@Setanta,
Setanta wrote:
Most serious scholars, who are not polemically invested in the gun culture,
see the second amendment as a guarantee of participation in the militia.
That assertion is very
false; "most" means more than 1/2,
whereas almost
1OO% of the legal intelligentsia (liberals, mostly)
believe in what thay call "the Standard Model" of the 2nd Amendment,
which recognizes it as protecting
Individual rights.
So, according to Mr. Setanta,
if my application for membership in a militia, is rejected,
then
my Constitutional Rights have been violated?? Really???????
He thinks that the Founders enacted the 2nd Amendment
to
make sure that
NO citizen can be rejected from militia membership.
Setanta wrote:In his commentaries on the common law,
Blackstone refers to people keeping and bearing arms
according to their degree.
That is in the statute: the English Bill of Rights of 1689,
enacted after the success of the Glorious Revolution,
after King James II (Stuart) fled to France.
The Catholic King (Scotch) had disarmed the Protestants.
This was enacted to defend their right to weapons.
Setanta wrote:He goes on to say that the game laws effectively disarm a large portion of the population.
St. George Tucker, an American legal scholar, wrote his own commentaries on the constitution, published in 1803,
in which he specifically points out Blackstone's comment on the right to bear arms.
Most scholars see Tucker's comments as construing the second amendment to refer to a collective, civic right,
and not an individual right.
That is another false statement.
I
deny that "most" see that.
Of the 2nd Amendment, Tucker wrote:
" This may be considered as the true palladium of liberty. . . .
The right of self defence is the first law of nature:
in most governments it has been the study of rulers
to confine this right within the narrowest limits possible.
Wherever standing armies are kept up, and
the right of the people to keep
and bear arms is, under any colour or pretext whatsoever, prohibited,
liberty, if not already annihilated, is on the brink of destruction. "
(St. George Tucker, View of the Constitution of the United States,
in 1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES:
WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS,
OF THE FEDERAL GOVERNMENT OF THE UNITED STATES;
AND OF THE COMMONWEALTH OF VIRGINIA ed.)
[All emfasis has been added by David.]
Note that Tucker refers to the
liberty of the people,
not
the liberty of the militia.
Setanta wrote:It ought to be needless to say that the gun lobby fulminates against that view, and either claim that Tucker
has misconstrued the meaning of the amendment, or that scholars have misconstrued Tucker.
Nonsense; I have no reason to fulminate.
I am simply aware that
u don't understand Tucker's filosofy.
Tucker is on
MY side not your side. U tried to steal him.
He is a
freedom-lover.
We won in the US Supreme Court, despite your errors of comprehension
;
no problem, no fulmination. I am
HAPPY.
Winning can
DO that.
Setanta wrote:Historically, and even before the First Congress sent its proposed amendments to the states, the militia has shown itself not to be an effective agent of military security. There are almost no examples of the militia performing well away from the immediately vicinity of their homes. The only example of which i can think is the final battle of the Saratoga campaign, when New England militia came in large numbers because of their respect for Benedict Arnold (now cast as the arch-villian of our revolution). In effect, they were fighting for their homes, because after Washington drove the English from Boston, the New Englanders were rarely threatened other than by troops landed briefly from ships--with the exception of troops sent out by the English to raid what is now Vermont as a part of the Saratoga campaign. Thereafter, the New Englanders showed up to fight, and they particularly showed up to fight for Arnold.
Otherwise, the one thing one could count on was the militia running away, or refusing to fight. Washington was contemptuous of them, and over the decades, other military commanders learned not to rely on them. They even proved unreliable when fighting for their homes, as was the case at Bladensburg in Maryland, in 1814, where six or seven thousand militia ran away from fewer than 2000 redcoats, setting the stage for the burning of the city of Washington.
So, no matter what sort of fairy tales the gun nuts tell,
the second amendment has never functioned to provide the United
States with military security.
The Bill of Rights remains intact,
REGARDLESS of their military prowess.
The freedom-lovers still win.
The Repressionists still lose.
Setanta wrote:It is completely accurate that many gun nuts think it allows them
to keep and bear any goddamned gun i can afford.
What guns
U can afford has no effect on the Bill of Rights.
Setanta wrote:There is a culture, too, of guns being sold illegally
at gun shows, or cassually and illegally out the back of somebody's
truck in a parking lot (i've personally seen this on more than one occasion).
That 's a perfectly proper & honorable thing to do,
bearing in mind that government has
no jurisdiction to interfere
with our Constitutional rights, the same as if were buying Bibles or our favorite newspapers.
Setanta wrote:In two Supreme Court decisions in the latter part of the 19th century, the Court stated that the second amendment binds the Federal government, but not the states. That would seem to authorize gun control measures by the states. In 1939, in The United States versus Miller the Court observed that they had no reason to believe that a shotgun having a barrel of less than 18" length was a weapon useful for the militia. That decision referred to the National Firearms Act, which the Court upheld. So, as of 1939, the Court also recognized a right of the Federal goverment to control what types of weapons one might keep and bear. Inferentially, at least, the Court's decision in Miller refers to the constitutional authority of Congress to provide for arming the militia (Article One, Section Eight).
I can challenge u on
MILLER, but its pointless. We won again in
HELLER.
In that case, the USSC explained the correct freedom-loving meaning of
MILLER.
Setanta wrote:The gun nut lobby often dismiss the first clause of the second amendment ("A well regulated militia being necessary to the security of a free state") because they wish to dismiss any notion that firearms can be regulated. I've had more tha one person tell me explicitly that that clause is meaningless.
Its not "meaningless." If we wanted to organize an A2K Militia,
our right to do so is thereby protected.
I 'm too lazy to join.
Setanta wrote:No direct tests of the right of the states to regulate firearms has reached the Supremes since Miller in 1939. In 2008, in the case of The District of Columbia versus Heller, the Court held that the second amendment protects the right of individuals to keep firearms for traditional purposes (such as self-defense in the home) in Federal enclaves. The gun nuts have been hysterically ecstatic, alleging that Heller strikes down all gun control legislation in a single broad stroke. This is by no means certain. Just as they ignore the first clause of the second amendment, they ignore the qualifier of "in a Federal enclave" in Heller. The District of Columbia is just such a special Federal enclave, and its government by the Congress is provided for in the Constitution. Whether or not this will lead to gun control laws being struck down remains to be seen, as it has not be used as a precedent in any cases in the Federal system since it was decided.
U appear to languish in ignorance
of the US Supreme Court's decision in
McDONALD v. CHICAGO
561 U.S. 3025 (2010). This struck down Chicago's
anti-gun law
and it successfully incorporated the 2nd Amendment
curtailing the powers of the States,
in addition to the federal government.
Personal freedom won again. That fills my heart with
JOY. Freedom does that.
Setanta wrote:Almost none of that applies to the Colorado situation, though. As i've already mentioned, in Cruikshank and Presser in the 19th century, the Court held that the second amendment binds the Federal government but not the states.
No decision since then has contradicted those decisions. [Tell that to the Mayor of Chicago.]
McDONALD v. CHICAGO 561 U.S. 3025 (2010)
Mr. Setanta, u speak as if u
KNEW
what u were talking about, but that is false.
I guess u get what u pay for;
or, at least, u
DON'T get what u
don't pay for, so that 's the value of what u give us.
Setanta wrote:The gun nuts are crowing that Heller "incorporates" the second amendment,
meaning that it now applies to all the states as well as the Federal government.
McDONALD (supra) does that, and it has for the last 2 years.
R u gonna
apologize to us ??
Setanta wrote:There is a problem with that interpretation, though, because the first clause of the amendment speaks of a well-regulated miliita, and the language about a Federal enclave in Heller make the proposition dubious.
But even under previous precedent, Colorado would still have the right to authorize their firearms legislation. While it is certainly true that nationally, the NRA is a lobbying body weilding far more power than its numbers would suggest, that is not the case in a state such as Colorado, where the power of the NRA is very real. If as is explicitly stated in Cruikshank and Presser, the states are not bound by the second amendment, then that power of the NRA in Colorado is above challenge.
The claim of incorporation in Heller ought to be beneath the notice of any intelligent scholar.
I can see a good argument that
US v. VERDUGO 11O S.Ct. 1O56
incorporated it back in 1990.
In
HELLER, the USSC approved and adopted the reasoning of
VERDUGO.
Setanta wrote:However, how the Court rules in any case in which a defendant cites Heller will ultimately determine wherher or not that case incorporates the second amendment (i.e., binds the states). It still does not address the issue of "well-regulated." The Court as currently composed is often seen as friendly to the pro-gun lobby.
