DNC acknowledges Americans' Second Amendment right to own firearms

[jody]

DNC Platform Committee Report, see http://a9.g.akamai.net/7/9/8082/v001/www.democrats.org/pdfs/2004platform.pdf
QUOTE
Crime and violence. While terrorism poses an especially menacing threat to our nation, a strong America must remain vigilant against the scourge of homegrown crime as well. We are proud that Democrats led the fight to put more than 100,000 cops on the beat through the COPS program, and we will continue our steadfast support for COPS and community policing. To keep our streets safe for our families, we support tough punishment of violent crime and smart efforts to reintegrate former prisoners into our communities as productive citizens. We will crack down on the gang violence and drug crime that devastate so many communities, and we will increase drug treatment, including mandatory drug courts and mandatory drug testing for parolees and probationers, so fewer crimes are committed in the first place. We support the rights of victims to be respected, to be heard, and to be compensated. We will help break the cycle of domestic violence by punishing offenders and standing with victims. We will protect Americans' Second Amendment right to own firearms, and we will keep guns out of the hands of criminals and terrorists by fighting gun crime, reauthorizing the assault weapons ban, and closing the gun show loophole, as President Bush proposed and failed to do.
UNQUOTE

[CO Liberal]

1. Emphasizing a Few Different Clauses....

We will protect Americans' Second Amendment right to own firearms, and we will keep guns out of the hands of criminals and terrorists by fighting gun crime, reauthorizing the assault weapons ban, and closing the gun show loophole, as President Bush proposed and failed to do.

[Zynx]

5. As long as its just reauthorizing

And closing the loophole(former is a useless measure and everyone knows it, the latter is actually sensible), this is still extremely pro-gun. The Democratic party adopting the "right to own" position is huge and means that the anti-gunners are gone.

This is great news. This issue has been a loser for a long, long time and its time to tell the gun control groups to piss off.

[ROC]

16. I don't think the anti-gunners are gone...

they are just silent for now

[CO Liberal]

29. We're Not Gonna "Piss Off"

But we ARE gonna piss off a lot of pro-gunners......

[MrBenchley]

7. Gee, so do I...

We have a right to collectively own firearms for our well reguylated state militias...

Now, who thinks this is going to keep the gun lobby from lying their asses off? Me neither.

[MercutioATC]

2. "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."

That's the actual text.

Where does that apply to private gun ownership in the absence of a "well regulated militia"?

(I'm not anti-gun and I support private gun ownership, but the second amandment to the Constitution doesn't have a bearing on the current issue)

[Zynx]

8. Hard to have a militia without private arms.

The whole point of a militia like what the Founding Fathers wanted (and understood a milita to be) is to have a large body of armed individuals that are not under government control so that you can get rid of the government if it becomes tyrannical.

The National Guard as currently exists most certainly does *not* satisfy that intent. It's part of and loyal to the regular army command structure.

There wouldn't be any discussion on this if the Founding Fathers used words such as "therefore" instead of entirely random commas.

[MercutioATC]

13. Yes, but we don't have a militia...unless you want to count the McVeighs

of the U.S.

Actually, those "militia groups" really represent what the founding fathers were trying to encourage - independent groups organized to check the power of a non-representative government when necessary.

Not an encouraging thought, is it?

[Zynx]

20. Actually, that is pretty accurate

Considering that the Bill of Rights was meant to assuage fears over the new Federal Government, the 2nd Ammendment is basically meant to be a doomsday device, a means for implementing what Jefferson felt was periodic, healthy, revolution of the people.

By that understanding, you would have a whole bunch of local or state-level groups unconnected to the federal government with the right to better weaponry than what the insurgents in Iraq are using-because what they have isn't quite enough to beat the army.

The Founders would probably be perfectly happy with a modern militia incorperating standard-issue military rifles w/ grenade launchers, belt-fed HMG's and SAW's, Stinger-type AA missiles and Javalin/Kornet class AT missiles. All outside of Federal control. Bear in mind that there was *no* police force in early America, so the concept of drug dealers ventilating police officers wouldn't have occured to the founders at all.

This, I think, is the real reason why even conservative SCOTUS terms want nothing to do with the 2nd Ammendment. The only realistic "original intent" interpretation authorizes rediculiously heavy hardware by our modern sensibilities.

Conversely, since this was meant to refer to the Federal Government, the individual states would probably have been expected to be able to "regulate" the militia as much as they wanted, such as requiring that all weapons heavier than a rifle be kept at a designated, legitimate armory/arsenal or something like that.

[MrBenchley]

15. No it isn't...

Even in Revolutionary times most guns were collectively bought and distributed...

"a large body of armed individuals that are not under government control"
That's just absurdist....the Founding Fathers intened no such thing, as the briefest glance at the Federalist Papers or American history will show...when the Whiskey Rebellion broke out, nobody said "Oh goody, yon Second Amendment just like we drew it up." George Washington took troops and put it down quick.

[Frodo]

17. Untrue.

Most firearms were privately owned. The armory had the publicly owned weapons, but virtually every household had their own.

And that's a misunderstanding of the Federalist papers. There is no question that the intent was for the whole body of the populace to be armed and there was not a requirement that this "militia" look anything like what is being claimed. The militia was the entire population of adult men.

[MrBenchley]

22. Nope...what I said was absolutely true...

"There is no question that the intent was for the whole body of the populace to be armed"
Not even close to true...From Federalist 29: " To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured."

Furthermore, from the same paper, here's the answer to the idea that yokels are to wobble about with their own guns...

"It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union ``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.''
Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security."

[Frodo]

26. Read it again. Some parts you "left out" are instructive.

``The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.

"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia."


The militia is everybody. And it's unreasonable to train everybody, but we should do the best we can. The trained and organized part of the militia is very much like the national guard... but the militia is everybody.

[MrBenchley]

28. Yeah, surrrrrrrrrre....

"The trained and organized part of the militia is very much like the national guard"
In fact, it IS the National Guard, as the courts have ruled again and again....

[Frodo]

32. Some have. Some have not.

"if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."

That is, if the government raises an army to hold down the general populace, the population as a whole will be able to stand up to them. That's not the national guard.

[MrBenchley]

35. Nope, all the courts have...

and it's still the National Guard, no matter how you'd like to spin it.

[Frodo]

38. Really? ALL of them? How about the USSC in Presser?

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

Or Miller?

"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.”

[MrBenchley]

41. All of them...

And it's hilarious to have somebody try to spin Miller as supporting anything but collective rights. There's a reason why those in favor of gun control cite it in court, and those opposed almost never do.

[Frodo]

45. Actually, I used Miller to dipute

that the courts have ruled over and over that the milita was the National Guard.


Miller is clear that the militia (for purposes of constitutional interpretation) was the adult population of the naion. NOT some government controlled subset.

Yes, Miller is clear that this is not an absolute right... but none of them are. You DON'T have an absolute right to free speech either... as plenty of courts have ruled.


But on the topic of the thread... it would seem that the DNC doesn't agree with you. And agrees instead with me that 2A is a losing issue for us right now when people see us as attempting to restrict what THEY obvioulsy believe is their right to own firearms.

[MrBenchley]

48. And the courts use Miller to uphold gun control

and the collective right....

"it would seem that the DNC doesn't agree with you."
Says who? As I said, I agree with upholding the Second Amendment right to own guns, since it's clearly a collective right.

"when people see us as attempting to restrict what THEY obvioulsy believe is their right to own firearms"
What people are these? The ones trying to evade a background check at gun shows? The ones who feel life is a hollow mockery unless they get an assault weapon in their sweaty shaky hands?

[Frodo]

50. That would not seem to be the case.

I doubt the plank is targeted at those people since it stil leaves in those rational restrictions, doesn't it?

The plank is clearly targeting people who don't agree with you on the subject. It's a wink and nod that "we won't take away your guns".

[MrBenchley]

53. Of course it is the case...

"The plank is clearly targeting people who don't agree with you on the subject"
And that's why it calls for an assault weapons ban and closing the gun show loophole...uh-huh.

And who ever believed Democrats WERE going to take away their guns, but the Tim McVeigh wannabes of the world...and they hate gays, blacks, Jews and uppity women a much as they love guns. They stopped voting Democratic about the time Reagan and Thurmond became Republicans--and for the same reason.

[Frodo]

55. Uh, no.

"And that's why it calls for an assault weapons ban and closing the gun show loophole...uh-huh."

I happen to agree with both of those provisions and you haven't found us agreeing on much, have you?


"And who ever believed Democrats WERE going to take away their guns,"

You... um... don't follow politics very much, do you? Goodness, if you just watched West Wing or "The American President" you would get a glimpse of it.

You're talking like someone on the right saying "all we want is some reasonable restrictions on minors getting an abortion without parental notification". We ALL know that the people backing that rule want to end all abortions.

Yes, a significant portion of our party want to outlaw (or severely restrict) personal ownership of firearms. You really going to try to deny that?

[MrBenchley]

57. Gee, I follow politics...

and I have to say,m there's nothing but the lunatic fringe pretending that there's any move afoot buy anybody to take away guns...

"You're talking like someone on the right saying "all we want is some reasonable restrictions on minors getting an abortion without parental notification". We ALL know that the people backing that rule want to end all abortions. "
Gee, that's truly funny...wonder where the Second Amendment Caucus stands on that issue. Wonder where the folks like Grover Norquist on the NRA board stand?

[library_max]

69. You're right on the politics, but you're wrong on the law.

Miller was decided in 1939. A few things have changed since then. While the Miller precedent that the Second Amendment applies only in the context of the militia still stands, there is no such thing as an armed militia any more. The Silveira decision, for example, clarifies this.

[Frodo]

73. The Silveira decision does not control the USSC

And the 9th circuit doesn't have the best track record at being upheld (sometimes without even the prefessional courtesy of hearing the case).

[library_max]

80. It stands. It is not being reviewed.

And this in spite of a multi-million-dollar lobby with plenty of lawyers devoted to the notion that the Second Amendment protects individual RKBA.

Silveira fits perfectly with all of the other standing precedents on the Second Amendment.

[Frodo]

81. Ever hear of the 5th circuit? They're at the same level as the 9th

The Silveira ruling "stands" if you live in the 9th circuit (which I have not since '78).

The Emerson ruling contradicts it and finds a specific right to own a firearm apart from any militia connection. It "stands" too.

AND, if you read the 9th circuits own ruling in "Nordyke v. King" you will find that one of those three judges ALSO found an individual right and the panel basically said they were inclined to agree with Emerson if they were writing a fresh decision, but since they were just a partial panel, they could not overturn a previous en-banc decision. Specifically: ""Emerson "engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson." However, the Ninth Circuit had already endorsed the "collective-rights" view in Hickman v. Block (1996), and the panel here was bound by that precedent. Without an en banc rehearing by eleven judges on the circuit, a three-judge panel cannot overturn circuit precedent."

[MrBenchley]

82. The most conservative circuit in the country

and they ruled that the Second Amendment had nothing to do with Emerson's case...and found another pretext for taking his guns away...

Swell poster boys the RKBA movement has, by the way, a loony who threatened his ex-wife with a gun he wasn't supposed to have.

[Frodo]

84. Yeah, and the 9th is the most liberal.

And both rulings stand. And, despite political predilections, the 5th has a better record of being upheld than the 9th does. Especially when part of the 9th appears not to agree with the decision any more.

And they had every reason to take the guns away. That's been my point. Not every case dealing with guns has a 2nd Amendment underpining to it. You can take away certain types of guns or guns in certain situations WITHOUT violating the 2nd Amendment.

But they DID rule that the 2nd was an individual right seperate from a milita - just that it didn't apply. That contradicts what you said.

And yes, it's a "swell poster boy". That's why the NRA and such have avoided appealing some of these decision upwards. They don't want the "Roe v. Wade" of gun control to be decided on a case where their client has other blemishes than just "owns a gun".

Just like it was a mistake to run with the "under God" case when we had a defective client (legally defective claim, not a defective person). The 9th should never have sent it up - they just got their wrists slapped.

[MrBenchley]

86. Which is why gun loonies lie about it all over the web

And the plain fact is that the Second Amendment has no bearing on the Emerson verdict. So it really doesn't matter what else they nattered about.

It's telling to see our "pro gun democrats" bitching about "liberals" though....

And it's hilarious to see you STILL pretending some higher purpose in gun loonies not suing on Second Amendment grounds...

[Frodo]

90. You're missing it.

It IS part of the ruling. It wasn't WHY they ruled AGAINST him, but it IS precedent. And the 9th Circuit has already recognized that.

On your last point, you are just ignoring the issue. There is NO evidence that they are not suing on 2A grounds (I cited one where they did) - they just didn't in THAT case. It didn't apply and they wouldn't have won. It is LONG SETTLED PRECEDENT that the 2nd Amendment does not give rights to own ANY weapon. So in a case where the weapon type (like a large caliber weapon) is outlawed, tehy know they can't try to re-argue the 2A grounds. Look at some of the parties involved - the magazines were arguing free speech because it's the only thing that impacted them. The law in dispute didn't outlaw OWNING the weapons, it outlawed ADVERTISING them for sale or selling them. They argues 1st Amendment because THAT was the issue involved.

If I'm charged with a crime involving a gun and refuse to testify - but they make me anyway... I sue on 5th Amendment grounds. The fact that the case INVOLVED a gun and I don't bring up 2A rights does NOT mean that I think RKBA is already settled against me. It isn't relevant.

[MrBenchley]

92. Not missing a damn thing, frodo...

"The law in dispute didn't outlaw OWNING the weapons"
Nobody said it did. The law banned selling and distributing them...

"Mar. 24--Contra Costa supervisors deflected volleys from Second Amendment advocates Tuesday and prohibited the sale of a weapon they say could transform a refinery into a fiery chemical weapon.
The board voted 4-0 to ban firearms dealers from distributing powerful .50-caliber rifles in the county's unincorporated areas. Supervisor Millie Greenberg of Danville was absent. "

http://www.highbeam.com/library/doc0.asp?docid=1G1:114539220&refid=ink_d5&skeyword=&teaser=

[Frodo]

98. Right!

"The law banned selling and distributing them"

And the 2A does not protect the right of an individual to own large caliber weapons. It's long decided. So someone failing to re-argue that point is useless. Lacking any other 2A connection I don't see why the failure to try that argument implies they don't think the 2nd is an individual right.

Think of it as a "parental notification" case. The failure of the anti-choice crowd to argue that some PA law outlaws abortion is NOT that they don't think it should be outawed, it's that Roe is settle law unless the Supremes say otherwise.

The interpretation of the 2A as purely a corporate right is NOT such a law. It would be silly on it's face. The founders thought it was SOOOO important to put in the Bill of Rights a rule saying the GOVERNMENT was allowed to give people guns for corporate defense? Why would you even need to say that? What nation did't already have that ability? And what other of the Bill of Rights gurantees a GOVERNMENT right?

[MrBenchley]

100. This is TOO funny....

"The interpretation of the 2A as purely a corporate right"
Helloo...perhaps you'd like to show us where anybody anywhere has ever said "corporate right."

[ROC]

33. SORRY nOT TRUE

[CO Liberal]

34. Would You Care to Elaborate?

:shrug:

[CO Liberal]

85. I Guess Not

:shrug:

[MercutioATC]

79. If that's true, why word it as a "well regulated" militia?

That seems to indicate something more organized than the entire adult male population.

[rock]

11. The Constitution does NOT state that as a prerequisite

Merely the reason for the rule. If the reason changes, the rule remains. Now if it had said, "As long as ..."

[MercutioATC]

14. And the new reason would be????

What new reason wouldn't change the intent of the rule?

[Frodo]

19. overthrow of a tyrannical government?

They had just thrown off the yoke of an oppresive government and had declared the right "of the people" to do so.

They were protecting that right to do it again if the government got out of hand. Interestingly enough... one example given was "irritated by being called upon to undertake a distant and hopeless expedition".

But you don't need to change "the intent of the rule"... that WAS the intent. It is incorrectly spun that "militia" THEN means somthing like "national guard" NOW. It didn't.

[MercutioATC]

23. Right. It means groups like the "Michigan Militia".

I'm just saying that the intent is something we can agree with on a theoretical level but there's not a modern-day example that most of us would be happy with.

It still doesn't protect the private ownership of firearms in the absence of a militia (an organized group designed to counter the strength of the Federal Government by force, if necessary).

[MrBenchley]

30. Furthermore the militia has to be "well regulated"

which means the various state National Guards....

You'd almost think this thing hasn't been settled by court after court after court....to hear some folks here...

"The ACLU has often been criticized for "ignoring the Second Amendment" and refusing to fight for the individual's right to own a gun or other weapons. This issue, however, has not been ignored by the ACLU. The national board has in fact debated and discussed the civil liberties aspects of the Second Amendment many times.
We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.
The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms."

http://archive.aclu.org/library/aaguns.html

Worth noting that when the gun nuts go to court to fuss about this or that gun law, they almost never do so on Second Amendment grounds (and if they do, they get laughed out of court)...

"SAN FRANCISCO -- Gun-rights supporters filed legal papers in federal court Tuesday seeking to block Contra Costa County from enforcing its controversial ban on the sale of .50-caliber rifles.
Attorneys representing a coalition of gun enthusiasts, manufacturers, publishers and retailers will appear in U.S. District Court in San Francisco Aug. 12 requesting a preliminary injunction.
A month ago, the groups sued the county in federal court, charging that the ordinance violates First Amendment free speech rights and is pre-empted by state law. "

http://www.trivalleyherald.com/Stories/0,1413,86~10671~2257292,00.html

Does anybody want to pretend that these whackos just forgot about the Second Amendment?

[Frodo]

31. Nope. It means everyone.

Yes, it's out of date. Yes, if they were writing the same thing today it would be different.

So you AMEND it. You don't go "interpreting" it when the founders clearly intended an individual right to own firearms. You CHANGE it. You FIX it.

If this is what people want, you get them to wake up and VOTE for it.

But we both know that ISN'T what people want. Such an amendment would die a horrible death. So we play word games.

[MrBenchley]

37. It means no such thing...

no matter how you want to spin it.

[Frodo]

40. The Supreme Court would seem to disagree with you.

The militia was all adult males capable of bearing arms. Not just a state-run Guard.

No matter how you would like to spin it.

[MrBenchley]

42. Only to those who stretch "seem"

out of proportion...

[library_max]

70. The Supreme Court of 1939 might have agreed.

A few things have changed since then. Check out the Silveira decision, for example.

[library_max]

39. The courts say otherwise.

Every single standing US court decision on the Second Amendment has ruled that it did not provide the case principals with an individual right to keep and bear arms. Every single case rules in favor of a gun control measure and against a gun owner.

[MrBenchley]

43. Which is why gun nut groups rarely sue on Second Amendment grounds

and when they do, they generally get laughed out of court...

But like the current lawsuit in Contra Costa County, CA, they always pick some other grounds...

[Frodo]

46. That's because the suits have not supported it.

They aren't using it to defent the right to own .50 cal weapons. That would be ridiculous.

But the states also aren't trying to pass laws that say "you can't own any firearms" are they? They know that THIS ALSO would be "laughed out of court".

[MrBenchley]

49. Why not?

Clearly if the Second Amendment granted any sort of individual rights...the ban would be unconstitutional on those grounds.

But then those groups know the difference between what the courts and the Second Amendment actually say, and the dishonest swill they ladle to their ignorant followers.

[Frodo]

52. Simple

A right to own firearms does not mean ANY firearms. Just as a right to free speech does not mean "say anything any time".
And the 10th ammendment doesn't mean that Cognress can't do ANYTHING not already in the Constitution.

[MrBenchley]

54. In that case...

all you would have a right to own is a flintlock...funny we don't see "enthusaists" claiming that anywhere...

"And the 10th ammendment doesn't mean that Cognress can't do ANYTHING not already in the Constitution."
Yeah, and the fifth says you don't have to incriminate yourself. But clearly, if the Second Amendment meant what "enthusiasts" say it does, there'd be no reason NOT to sue on Second Amendment grounds.

So do you suppose they meant to write "Second" and had a typo while drawing up the court papers?

[Frodo]

56. It's really not one extreme or the other.

We have a right to limit constitutional protections where the clear interest of the people is at stake.

It really isn't "You only have a right to own the exact guns they owned when they wrote the amendment" or "you can own any weapon you want". There's plenty of area for regulation in between. A law making it illegal for a felon to own a weapon goes against the plain text, but is constantly upheld just like they don't let you (pardon the extreme cliche') shout "fire" in a crowded theater.

[MrBenchley]

58. Sure it is...

Either there's an individual right because every shithead with a gun in his pants is a militia onto himself, or there isn't. And has it happens the courts have ruled AGAIN and AGAIN and AGAIN and AGAIN and AGAIN that there isn't.

"A law making it illegal for a felon to own a weapon goes against the plain text"
Nope. There's no individual right.

[Frodo]

59. Dream on.

Constitutional interpretation does not boil it down to "all guns ok" or "no guns ok". The cases you refer to deal with the TYPES of firearms, not the governments ability to keep a citizen from any guns at all.

[MrBenchley]

60. Hahahahahaha...

"The cases you refer to deal with the TYPES of firearms"
So that's why these groups are trying to knock down the ban under the First Amendment and not the Second? That's certainly believable....NOT.

[Frodo]

61. ????

No, because they recognize that the 2nd doesn't protect an absolute right to own any weapon you want. As I think I've said three or four times now. You can't use the 2nd Amendment to protect your right to own a nuke. So they don't try.

Why is this difficult to understand?

[MrBenchley]

62. So in other words...

These groups want to pretend they have a right to own these public menaces...but they also want to pretend that it's not a right under the Second Amendment, but the First, even though their public claims say they have a Second Amendment right.

"You can't use the 2nd Amendment to protect your right to own a nuke."
Or even a handgun...because all the Second Amendment covers is the collective right to have a well-regulated state milita.

[Frodo]

64. You seem to think repetition strengthens your argument

And I notice you felt it necessary to add "state" in there where the courts have failed to put it. Must have been hard on you.

You have had no response to "the militia was all adult males".

And it isn't a right to a militia - no reading supports that. It's the right of the people to HAVE guns SO THAT a militia was possible (since again, they were expected to brign their own guns).

[MrBenchley]

68. And you seem to think bland assertion is an argument

and that your opinion is more important than the courts...

And since you bring up unanswered questions, do you suppose thosee gun groups just plain forgot about the Second Amendment when they filed their idiotic lawsuit?

[Frodo]

74. Happy to. They don't all

Of course, I take notice of your failure to answer the question again, but I'm happy to answer yours.

2A groups do NOT always rush to those cases because they don't agree that you havfe to be able to own a howitzer to protect the right to own a 9mm.

The Silveira case brought up on another post is a great example. Seveal gun groups do NOT want to appeal it to the USSC because it doesn't favor them. The facts of the case could lean a decison AGAINST even if the court agrees with them.

Take an example. The recent "under God" decision would not have been appealed had it gone the other way in the 9th circuit... because he was likely to lose on procedural grounds (as he DID) and the story would be spun (as it WAS) as the USSC putting down this crazy notion that God should not be in the pledge. They made no such ruling. Supporters of the case are looking for another case without such encumberances (and the USSC is running like scared rabbits to avoid making a decision).



Similarly, 2A advocates are searching for a "clean" case where 2A is THE issue. So far, no such cases have come to the Supremes since the ones we've been debating here.

[MrBenchley]

75. Wow...you missed the point entirely...

The gun nut groups are not arguing that they have no right to their dangerous toy...they are arguing that they have a right to them...but that that right falls under free speech and the First Amendment (which is so absurd as to be near mindless).

"The recent "under God" decision would not have been appealed had it gone the other way in the 9th circuit..."
Sez you.

[Frodo]

76. Nope. You missed mine.

It isn't the gun nut groups making those cases. The big groups largely dodge the cases they know they can't win. SURE, the people who ARE making the arguments are ALSO gun nuts...

But the hard core 2A guys are still looking for the right case. We haven't given it to them yet.

[MrBenchley]

77. Who DO you think you're kidding?

"t isn't the gun nut groups making those cases"
It sure the fuck isn't Contra Costa county suing itself.
"The legal challenges have been filed on behalf of the California Rifle and Pistol Association, the Side by Side Society, California Association of Firearm Retailers, Fifty Caliber Shooters Association, Double Gun Journal, Sports Afield, Barrett Firearms Manufacturing and county resident Eric Williams. "

http://www.insidebayarea.com/portlet/article/html/fragments/print_article.jsp?article=2367481

"The big groups largely dodge the cases they know they can't win."
The NRA has managed to go through its entire existence without suing on Second Amendment grounds....that's some pretty admirable restraint...or something (snicker).

[Frodo]

83. You are operating under a false assumption

That nobody cahllenges these things based on the 2nd Amendment. That they know they will be laughed out of court and that there is no contrary precedent.

All of those are wrong. They've challenged (when the issue WAS the 2A) even IN the 9th circuit. AND the 5th circuit has rules the other way (for an individual right) and there ruling carries as much weight as the 9th does.

In fact, the 9th circuit has a more recent rulign where they admit they would be inclined to agree with the 5th if they didn't have to defend their previous decision.

[MrBenchley]

87. Feel free to show us the cases...

and pray tell us why these numbnutz in Califronia are suing under First Amendment grounds...

"AND the 5th circuit has rules the other way (for an individual right) "
Nope. But hey, maybe now that they have that dishonest fuckwit Pickering on the Court, you never know...

[Frodo]

88. Excuse me?

Did their ruling say or did it not that there was an individual right? It DID.

What you keep missing is that how they rule on a particular case is seperate from the constitutional issues. As I have said a number of times... YOU CAN rule that someone broke a law and still rule that the 2A gurantees a RKBA. You just say that the law in question isn't a 2A issue. Which is exactly what they did.

The fact that they did not use 2A as the reason for the decision does not make the ruling any less weighty. If the USSC rules tomorrow that a traffic ticket stands "oh and by the way, we overrule Roe v Wade" that counts too. In this case it was not so far afield. They ruled with the plaintif on 2A grounds but also ruled that it was insufficient to rule in his favor on the charge.

[MrBenchley]

89. It did not...

What they said was that the Second Amendment had no bearing on the Emerson case...

"The fact that they did not use 2A as the reason for the decision does not make the ruling any less weighty. "
Maybe not to the sort of person who wants to pretend that these gun loonies are suing to get their .50 caliber guns under the First Amendment out of some noble regard for the purity of the Second. But the fact is they'd be laughed out of court bringing up the Second.

"If the USSC rules tomorrow that a traffic ticket stands "oh and by the way, we overrule Roe v Wade" that counts too"
Yeah, surrrrrrrre....

[Frodo]

91. You really don't follow the law much do you?

It's precedent and EVERYONE recognized at the time that it created a conflict with the 9th circuit that you blissfully ignore.


They said:

"We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect. We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment."

"There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, "the people" have "rights" and "powers," but federal and state governments only have "powers" or "authority", never "rights."

"The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard."

We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.

{snip}

We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.


"Yeah, surrrrrrrre...."

You just don't get it. EVERYTHING in the majority opinion of a court is aprt of the ruling. Even if it is not the underlying principle behind the ruling.

[MrBenchley]

93. I follow it...

"EVERYONE recognized at the time"
Who would that "everyone" be, frodo...the usual dishonest gang of gun loony groups like GOA and JPFO?

[Frodo]

94. Then you "follow" it but don't "get" it.

Yes, EVERYONE.


There's just a hole in your logic. And it goes back to yesterday's black or white belief that the 2nd Amendment either gurantees a right to own ANY weapon you want OR it's just for the militia. My position is that it IS an individual right AND simultaneously (just like EVERY other right) the government can impose reasonable restrictions on it when the clear public good is involved.

So I DO have a 1st Amendment right to free speech, but if I'm on a sequestered jury, I can be jailed for just saying whatever I want. If I challenged that jailing on 1st Amendment grounds, the court we say "we afirm an individual right to free speech - but we also hold that THIS action did not violate that right".

THAT's the same thing the 5th said in Emerson. There IS an individual right to own a firearm, but the government may restrict that right in certain circumstances… like forbidding convicted fellons from owning a gun… their 2A right does not outweigh the public's rights. They were merely deciding that a law restricting someone under a restraining order from owning a gun did NOT violate their 2A rights. I compeltely support that. Neither does a waiting period, or a trigger lock law, or an "assault" weapons ban.

THIS is why I keep pointing out it's so important to pick your cases carefully. The RKBA crowd would not want THIS case going to the USSC either, because it isn't "pure" 2A. They have a muddy client just like the "under God" case. They ruled against the plaintif while ruling in FAVOR of the 2A position. They are stuck trying to explain how they won the point but lost the case.

[MrBenchley]

95. Not even close to true....

But hey, it's wonderful to see fantasy is alive and well.....

"The RKBA crowd would not want THIS case going to the USSC either"
And so that's why they went to court and sued, all against their will......uh-HUH.

[Frodo]

96. You have a knack

for ignoring the meat of the argument and picking the part you can belitlle.


Here's the part you have no argument for - ready?


The 5th circuit DID rule, in a completly BINDING part of the ruling - not some incidental-doesn't-really-count part (there IS not such thing in a majority opinion), that there is a individual RKBA. They SPECIFICALLY rejected the "corporate right" argument.

Please show me ANY legal precedent for ignoring the text of a majority ruling?

AND (and don't take this as the one part to respond to) Part of the 9th circuit has since said that if they were ruling from scratch today, they'd be inclined to agree with the 5th.

The current 9th circuit opinion contradicts the 5th. It can only be settled by one changing their mind (in which case it's only good THERE) or by the USSC ruling on it. Neither is binding anywhere else. But if you get into a 2A case in the 5th circuit right now, all of the lower courts are BOUND by the precedent.

[MrBenchley]

97. Gee, frodo...

the "meat" of the argument as far as I can see is that you want to pretend an individual right exists based on the irrelevant marginalia of one case in the Fifth...and want to pretend that an actual lawsuit by gun loonies that ignores the Second Amendment either doesn't exist, or is being pursued by gun loonies under duress, or represents some noble principle about the Second. All of which are ludicrous.

[Frodo]

99. "Marginalia"?

What a laugh! That's a good one. Several paragraphs in the heart of the argument is a marginal note? Just a passing comment with no weight?

Marginalia in high court decisions is found in short footnotes (and is still of some consequence as precedent if it's not in a "concurring" or "dissenting" opinion) NOT whole pages of text.


BTW - you didn't address the point. You continue to claim THAT part of the ruling is of little weight. Please show me legal precedent for ignoring majority rulings like that?

And no - you continue to ignore the argument. They aren't making a 2A argument in that case because none exists. I know it, they know it - only you want to pretend that in order to be "true" 2A they must believe it supports the right to own ANY weapon. The courts HAVE ruled conclusively against THAT. A rule forbidding the sale of large caliber weapons DOES NOT VIOLATE THE 2nd AMENDMENT. {b}I support an individual right and would never try that argument. It does NOT mean I think 2A argument for ALL gun ownership would be laughed out of court.

[MrBenchley]

101. Marginalia...

"They aren't making a 2A argument in that case because none exists."
No shit, sherlock. Hence the absurd First Amendment grounds...

[MercutioATC]

44. Now THAT I agree with.

[Frodo]

47. What language would you envision?

And what do you think the chances would be of ratification?

[MercutioATC]

51. Frankly, I don't really know..the concept bears merit, but the application

poses problems, especially in our current state of hysteria.

Regardless of the wording, I don't feel it would stand much of a chance of ratification.

[sweetestpea]

67. This is enough to drive someone nuking futs

The militia is NOT the National Guard. The reason for the 2cnd amendment is to protect the people from the government. The National Guard is controlled by the government. Hence the militia and National Guard are not even close to the same. The National Guard is all voluntary, the militia has been called up to serve if they fit the profile, All abled bodied men between the ages of 18 and 45 (read, the draft)

Some have quoted the Federalist #29. You cannot excerpt several paragraphs from one paper to prove a point, no more that you can take one act of one of Shake spear's plays and say 'this is the essence of Shakespear'. The body of work needs to be taken as a whole.

Having given the above admonition, I will do exactly that, however I quote the last paragraph which does sum up the authors thought, (Hamilton).

"In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy."

In short, it is up to the people to protect themselves.

So when I walked out of my local sheriffs office last month with the proper, government approved paperwork, that not only allows me to own a fire arm, as a private right, but have the right to carry a weapon concealed on my person in public, the government is wrong?. If you like I can forward to you the name of the sheriff, mayor, board of supervisors, senator, and, representative that serve my district, state attorney general, and Governor. They will be tickled to know they are all in violation of the constitution and every single court case that has addressed the right to keep and bear arms as a private citizen. I don't qualify for the militia any longer but the law allows me to volunteer

[library_max]

71. You've got it backwards.

Just because something happens to be legal for the moment does not make it a Constitutional right. If spitting on the sidewalk is not illegal in your town, that doesn't mean that you have a Constitutional right to spit on the sidewalk.

As for protecting us against the government, please remember that the government has tanks, planes, missiles, artiller, gas, biological weapons, and nukes. What are you going to do against all that with your pistol or rifle?

All the standing court cases regarding the Second Amendment have been decided in favor of the challenged gun control measures and against the private gun owners. All of them. There is no basis in any US court decision for an individual Second Amendment RKBA.

[MrBenchley]

72. Of course the militia is the National Guard....

"The Georgia National Guard has been known by many titles during the course of its history--militia, state guards, home guards, and since 1903, the National Guard."

http://www.sos.state.ga.us/Archives/rs/gng.htm


"National Guard   
Related: United States Government
U.S. militia. The militia is authorized by the Constitution of the United States, which also defines the militia's functions and the federal and state role. Article 1, Section 8 provides that Congress shall have the power to call forth “the Militia to execute the Laws of the Union, suppress insurrections and repel invasions.” Congress was entrusted with organizing, arming, and disciplining the militia, but the appointment of officers and the training of the militia were reserved to the states. Further provisions were made in the Second Amendment. In peacetime the National Guard is placed under state jurisdiction and can be used by governors to quell local disturbances, as in Newark and Detroit riots in 1967, and to help in times of local disasters, such as floods and hurricanes. In times of war or other emergencies the National Guard is absorbed into the active service of the United States and the president is commander in chief. "

http://66.218.71.225/search/cache?p=%22National+Guard%22+militia&u=www.encyclopedia.com/html/N/NatlG1uar.asp&w=%22national+guard%22+militia&d=3A967770F3&icp=1

"The National Guard, the oldest component of the Armed Forces of the United States and one of the nation's longest-enduring institutions, celebrated its 367th birthday on December 13, 2003. The National Guard traces its history back to the earliest English colonies in North America. Responsible for their own defense, the colonists drew on English military tradition and organized their able-bodied male citizens into militias.
The colonial militias protected their fellow citizens from Indian attack, foreign invaders, and later helped to win the Revolutionary War. Following independence, the authors of the Constitution empowered Congress to "provide for organizing, arming, and disciplining the militia." However, recognizing the militia's state role, the Founding Fathers reserved the appointment of officers and training of the militia to the states. Today's National Guard still remains a dual state-Federal force. "

http://www.ngb.army.mil/about/

[MercutioATC]

78. Local, federal and state laws may allow this, but the 2nd Amendment

clearly was written to cover private gun ownership under the organization of militias, not purely as individuals.

Again, I'm not against private gun ownership. I just think the 2nd Amendment is outdated and doesn't apply to private gun ownership any more.

[Tandalayo_Scheisskopf]

3. Which will lead...

To LaPierre and The NRA screaming that this is nothing but a subterfuge, a strategy to lure poor, unsuspecting shooting sports enthusiasts into a sense of false security, before stormtroopers kick in the doors. That the only really sensible thing to do is vote for every frothing, retread John Bircher that is running. That the repukes are the ONLY HOPE for gun owners.

For the NRA ain't about guns. Guns are simply a means to their ends.

[MrBenchley]

9. Yup....

The NRA and their like will be peddling the same crap they always do right up until election day...the GOP's ugliest and most extreme splinter group.

"PITTSBURGH -- A man whose son was killed in the Columbine High School shootings literally walked in his child's shoes to the National Rifle Association convention, where he hoped Vice President Dick Cheney would address the federal assault weapons ban set to expire in September.
Tom Mauser, whose son Daniel was killed with an assault weapon in the Littleton, Colo., killings five years ago Tuesday, said continuing the ban is common sense.
Assault weapons "are the weapons of gangs, drug lords and sick people," Mauser said before his three-block march to the convention, which runs through Sunday. "It is a weapon of war and we don't want this war on our streets."
Mauser entered the convention hall where the NRA was meeting, but was turned away by a security guard as several conventioneers applauded. A couple of conventioneers yelled "Get a life" and "Vote for Bush." "

http://www.thedenverchannel.com/news/3015989/detail.html

[Name removed]

4. Deleted message

Message removed by moderator. Click here to review the message board rules.

[LoZoccolo]

6. What's your problem?

So there are some pro-gun people on this board, so?

[iverglas]

18. I dunno; what's yours?

So there are some pro-gun people on this board, so?

Might I suggest that yours consists of saying completely irrelevant things, regarding something about which you know nothing, to people who weren't talking to you?

[LoZoccolo]

24. No, you might not.

:hi: :nuke:

[LoZoccolo]

25. P.S. You were talking to me.

And everyone else here. Especially considering what you posted, you should have sent a PM.

[LoZoccolo]

27. P. P. S. You wish I didn't understand what you were talking about.

That way, I wouldn't have called you on it. But I did.

[iverglas]

36. what a flurry!

May I say (as I already did, of course) how eagerly I am looking forward to reading Jody's thoughts on this matter!

I am in a difficult situation myself, of course -- I try to refrain from expressing thoughts about the platforms of USAmerican political parties on matters of domestic policy that do not involve fundamental rights issues.

For instance, women's reproductive rights are fundamental human rights, and I will speak out for them when they are under attack in the US just as I will when they are under attack in, oh, Afghanistan.

But there are other matters that are matters of policy and do not lend themselves to clean, clear, unassailable logic based on universally accepted principles. The extent to which public speech may be limited in the interests of the public and of members of minority groups might be one; whether members of the public may be required to obtain necessary medical services under a single public health care plan would be another. And the restrictions that a society places on access to and possession of firearms is certainly another.

Y'see? I'm kinda like a constitutional court that way. I might have opinions about such policy-type things when the society in question is not my own (and unlike a court, of course, I might even express some when invited), but I don't presume to say that they are better than the opinions of the people involved/affected.

So while I might (if invited) express the opinion that the Democratic Party's platform in this particular instance is a bunch of bumph, I'd be more interested in hearing the opinions of the people involved/affected.

And entirely naturally, I'd be particularly interested in hearing the opinion of someone who thought this item to be so newsworthy that it deserved a thread in our beloved dun gungeon. Wouldn't anyone be??

[LoZoccolo]

10. P.S. If Jody visited only once a month...

...it would have taken over 80 years to rack up over a thousand posts.

[Name removed]

12. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Frodo]

21. This falls well into the "if you can't beat them, join them" category.

2A is a losing proposition for us right now.

Holding on to the wedge issues (gunshow loophole, "assault" weapons, etc) is our best bet. No "gun grabber" is going to vote for Bush because Kerry wants the issue off the table.

Realize that most of the states where this election will be won or lost are NOT states where the 2A issue plays well for us.

[Bowline]

63. Mighty nice of them...

To decide to protect our rights.

[MrBenchley]

65. "Them," huh...

Telling...

[Bowline]

66. Huh...?

???

[Wickerman]

102. I'm locking this

The opriginal poster has not been back to offer comment in this thread, nor did he offer comment on posting.

At 100 posts I consider this an abandoned thread. We rarely have this problem in the Gungeon, but such happened last fall and we dealt with it like this. Untended threads tend to turn into flame wars. This one did nothing to ease the trend.

And, btw- thanks Dems!