallatin, 1808



If there were a quote war over the individual right to keep and bear arms, the gun control crowd would be disarmed. The historical evidence is conclusive. Even some gun control advocates/scholars admit as much.

This boils down to where do governments derive their powers from? The consent of the governed or by executive fiat or court decree? IMHO governmental rights are merely an expansion of individual rights. If they infringe on the basic inalienable right of self defense then they cede the right themselves. If they censor speech then they muzzle themselves as well. People existed long before governments can to be, not the other way around.

This country was founded to shed the old forms of tyranny from the Old World. I am unwilling to give up what was struggled so hard for in order to become a vasal to the state. IMO free men are armed, slaves are disarmed.



mapachito13 -> RE: D.C.'s Gun Ban Gets Day in Court (3/29/2008 11:11:31 AM)

quote:

ORIGINAL: Marcus.

This boils down to where do governments derive their powers from? The consent of the governed or by executive fiat or court decree?



My opinion is from the people as well or "the mob" as I have heard it referred to. My wish is that the politicians start listening to their constituents and not just the rich ones that buy their influence.

If a politician changes his "view" on an issue after receiving campaign contributions it is considered "good politics". If you or I would change something where we worked for money it would be considered bribery, corruption or fraud.

And why don't we have campaign finance reform? Because those that make the laws don't like the law to cover them with regards to ethics. In politics, money IS the root of all evil.



SteveSund -> RE: D.C.'s Gun Ban Gets Day in Court (3/29/2008 4:12:19 PM)

quote:

ORIGINAL: 1dblthnk02
quote:

Most of the gun control is a relatively thing. Prior to 1934, a 10 year old could order a belt fed machine gun through the mail. Up until 1968, there were little if any prohibitions on children purchasing arms.

So, what are you saying? That we should go back to this?


I wouldn't mind, but it was mostly to refute your notion of us 'always' having gun control. Most gun control is relatively recent.

quote:

I agree that the 14th Amendment has never been used to apply the 2nd to the states. IMO, this is incorrect, but I am not on the Supreme Court.

Very good: you have finally addressed my point correctly.

quote:

What are these state militias you refer to? The Perpich case I referenced (that never mentioned the 2nd Amendment) has said that state militias (the Reserves and the National Guard) are under the control of the Federal gov't whenever the federal gov't wants to assert control.

Yes: per Article 1, sect. 8 of the US Constitution.

quote:

They are distinguished from the unorganized militias, which consisted of every "able bodied male citizen."

Does “unorganized” equate “well regulated?” What are you referring to here?
Article 1 sect. 8 states that Congress has the power 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.”
It seems to me that the US Constitution does not recognize an “unorganized” militia.



quote:

We need to examine case law primarily, and look for references to the Framers’ personal opinions there within.


Ok, then I am still waiting for your case law dealing with how the second is concerned primarily with the rights of states to have militias. The holding of Miller dealt with NFA '34 and it's prohibition on certain arms and upheld the notion that certain arms were not suited for militia duty. This is somewat ironic when you consider that the military at that time used shotguns, but this may also be the result of Miller not being present or represented at the hearing in front of the Supreme Court.

I also find it strange that you keep insisting that the "people" of the 2nd Amendment somehow means the States?!?



Marcus. -> RE: D.C.'s Gun Ban Gets Day in Court (3/29/2008 5:59:44 PM)

Go back and research what militia was for over the first hundred years in our countries history. Organized and unorganized didn't enter the debate until after the Spanish-American War with a law passed in 1903. The militia was never intended for anything beyond local defense on U.S. soil. The original definition for militia was every able bodied man between specified ages.



1dblthnk02 -> RE: D.C.'s Gun Ban Gets Day in Court (3/29/2008 6:40:44 PM)

quote:

ORIGINAL: Marcus.
Original intent is central to this lawsuit. The Founder's did leave us with documentary records of the debates and what they were attempting to protect and preserve.

True. But, per the OP, we should parry this thread away from a general barrage of pro-gun slogans and carefully mined quotes from the Founders, and steer it back to the specific issue: whether the D.C. handgun ban violates the 2nd Amendment.

quote:

Whether a person has an inalienable right to arm itself for the purposes of self defense from his own government.

The intent of the 2nd Amendment was not a license for individuals to take up arms against the federal government. Timothy McVeigh had no more of a Constitutional right to take up personal arms and open fire on a federal building than he did to blow it up.

The intent of the 2nd Amendment was to prohibit Congress from interfering with states providing for their own reserve of well regulated militias from within their general populace in order to thwart standing armies.
This practice has since been replaced by the National Guard and Army Reserve, but the 2nd Amendment remains with us as an ambiguity.

quote:

If there were a quote war over the individual right to keep and bear arms, the gun control crowd would be disarmed.

Perhaps, but a quote war is pointless. No matter how many times you fall back on the usual litany of quotes complied by your favorite gun advocacy sites, the fact remains that gun control has never been struck down in court due to the 2nd Amendment.
That is why the NRA puts its money into lobbyists rather than lawyers.
Right?

It would be much more rewarding for us to consider, per the OP, the particulars of this case that make it so interesting. For instance:
1. Washington D.C. is not a state. The 10th Amendment, which grants to states all powers not belonging to the Federal government, does not even apply to D.C.; therefore, how does the 2nd?
2. Since Washington D.C. is the seat of all U.S. military, National Guard, and armed reserves (thus nullifying the 2nd Amendment’s purpose to thwart standing armies), how does this affect D.C. citizens where individual gun rights are concerned— rights neither granted nor abridged by the U.S. Constitution?
3. Since the ultimate plenary power over Washington D.C. is the U.S. Congress, then how do we apply the 2nd Amendment which is a restriction on that same Congress?
I would much rather examine these and other fascinating particulars of this case rather than get into an emotional war of quotes that leads nowhere.
Don’t you agree?

quote:

The original definition for militia was every able bodied man between specified ages.

Not every man; originally just white land owners.



1dblthnk02 -> RE: D.C.'s Gun Ban Gets Day in Court (3/29/2008 6:56:17 PM)

quote:

ORIGINAL: SteveSund
I wouldn't mind, but it was mostly to refute your notion of us 'always' having gun control. Most gun control is relatively recent.

Maybe most, but not all. For instance, there was usually a good deal of gun control concerning Indian tribes.

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Ok, then I am still waiting for your case law dealing with how the second is concerned primarily with the rights of states to have militias.

U.S. v Miller

quote:

The holding of Miller dealt with NFA '34 and it's prohibition on certain arms and upheld the notion that certain arms were not suited for militia duty.

Once again:
“With obvious purpose to assure the continuation and render possible the effectiveness of such forces (state militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

quote:

I also find it strange that you keep insisting that the "people" of the 2nd Amendment somehow means the States?!?

No. Both "state" and "the people" are mentioned in the 2nd Amendment. U.S. v Miller states clearly that the rights of the people to bear arms must be interpreted in light of the states' rights to a well regulated militia.



SteveSund -> RE: D.C.'s Gun Ban Gets Day in Court (3/30/2008 7:55:25 AM)

quote:

ORIGINAL: 1dblthnk02

quote:

ORIGINAL: SteveSund
I wouldn't mind, but it was mostly to refute your notion of us 'always' having gun control. Most gun control is relatively recent.

Maybe most, but not all. For instance, there was usually a good deal of gun control concerning Indian tribes.


True. There were also laws forbidding slaves from owning arms, but this topic has already covered enough ground without going off into that realm.

quote:

Ok, then I am still waiting for your case law dealing with how the second is concerned primarily with the rights of states to have militias.

U.S. v Miller

quote:

The holding of Miller dealt with NFA '34 and it's prohibition on certain arms and upheld the notion that certain arms were not suited for militia duty.

Once again:
“With obvious purpose to assure the continuation and render possible the effectiveness of such forces (state militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

quote:

I also find it strange that you keep insisting that the "people" of the 2nd Amendment somehow means the States?!?

No. Both "state" and "the people" are mentioned in the 2nd Amendment. U.S. v Miller states clearly that the rights of the people to bear arms must be interpreted in light of the states' rights to a well regulated militia.


I had Tivo'd some of the oral arguments for Heller from C-Span. One of the arguments put forth by the US was that the 2nd's purpose was to protect arms ownership for militia purposes, not an individual right. For the most part, the Sup. Ct. didn't support this contention and Roberts asked the Solicitor General if the Framers had meant a state right to support a militia why didn't they say "state militia right" instead of the "people." Another Justice (Scalia, I think) said that the second part of the clause goes beyond the militia and talks about the right of the people to be armed. There seemed to be agreement as to an individual right and most of the discussion then seemed to center on whether a ban was reasonable.

quote:

It would be much more rewarding for us to consider, per the OP, the particulars of this case that make it so interesting. For instance:
1. Washington D.C. is not a state. The 10th Amendment, which grants to states all powers not belonging to the Federal government, does not even apply to D.C.; therefore, how does the 2nd?
2. Since Washington D.C. is the seat of all U.S. military, National Guard, and armed reserves (thus nullifying the 2nd Amendment’s purpose to thwart standing armies), how does this affect D.C. citizens where individual gun rights are concerned— rights neither granted nor abridged by the U.S. Constitution?
3. Since the ultimate plenary power over Washington D.C. is the U.S. Congress, then how do we apply the 2nd Amendment which is a restriction on that same Congress?
I would much rather examine these and other fascinating particulars of this case rather than get into an emotional war of quotes that leads nowhere.
Don’t you agree?


Good questions.

1. The Congressional ban from 1976 would still fall under the 2nd Amendment. This is one of my concerns. It would be easy for the Sup. Ct. to say the 2nd only applies to federal actions and not to state actions (unlike most of the other BOR's). The states would continue to be able to ban arms.

2. I am not sure what you mean when you say unable to thwart standing armies. Many of the founders were still alive when we had standing armies. The purpose seemed more to prevent tyranny.

3. I think this is the question that the Heller court is going to try an answer. If they agree it is an individual right and that the 2nd is a limit on Congressional power to 'infringe' upon that right, they will have to decide what it means to "keep and bear arms" and what would be reasonable. This is similar to 4th Amendment case law in reagrds to search & seizure. There are plenty of exceptions to needing a warrant and the question has become are these exceptions reasonable.

Do you think DC's laws are reasonable? What standard of scrutiny should the Supreme Court use in looking at 2nd Amendment laws?



1dblthnk02 -> RE: D.C.'s Gun Ban Gets Day in Court (3/30/2008 3:24:29 PM)

quote:

One of the arguments put forth by the US was that the 2nd's purpose was to protect arms ownership for militia purposes, not an individual right.

I do not agree with this interpretation. The problem with the usual arguments about what the 2nd Amendment means is that they tend to fall toward one extreme or the other: “It is all about states’ rights/ it is all about individual rights.”
The 2nd Amendment is a limit on Congress from infringing on a right of both states and individuals, that right being the security of a free state without standing armies.
quote:

There seemed to be agreement as to an individual right

Indeed there is. The 2nd Amendment refers to it, and history shows that it was held as an implicit right in our country. The 2nd Amendment does not grant this right, but it does acknowledge it as something to be preserved with a specific justification in mind.
quote:

most of the discussion then seemed to center on whether a ban was reasonable

This is the issue. Just because the Constitution limits Congress’ ability to prohibit guns, does that mean that states cannot prohibit them? Think about the 21st Amendment: Congress can no longer enforce Prohibition, yet dry jurisdictions remain. Do dry jurisdictions deprive the people of their Constitutional rights? No. Prohibition is now a regional issue rather than a federal one. Do you see the metaphor as it relates to gun control?
The catch here is that the District of Columbia is not a state; therefore, it does not enjoy a state’s standing in terms of certain, specific Constitutional rights. What gun rights do U.S. citizens have in this non-state?
quote:

It would be easy for the Sup. Ct. to say the 2nd only applies to federal actions and not to state actions (unlike most of the other BOR's). The states would continue to be able to ban arms.

As I see it, this is where we are at right now. All states have some form of gun control/gun ban. These do not violate the 2nd Amendment.
quote:

I am not sure what you mean when you say unable to thwart standing armies.

I did not say “unable;” I said that the 2nd Amendment’s initial purpose to thwart standing armies has basically been nullified since 1903.
quote:

Many of the founders were still alive when we had standing armies. The purpose seemed more to prevent tyranny.

Again, from U.S. v Miller:
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies”
quote:

If they agree it is an individual right and that the 2nd is a limit on Congressional power to 'infringe' upon that right, they will have to decide what it means to "keep and bear arms" and what would be reasonable.

It is a bit more complicated than that. Congress has plenary power, i.e. complete jurisdiction, over Washington D.C. How can we apply to a non-state an amendment that secures states’ rights, and limits Congress in a situation where they already have plenary power?
In my opinion, the 2nd Amendment should not be applied to this situation. Where the D.C. handgun ban is concerned, gun rights should have been argued on a different basis other than the 2nd Amendment.
quote:

Do you think DC's laws are reasonable?

That depends on how one defines “reasonable.” I would rather say that the ban is justifiable, but regrettable.
quote:

What standard of scrutiny should the Supreme Court use in looking at 2nd Amendment laws?

I think I already covered this for the most part. I just don’t see how the Court is able to apply the 2nd Amendment in D.C., but they have before. I think that is poor judgment.



SteveSund -> RE: D.C.'s Gun Ban Gets Day in Court (4/3/2008 7:54:16 AM)

From every indication it seems that the Supreme Court is going with the individual rights approach. Whike there are some on the court that believe there is support for a militia in the 2nd, they also believe the individual right to bear arms is a separate clause. Miller has to be one of the most poorly written and decided opinions of the 20th century. Besides being confusing and unwilling to address certain important issue, Miller wasn't even represented by counsel at the Sup. Ct. hearing. In fact, his lawyer contacted the court and said he couldn't afford to even file a brief and said he was fine with whatever the gov't.'s position was (this would be malpractice today).

quote:

That depends on how one defines “reasonable.” I would rather say that the ban is justifiable, but regrettable.


The ban was passed in 1976. Besides banning handguns, it also says that any long guns must be unloaded and disassembled. This makes it impossible to have a gun for self-defense outside the home. Unless the 'bad guy' calls ahead and gives you notice, it also makes self-defense inside the home very difficult.

The average crime rate is higher after the ban then it was before the ban and DC is one of the most unsafe cities in the country. I fail to see how the ban is reasonable or justified.



Marcus. -> RE: D.C.'s Gun Ban Gets Day in Court (4/3/2008 11:32:34 AM)

I see the Second Amendment as a guarantee for both individual rights and state rights. But in this day an age, we need to ask a basic question. Do we really have a federal form of government anymore or a national government?

I'm afraid to say it looks far more like a national government. A federal system falls apart if the states pull out. But they can't. When there is a conflict between federal and state law, the state's will always loose.

But back to this case. Since the district isn't a state, does that mean the people living there don't have full Constitutional rights? That they willing give them up to live there?



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