Decision in Kachalsky LOSS

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  • fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974

    JD-IAFF

    Banned
    BANNED!!!
    Mar 21, 2013
    134
    Then why did the Heller court devote a paragraph or two, declaring that, although modern warfare technology created a disconnect from the militia clause, that fact could not change their interpretation of the right? Is the second amendment NOT a mechanism of check and balance to decentralize power and prevent a monopoly of force?

    If it's the stuff of tin foil hats, then some circuit court justices in the ninth are wearing them, because the same view was expressed by the first Nordyke panel, right before they declared the second amendment applicable to the states (and before the decision was reversed en banc, for reasons unrelated to that view)

    It's wishful thinking that plays well with the exceedingly disaffected, IMO, and somewhat of a moot point as well. Heller alluded to Miller in dicta. At the time, as previously noted, we had militia conscription. Virtually all adult males at the time were (by force of law) conscripted into the militia, had to provide their own arms and had mandated periodic training. We could probably argue all day long about the intended purpose of those militias (external vs internal threats, or both), but I think that in that context, we have to consider Shays Rebellion and the Whiskey Rebellion.

    Those folks weren't afforded acclaim for exercising this imagined right to resist tyranny. They were arrested and charged with treason, so I'm left trying to square the incompatible assertions of "the founders intended to empower insurrection" and "the founders vigorously put down insurrections via force."

    Again though, it's a moot point. The concept of a militia as it existed then doesn't exist any longer now. We're no more inclined to allow insurrection today than we were back then, so I just don't see where this line of reasoning goes.
     

    Elliotte

    Ultimate Member
    Aug 11, 2011
    1,207
    Loudoun County VA
    A mess for sure. But it sorta fun watching Illinois struggle with it. I rather wish we had the downstate power to block that the pro-gun people have in Illinois.
    I wish we had State Senate seat distribution similar to the US Senate, 2 seats per county, that'd help a lot in MD and most states. Likewise, repealing the 17th Amendment (though tough to pull off) would help in the US Senate as well as the interests of the states would again be represented in the Federal Govt.



    Someone correct me if I am wrong, but isn't NY's permit to purchase also their permit to carry? In other words, isn't the NY case fundamentally different from Wollard becuse the permit to purchase and the permit to carry are the same permit?

    Sorry if this is a dumb question but it has had me wondering.
    You might be thinking of the Mass permitting scheme. They've got like 5 levels, some of which are purchase only, some go up to full concealed carry.
     

    2AHokie

    Active Member
    Dec 27, 2012
    663
    District - 9A
    It's wishful thinking that plays well with the exceedingly disaffected, IMO, and somewhat of a moot point as well. Heller alluded to Miller in dicta. At the time, as previously noted, we had militia conscription. Virtually all adult males at the time were (by force of law) conscripted into the militia, had to provide their own arms and had mandated periodic training. We could probably argue all day long about the intended purpose of those militias (external vs internal threats, or both), but I think that in that context, we have to consider Shays Rebellion and the Whiskey Rebellion.

    Those folks weren't afforded acclaim for exercising this imagined right to resist tyranny. They were arrested and charged with treason, so I'm left trying to square the incompatible assertions of "the founders intended to empower insurrection" and "the founders vigorously put down insurrections via force."

    Again though, it's a moot point. The concept of a militia as it existed then doesn't exist any longer now. We're no more inclined to allow insurrection today than we were back then, so I just don't see where this line of reasoning goes.

    Just because the founders didn't make insurrection exceedingly easy to accomplish or simply roll over at the first sign of one, doesn't mean they didn't empower or appreciate an ideal insurrection for the "right" reason(s). After all, there would be no founders without insurrection.

    Further, I do not see those assertions as being incompatible. It is possible for one to empower the possibility of insurrection but still be opposed to a specific incarnation of insurrection.

    As a (possibly poor) analogy of what I'm trying to say, I love the right to free speech, but I don't particularly enjoy what the Westboro Baptist Church does with this right. I don't see my appreciation for the right to free speech as requiring me to agree with everything that is said anymore than I see the founders' empowerment of an ideal insurrection as requiring that they should have supported all insurrections for all reasons.
     

    Haides

    Ultimate Member
    Oct 12, 2012
    3,784
    Glen Burnie
    Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

    I'll just leave this here.
     

    JD-IAFF

    Banned
    BANNED!!!
    Mar 21, 2013
    134
    Just because the founders didn't make insurrection exceedingly easy to accomplish or simply roll over at the first sign of one, doesn't mean they didn't empower or appreciate an ideal insurrection for the "right" reason(s). After all, there would be no founders without insurrection.

    I think you may be confusing insurrection with revolution. They didn't qualify insurrections in Article 1. Consider the verbiage:

    "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

    That's a pretty broad statement. They wanted the laws enforced, and they specifically gave Congress unqualified power to employ arms against both internal and external threats.

    Further, I do not see those assertions as being incompatible. It is possible for one to empower the possibility of insurrection but still be opposed to a specific incarnation of insurrection.

    Again, see the above. They didn't differentiate between incarnations of insurrection. The only distinction that the Insurrection Act makes is between the ability to maintain order and the lack thereof. That's pretty much the distinction between a successful insurrection and a failed one, and I'm pretty sure that distinction doesn't buy you anything.

    As a (possibly poor) analogy of what I'm trying to say, I love the right to free speech, but I don't particularly enjoy what the Westboro Baptist Church does with this right. I don't see my appreciation for the right to free speech as requiring me to agree with everything that is said anymore than I see the founders' empowerment of an ideal insurrection as requiring that they should have supported all insurrections for all reasons.

    And I'd agree, but we draw lines around the 1A as well. You can engage in hateful speech, but you can't incite a riot. The law steps in at the incidence of harm, and again, that's pretty much the distinction between a successful insurrection and a failed one.

    My broader point is that I don't think the tri-corner hat anti-government across the board stuff buys us much. It just makes us all look like extremists to the rest of the folks (the non gun owners like Sallie Soccer-mom) who we have to convince we're not a threat.
     

    2AHokie

    Active Member
    Dec 27, 2012
    663
    District - 9A
    I'm not aware of an important difference between insurrection and revolution. I use the terms interchangeably. If there is an important distinction, you can read my previous post with revolution substituted in every place where insurrection was used. I used the word only because it was in your post I replied to.

    I think you may be confusing insurrection with revolution. They didn't qualify insurrections in Article 1. Consider the verbiage:

    "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

    That's a pretty broad statement. They wanted the laws enforced, and they specifically gave Congress unqualified power to employ arms against both internal and external threats.

    In general, my point is that defending their ideal form of government (which was brand new in Whiskey, Shay's happened under the Articles of Confederation) against an insurrection does not speak to their ability to see that it might eventually become necessary to rise up and replace the government again at some indeterminate point in the future.

    The founders didn't see themselves as evil or oppressive, but they were acutely aware of the possibility that government could go from good to bad.

    The passage of laws outlawing rebellion/insurrection/revolution does nothing to change my opinion on this matter because the writings and reasoning of those that crafted the 2A and the Constitution are clear and plentiful.

    JD-IAFF said:
    Again, see the above. They didn't differentiate between incarnations of insurrection. The only distinction that the Insurrection Act makes is between the ability to maintain order and the lack thereof. That's pretty much the distinction between a successful insurrection and a failed one, and I'm pretty sure that distinction doesn't buy you anything.

    Pardon my attitude, but of course they didn't differentiate. What could the law possibly say, "Insurrection is ok but only in X, Y, and Z circumstances"? The 2A is the statement that revolution is ok and there are many writings to that end. I'm not familiar with the Insurrection Act, but a successful insurrection means that the Insurrection Act would no longer be something you would have to worry about.

    JD-IAFF said:
    And I'd agree, but we draw lines around the 1A as well. You can engage in hateful speech, but you can't incite a riot. The law steps in at the incidence of harm, and again, that's pretty much the distinction between a successful insurrection and a failed one.

    But when the point of the insurrection is to restart/replace/reshape government, the old laws are no impediment or concern. If the cause was not just enough to gather enough support from the public to succeed, then people will have to answer for their actions in their support of it. If it succeeds, the victor writes history and the law.

    JD-IAFF said:
    My broader point is that I don't think the tri-corner hat anti-government across the board stuff buys us much. It just makes us all look like extremists to the rest of the folks (the non gun owners like Sallie Soccer-mom) who we have to convince we're not a threat.

    I'm was never speaking to whether it is constructive or not to point out why we have the 2nd Amendment. I was merely stating my opinion on the intent of the 2A to empower insurrection/rebellion as a way to dispose of tyranny. But, I do agree that "self-defense" is likely to have more traction with a wider audience.

    And I am not calling for revolution either. Just a disclaimer so I don't get added to any more lists. :D
     

    Haides

    Ultimate Member
    Oct 12, 2012
    3,784
    Glen Burnie
    Of course the government is going to pass laws against insurrection and label anything going against it as "treason." It does so in the interest of self preservation- the same reason it wants to disarm us. Government is like a cancer. As long as it exists, it will continue to grow and consume everything around it until only it remains. The tumor must be cut out from time to time; such is the purpose of the 2A.
     

    Brooklyn

    I stand with John Locke.
    Jan 20, 2013
    13,095
    Plan D? Not worth the hassle.
    Of course the government is going to pass laws against insurrection and label anything going against it as "treason." It does so in the interest of self preservation- the same reason it wants to disarm us. Government is like a cancer. As long as it exists, it will continue to grow and consume everything around it until only it remains. The tumor must be cut out from time to time; such is the purpose of the 2A.


    Its very simple:
    Insurrection is a failed revolution whose goals you disagree with.
    A revolution is a successful insurrection that you approve of.

    This is why "shall not be infringed " Is not replaced by " reasonable regulation to make sure we control everything."
    But it does not matter.
    No constitution can constrain Government. The founders knew this and were only buying us time. Only the people can restrain Government, Not the courts. But we can not force them to do so.

    We can only try to make them see the light.
     

    NY Marksman

    Member
    Feb 20, 2013
    32
    To possess a pistol in NY at all, one needs a New York State pistol permit. A carry permit is a separate license.

    You might be thinking of the Mass permitting scheme. They've got like 5 levels, some of which are purchase only, some go up to full concealed carry.

    allow me to clarify in new york in order to purchase a handgun you need a permit for a hand gun, however there are 3 levels of ownership. they are commonly known as (I) home and office, (II) Sportsman/hunting, (III) Full carry
    at the first and lowest level allows you to purchase a handgun, however you can only carry while at the home, at the range or at your office if you are allowed to carry their by the owner of the business or for the job. However while transporting from to and from home/range/office, it must be locked, unloaded and out of reach. the second extends the privilege out to be used while hunting and at competitions. and the third allows you to carry anywhere that is either not restricted on the back of the permit (upstate permits universally contain a restriction from carrying in NYC, though not usually the other way around) or that there is no weapons prohibited sign. further the weapon can never be visible or obvious so you are restricted to only very concealed carry.
    that said none of these get you out of a NICS check, and you cannot actually take possession of any handgun until you have taken a form to the local sheriff's office (after purchase) and had your permit's second card (containing the gun list) updated with that firearms description, make model and serial number with it upon it. this must then be shown to the store to be updated before you can pick up the gun. you also cannot "be in possession" (hold in your hands, have in your glove box or otherwise be in control of) of any firearm not on your permit.
     

    Maestro Pistolero

    Active Member
    Mar 20, 2012
    876
    Thanks for the clarification.

    Besides being a may-issue state, the biggest problem I see for New York, when the time comes to challenge it, is the complete ban for handgun possession by visiting out of state residents. I see no possible way that passes constitutional muster.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Thanks for the clarification.

    Besides being a may-issue state, the biggest problem I see for New York, when the time comes to challenge it, is the complete ban for handgun possession by visiting out of state residents. I see no possible way that passes constitutional muster.

    Curiously NYC will issue to non-residents, but NYS won't. And yes it doesn't pass muster but we need a positive carry ruling before the courts will do anything about it.
     

    Troll

    Member
    Feb 1, 2011
    7
    NYS Carry Permit

    Just to add what has been said. When I got my NYS permit..a long time ago..it was only issued to NYS residents, but could be kept active if you moved out of NY.

    NY supreme court judges authorize the permits in their respective counties. The level of permit you get (home, sport, unrestricted) is largely at the discretion of the judge currently sitting (note that supreme court judges are elected in NYS).

    I'm from upstate NY and the judge at the time signed off on an unrestricted permit. I still have it and my MD address is listed on the permit.

    Its a real kick in the nads coming from NYS and having an unrestricted permit and can't get anything in MD. Like the several hundred others, I am still on hold here, hanging in the balance with Woolard.
     

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