Kolbe en banc decision

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  • jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    I will admit that we, as a civil society, must allow some rights to be limited. My right to fire a gun willy-nilly at my neighbors' houses must in fact be limited because by doing so I impede on their rights.

    However, the right to keep and bear arms does not in and of itself impede on anyone's rights. So why should I allow the government to limit the right?

    How does my "keeping and bearing" RPG's, tanks, fighter bombers impede on anyone's rights? Likewise for 30rd magazines, AR-15 government barrel profiles, and full automatic machine guns.

    It's in the government's interest to limit what I keep and bear. I never understood how we can entrust the ability to overthrow a tyrannical government to that very same government.

    And I believe SCOTUS is in error in determining the 2A is not an absolute right. It is in their interest to rule against it.

    What is the basis for SCOTUS to determine that it's not an absolute right? They are WRONG on this (and many other things)
    The SCOTUS has been eroding our rights and making up new ones for decades.


    Sent from my iPhone using Tapatalk

    You have not answered my question about the basis for why the right is an absolute or near absolute one. Since it is a pre-existing right shouldn't you be able to point to some source that has the answer?

    SCOTUS looked at many sources to determine their answer and documented their sources in Heller. If you think they are wrong, file a lawsuit and present your sources to them.
     

    whistlersmother

    Peace through strength
    Jan 29, 2013
    8,933
    Fulton, MD
    You have not answered my question about the basis for why the right is an absolute or near absolute one. Since it is a pre-existing right shouldn't you be able to point to some source that has the answer?

    SCOTUS looked at many sources to determine their answer and documented their sources in Heller. If you think they are wrong, file a lawsuit and present your sources to them.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —

    I submit my right to "keep and bear arms" is among those "certain unalienable Rights" endowed by my Creator. Further, the right to "keep and bear arms", in and of itself, impedes no other person's rights, therefore it is absolute and government may not say otherwise.

    My right to shoot at my neighbor's house must be limited or even denied, and therefore is not absolute, because by doing so, I would impede on his rights.

    Even from a practical manner:

    That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
    ...
    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. —

    How else can men fulfill their duty if the means to do so are limited or removed by the very government they previously instituted to secure their rights?

    It is this "duty" that requires an absolute right to "keep and bear arms".

    SCOTUS is wrong to limit "keep and bear arms". It is in their best interest to be wrong.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    You have not answered my question about the basis for why the right is an absolute or near absolute one. Since it is a pre-existing right shouldn't you be able to point to some source that has the answer?

    Perhaps it would be helpful to know exactly what is meant by an "absolute or near absolute" right.

    Most certainly, the right is not unlimited in scope. A right that is unlimited in scope encompasses everything, becomes a right to do anything and everything. There is no such thing as that.

    So clearly, then the right is limited in scope. Per the Supreme Court, that scope is exactly that which was understood at the time of ratification of the Amendment which protects the right:

    District of Columbia v Heller said:
    Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.


    As applied to this case, what evidence is there that the founding generation didn't understand the right to include owning whatever weaponry one wanted to own? Note that I refer to keep, not bear. After all, the founders relied upon privately owned gunboats, among other privately owned arms, to achieve their ultimate victory over the British. One would have to be an imbecile to believe that those same founders wouldn't believe that the scope of the right included keeping the very things that they relied upon for their victory in the first place, most especially after all their talk about liberty.


    Whatever the scope, we know that the 2nd Amendment's command is crystal clear: the right shall not be infringed. "Infringed" is defined by Sheridan's A Complete Dictionary of the English Language on page 42 as "To violate, to break laws or contracts; to destroy, to hinder." As such, to merely hinder the right is to infringe upon it, so to merely hinder the right, much less outright violate it, is impermissible per a plain reading of the 2nd Amendment's commandment.

    The Supreme Court is not empowered with destruction of the original meaning of the Constitution. If it were so empowered, it would be empowered to grant all powers to itself through mere "interpretation" of its text, thereby rendering null the very document from which it draws its power in the first place. But since the Court is not empowered with destruction of the original meaning of the Constitution, that means the Court must be bound by that meaning.

    And therefore, it is right and proper to proclaim that when the Supreme Court does override the original meaning of the Constitution, it is violating its charter. You can argue that the Court can override it anyway, but to do so is to argue for rule by right of force, not proper Constitutional rule of law.
     
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    pcfixer

    Ultimate Member
    May 24, 2009
    5,943
    Marylandstan
    Perhaps it would be helpful to know exactly what is meant by an "absolute or near absolute" right.

    Most certainly, the right is not unlimited in scope. A right that is unlimited in scope encompasses everything, becomes a right to do anything and everything. There is no such thing as that.

    So clearly, then the right is limited in scope. Per the Supreme Court, that scope is exactly that which was understood at the time of ratification of the Amendment which protects the right:




    As applied to this case, what evidence is there that the founding generation didn't understand the right to include owning whatever weaponry one wanted to own? Note that I refer to keep, not bear. After all, the founders relied upon privately owned gunboats, among other privately owned arms, to achieve their ultimate victory over the British. One would have to be an imbecile to believe that those same founders wouldn't believe that the scope of the right included keeping the very things that they relied upon for their victory in the first place, most especially after all their talk about liberty?


    Whatever the scope, we know that the 2nd Amendment's command is crystal clear: the right shall not be infringed. "Infringed" is defined by Sheridan's A Complete Dictionary of the English Language on page 42 as "To violate, to break laws or contracts; to destroy, to hinder." As such, to merely hinder the right is to infringe upon it, so to merely hinder the right, much less outright violate it, is impermissible per a plain reading of the 2nd Amendment's commandment.

    The Supreme Court is not empowered with destruction of the original meaning of the Constitution. If it were so empowered, it would be empowered to grant all powers to itself through mere "interpretation" of its text, thereby rendering null the very document from which it draws its power in the first place. But since the Court is not empowered with destruction of the original meaning of the Constitution, that means the Court must be bound by that meaning.

    And therefore, it is right and proper to proclaim that when the Supreme Court does override the original meaning of the Constitution, it is violating its charter. You can argue that the Court can override it anyway, but to do so is to argue for rule by right of force, not proper Constitutional rule of law.

    :thumbsup::thumbsup: Great application of rule of law and definition of terms. Thank you!
     

    rbird7282

    Ultimate Member
    MDS Supporter
    Dec 6, 2012
    18,474
    Columbia
    Perhaps it would be helpful to know exactly what is meant by an "absolute or near absolute" right.

    Most certainly, the right is not unlimited in scope. A right that is unlimited in scope encompasses everything, becomes a right to do anything and everything. There is no such thing as that.

    So clearly, then the right is limited in scope. Per the Supreme Court, that scope is exactly that which was understood at the time of ratification of the Amendment which protects the right:




    As applied to this case, what evidence is there that the founding generation didn't understand the right to include owning whatever weaponry one wanted to own? Note that I refer to keep, not bear. After all, the founders relied upon privately owned gunboats, among other privately owned arms, to achieve their ultimate victory over the British. One would have to be an imbecile to believe that those same founders wouldn't believe that the scope of the right included keeping the very things that they relied upon for their victory in the first place, most especially after all their talk about liberty.


    Whatever the scope, we know that the 2nd Amendment's command is crystal clear: the right shall not be infringed. "Infringed" is defined by Sheridan's A Complete Dictionary of the English Language on page 42 as "To violate, to break laws or contracts; to destroy, to hinder." As such, to merely hinder the right is to infringe upon it, so to merely hinder the right, much less outright violate it, is impermissible per a plain reading of the 2nd Amendment's commandment.

    The Supreme Court is not empowered with destruction of the original meaning of the Constitution. If it were so empowered, it would be empowered to grant all powers to itself through mere "interpretation" of its text, thereby rendering null the very document from which it draws its power in the first place. But since the Court is not empowered with destruction of the original meaning of the Constitution, that means the Court must be bound by that meaning.

    And therefore, it is right and proper to proclaim that when the Supreme Court does override the original meaning of the Constitution, it is violating its charter. You can argue that the Court can override it anyway, but to do so is to argue for rule by right of force, not proper Constitutional rule of law.



    Very well stated.


    Sent from my iPad using Tapatalk
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    It is not well stated or a great application of the law. This is because the infringement is conditional upon the scope of the right. If it is not within the scope of the right there is no infringement. If you are going to claim the Supreme Court is destroying the original meaning you should be able to back that statement up with facts.

    Neither the Declaration of Independence, nor gunboats would seem to define the entire scope of the right.

    At the end of Heller they said "Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment , one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879) , our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us."

    It seems to me that SCOTUS has not fully defined the scope of the right. There are issues such as concealed weapons that are not as straight forward as some believe. Be prepared to justify why you think the right is broader than SCOTUS indicates.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,943
    Marylandstan
    What is the basis for SCOTUS to determine that it's not an absolute right? They are WRONG on this (and many other things)
    The SCOTUS has been eroding our rights and making up new ones for decades.

    jcutonilli
    It is not well stated or a great application of the law. This is because the infringement is conditional upon the scope of the right. If it is not within the scope of the right there is no infringement. If you are going to claim the Supreme Court is destroying the original meaning you should be able to back that statement up with facts.

    It seems to me that SCOTUS has not fully defined the scope of the right. There are issues such as concealed weapons that are not as straight forward as some believe. Be prepared to justify why you think the right is broader than SCOTUS indicates.


    Quite possibly true. SCOTUS is not infallible at all.

    http://www.michaelmaharrey.com/constitution-101-the-2nd-amendment-militia-962/

    Many modern legal scholars and political pundits claim that the opening clause of the Second Amendment limits the right to keep and bear arms to those serving in the militia – or the National Guard as we call it today. But rules of construction don’t support this reading. The opening clause serves as a sort of introduction, telling us the “why” behind the “what.” It provides context for the amendment, but it does not define its scope. The second clause of the amendment defines whom the protection from infringement applies to
    – “the right of the people…” All of them, not just a select few.

    The right to keep and bear arms flows from an even deeper philosophical spring – the natural right of self-defense. In his paper, The History of the Second Amendment, legal scholar David Vandercoy traced the right back to Blackstone and English common law.
    Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right.
    The public purpose was resistance to restrain the violence of oppression; the private was self-preservation.*
    Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.
    That said, the existence, preservation and autonomy of the militia was intimately tied to the Second Amendment, and was the driving force behind its inclusion in the Bill of Rights. It was not only intended to preserve an individual right to keep and bear arms, but also to limit government power. It was understood that an armed populace would serve as a check against government encroachments on liberty.

    Also, I'll repost this..
    http://tenthamendmentcenter.com/201...guns-even-if-the-2nd-amendment-never-existed/

    The American founding generation drew much of its legal theory from Blackstone. In his paper, The History of the Second Amendment, legal scholar David Vandercoy traced the right to keep and bear arms back to Blackstone and English common law.
    Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right. The public purpose was resistance to restrain the violence of oppression; the private was self-preservation.* Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.”

    In Blackstone 1:139, he described a “natural right of resistance and self preservation.”
    The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” [Emphasis added]
    Some will read Blackstone’s words and say, “See! ‘Such as are allowed by law,’ and ‘due restrictions.’ They never intended an unlimited right to have any kind of gun you want to.”
    That brings us to the Tenth Amendment. It works together with the Ninth Amendment to explicitly define the limits of federal power.
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Say it again. The supreme court, not the government federal or state has the authority to limit a natural right, and by Blackstone is absolute.
    Because those natural rights are endowed by GOD, our creator.
     
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    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    It is not well stated or a great application of the law. This is because the infringement is conditional upon the scope of the right. If it is not within the scope of the right there is no infringement. If you are going to claim the Supreme Court is destroying the original meaning you should be able to back that statement up with facts.

    Well, it must not have been "well stated" because the above isn't what I said at all. I made no claim that the Supreme Court is destroying the original meaning of the right (but see below). What I did say is that the Supreme Court doesn't have the legitimate power to do so.

    Nor did I say that infringement is not conditional upon the scope of the right. It clearly must be, since otherwise one could claim "infringement" for things that have no relation to the right whatsoever, under the guise of a 2nd Amendment violation.


    No, what I wrote stands for the following:

    1. The Supreme Court does not have the legitimate power to interpret the Constitution in such a way as to destroy its original meaning, since to insist otherwise is to insist that the Court can "interpret" the Constitution to achieve any end at all, including the usurpation of power the Constitution does not grant to the Court in the first place, which is in itself a contradiction since the Constitution is the document from which the Court's power derives in the first place.
    2. The original meaning of the 2nd Amendment's command is clear and does not allow even for hindrance of the right it protects.
    3. The scope of the right to keep logically includes all weaponry, since to insist otherwise is to insist that the founders didn't intend to protect the right to keep the very privately-owned arms they relied upon for their victory over the British in the first place, an imbecilic notion to say the least.


    Neither the Declaration of Independence, nor gunboats would seem to define the entire scope of the right.

    Who would read what I said to say that they define the entire scope of the right?

    No, I said the scope includes those, not that it is limited to them:

    One would have to be an imbecile to believe that those same founders wouldn't believe that the scope of the right included keeping the very things that they relied upon for their victory in the first place, most especially after all their talk about liberty.

    (emphasis not in original)

    While what I stated might not be "well stated" since it's clear you didn't properly read it, your other criticisms of it are not well-founded.


    It seems to me that SCOTUS has not fully defined the scope of the right. There are issues such as concealed weapons that are not as straight forward as some believe. Be prepared to justify why you think the right is broader than SCOTUS indicates.

    SCOTUS indicates (or at least hints) that ownership of machine guns does not fall within the scope of the right to arms. And yet, private ownership of military arms of all kinds is precisely what the founders relied upon in order to secure their victory over the British. Since SCOTUS claimed (correctly, as any other scope would have an arbitrary foundation) that the scope of the right is that which the founding generation understood it to be at the time of the 2nd Amendment's ratification, upon what basis does SCOTUS even entertain the notion that machine guns are not protected by the 2nd Amendment?

    The right is broader than SCOTUS seems to indicate precisely because what they seem to indicate contradicts the scope the founding generation would logically have understood, and SCOTUS gives no historical justification for their indication.


    Regardless, while SCOTUS may have "clean hands" as regards contradicting the original meaning and understanding of the right and the Amendment which protects it, the lower courts most certainly do not. They have approved any and all manner of restrictions (many of which go well beyond mere "hindrances") upon that which is indisputably within the scope of the right, in direct contradiction of the original meaning of the 2nd Amendment's command. The case that is the subject of this thread is a perfect example.
     
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    pcfixer

    Ultimate Member
    May 24, 2009
    5,943
    Marylandstan
    Well, it must not have been "well stated" because the above isn't what I said at all. I made no claim that the Supreme Court is destroying the original meaning of the right (but see below). What I did say is that the Supreme Court doesn't have the legitimate power to do so.

    Nor did I say that infringement is not conditional upon the scope of the right. It clearly must be, since otherwise one could claim "infringement" for things that have no relation to the right whatsoever, under the guise of a 2nd Amendment violation.


    No, what I wrote stands for the following:

    1. The Supreme Court does not have the legitimate power to interpret the Constitution in such a way as to destroy its original meaning, since to insist otherwise is to insist that the Court can "interpret" the Constitution to achieve any end at all, including the usurpation of power the Constitution does not grant to the Court in the first place, which is in itself a contradiction since the Constitution is the document from which the Court's power derives in the first place.
    2. The original meaning of the 2nd Amendment's command is clear and does not allow even for hindrance of the right it protects.
    3. The scope of the right to keep logically includes all weaponry, since to insist otherwise is to insist that the founders didn't intend to protect the right to keep the very privately-owned arms they relied upon for their victory over the British in the first place, an imbecilic notion to say the least.




    Who would read what I said to say that they define the entire scope of the right?

    No, I said the scope includes those, not that it is limited to them:



    (emphasis not in original)

    While what I stated might not be "well stated" since it's clear you didn't properly read it, your other criticisms of it are not well-founded.




    SCOTUS indicates (or at least hints) that ownership of machine guns does not fall within the scope of the right to arms. And yet, private ownership of military arms of all kinds is precisely what the founders relied upon in order to secure their victory over the British. Since SCOTUS claimed (correctly, as any other scope would have an arbitrary foundation) that the scope of the right is that which the founding generation understood it to be at the time of the 2nd Amendment's ratification, upon what basis does SCOTUS even entertain the notion that machine guns are not protected by the 2nd Amendment?

    The right is broader than SCOTUS seems to indicate precisely because what they seem to indicate contradicts the scope the founding generation would logically have understood, and SCOTUS gives no historical justification for their indication.


    Regardless, while SCOTUS may have "clean hands" as regards contradicting the original meaning and understanding of the right and the Amendment which protects it, the lower courts most certainly do not. They have approved any and all manner of restrictions (many of which go well beyond mere "hindrances") upon that which is indisputably within the scope of the right, in direct contradiction of the original meaning of the 2nd Amendment's command.
    :patriot: :thumbsup:

    I think you nailed it. I think to that Sir William Blackstone and John Locke (individual rights are absoulute) would contradict Heller's " Like most rights, the Second Amendment right is not unlimited." This statement and paragraph is most often misapplied and misquoted especially by progressive left faction.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    Well, it must not have been "well stated" because the above isn't what I said at all. I made no claim that the Supreme Court is destroying the original meaning of the right (but see below). What I did say is that the Supreme Court doesn't have the legitimate power to do so.

    Nor did I say that infringement is not conditional upon the scope of the right. It clearly must be, since otherwise one could claim "infringement" for things that have no relation to the right whatsoever, under the guise of a 2nd Amendment violation.


    No, what I wrote stands for the following:

    1. The Supreme Court does not have the legitimate power to interpret the Constitution in such a way as to destroy its original meaning, since to insist otherwise is to insist that the Court can "interpret" the Constitution to achieve any end at all, including the usurpation of power the Constitution does not grant to the Court in the first place, which is in itself a contradiction since the Constitution is the document from which the Court's power derives in the first place.
    2. The original meaning of the 2nd Amendment's command is clear and does not allow even for hindrance of the right it protects.
    3. The scope of the right to keep logically includes all weaponry, since to insist otherwise is to insist that the founders didn't intend to protect the right to keep the very privately-owned arms they relied upon for their victory over the British in the first place, an imbecilic notion to say the least.




    Who would read what I said to say that they define the entire scope of the right?

    No, I said the scope includes those, not that it is limited to them:



    (emphasis not in original)

    While what I stated might not be "well stated" since it's clear you didn't properly read it, your other criticisms of it are not well-founded.




    SCOTUS indicates (or at least hints) that ownership of machine guns does not fall within the scope of the right to arms. And yet, private ownership of military arms of all kinds is precisely what the founders relied upon in order to secure their victory over the British. Since SCOTUS claimed (correctly, as any other scope would have an arbitrary foundation) that the scope of the right is that which the founding generation understood it to be at the time of the 2nd Amendment's ratification, upon what basis does SCOTUS even entertain the notion that machine guns are not protected by the 2nd Amendment?

    The right is broader than SCOTUS seems to indicate precisely because what they seem to indicate contradicts the scope the founding generation would logically have understood, and SCOTUS gives no historical justification for their indication.


    Regardless, while SCOTUS may have "clean hands" as regards contradicting the original meaning and understanding of the right and the Amendment which protects it, the lower courts most certainly do not. They have approved any and all manner of restrictions (many of which go well beyond mere "hindrances") upon that which is indisputably within the scope of the right, in direct contradiction of the original meaning of the 2nd Amendment's command. The case that is the subject of this thread is a perfect example.

    I do understand what you said, but you don't seem to grasp what I am saying.

    While I agree that you did not explicitly state that SCOTUS is destroying the original meaning, it does seem an appropriate inference given what you did say and that there is a difference between what you say the scope is and what SCOTUS says. Additionally other people have said similar things and it was directed towards more people than just you.

    The reason that I am emphasizing the entire scope is that it may change how to look at a particular situation. I agree that you are only looking at part of the scope and that is a problem because there may be other parts that narrow the scope. The part I am referring to are the "dangerous and unusual" weapons that Blackstone (and Heller) referred to.

    While I don't know exactly what that means, my understanding is that one class of weapon that falls into this category are concealable weapons. Your statement that the 2A applies to ALL weapons is clearly false based on Blackstone.

    The problem with machine guns is that SCOTUS cannot definitively state that it is not a "dangerous and unusual" weapon. The record in Heller did not address machine guns nor did it really address what exactly is meant by "dangerous and unusual". All they could decide was that handguns in the home were not "dangerous and unusual".
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I do understand what you said,

    Clearly you don't. See below.


    but you don't seem to grasp what I am saying.

    While I agree that you did not explicitly state that SCOTUS is destroying the original meaning, it does seem an appropriate inference given what you did say and that there is a difference between what you say the scope is and what SCOTUS says.

    Yes, there is a difference, and I call it out below.


    The reason that I am emphasizing the entire scope is that it may change how to look at a particular situation. I agree that you are only looking at part of the scope and that is a problem because there may be other parts that narrow the scope. The part I am referring to are the "dangerous and unusual" weapons that Blackstone (and Heller) referred to.

    Well, if that's the part you're referring to, then you must realize the context under which that limitation arises. It arises from bear. In particular, it arises from the concept of "affray" in which "dangerous and unusual" weapons are borne in public such that they cause fear in the people around them.

    And this is where it becomes clear that you don't really understand what I said. Because I said this:

    Note that I refer to keep, not bear.

    My entire argument was in that context only. But the "dangerous and unusual" discussion arises not from keep, but from bear, something that I agree has a different originally-understood scope.


    While I don't know exactly what that means, my understanding is that one class of weapon that falls into this category are concealable weapons. Your statement that the 2A applies to ALL weapons is clearly false based on Blackstone.

    No, a claim that 2A's protection of bear applies to all weapons is clearly false based on Blackstone. But that is not my claim. My claim is that the protection of keep applies to all weapons. More precisely, that the situation the founders had just come out of was such that it is ludicrous to believe that they would not want to protect private ownership of the very types of weapons they relied upon for their victory over the British, especially after all their talk of liberty. While it's still possible that they did not wish to see such weapons protected, SCOTUS has certainly presented no evidence to that effect that I'm aware of, much less any evidence that would override such a basic and obvious logical conclusion (put another way, to accuse the founders of not wanting to see protection of the weapons they used to win the war is to accuse the founders of irrationality, as if the founders said "gosh, it was really lucky the British didn't ban private ownership of all of those arms we used to defeat them, but they're so scary that we just can't bring ourselves to protect that ownership now even though we wouldn't even be talking about this now without them" :facepalm:).

    Moreover, Blackstone precedes the American Revolution. While it is useful for understanding the foundation of the right to arms as understood by the founders, it is not a sufficient basis for deducing limitations on the right that they believed to be in place, since the reason the founders fought the war of independence in the first place was to free themselves from the tyranny of the English, which clearly must include getting out from underneath any limitations in English law they believed to be invalid.


    The problem with machine guns is that SCOTUS cannot definitively state that it is not a "dangerous and unusual" weapon. The record in Heller did not address machine guns nor did it really address what exactly is meant by "dangerous and unusual". All they could decide was that handguns in the home were not "dangerous and unusual".

    I agree, what SCOTUS actually explicitly decided was very limited indeed. Nevertheless, the dicta is relatively clear with respect to machine guns (more precisely, "weapons that are most useful in military service"), going so far as to claim that the fit between the protected right and the prefatory clause's announced purpose can be so loose as to make the protected right arbitrarily close to wholly unsuitable for the prefatory clause's announced purpose, thus justifying a claim that the 2nd Amendment doesn't prohibit bans on military weapons such as machine guns. It's among the worst kind of legal sophistry that I've seen, most especially when it's said in the very same decision that says that the scope of the right is that which was originally understood at the time of the 2nd Amendment's ratification. One doesn't announce a purpose for something in a foundational document if one doesn't intend that something to always be at least sufficient for that purpose, but that is exactly what SCOTUS is essentially claiming the founders did. What kind of imbecile would believe that of the founders?!?
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,473
    Clearly you don't. See below.




    Yes, there is a difference, and I call it out below.




    Well, if that's the part you're referring to, then you must realize the context under which that limitation arises. It arises from bear. In particular, it arises from the concept of "affray" in which "dangerous and unusual" weapons are borne in public such that they cause fear in the people around them.

    And this is where it becomes clear that you don't really understand what I said. Because I said this:



    My entire argument was in that context only. But the "dangerous and unusual" discussion arises not from keep, but from bear, something that I agree has a different originally-understood scope.




    No, a claim that 2A's protection of bear applies to all weapons is clearly false based on Blackstone. But that is not my claim. My claim is that the protection of keep applies to all weapons. More precisely, that the situation the founders had just come out of was such that it is ludicrous to believe that they would not want to protect private ownership of the very types of weapons they relied upon for their victory over the British, especially after all their talk of liberty. While it's still possible that they did not wish to see such weapons protected, SCOTUS has certainly presented no evidence to that effect that I'm aware of, much less any evidence that would override such a basic and obvious logical conclusion (put another way, to accuse the founders of not wanting to see protection of the weapons they used to win the war is to accuse the founders of irrationality, as if the founders said "gosh, it was really lucky the British didn't ban private ownership of all of those arms we used to defeat them, but they're so scary that we just can't bring ourselves to protect that ownership now even though we wouldn't even be talking about this now without them" :facepalm:).

    Moreover, Blackstone precedes the American Revolution. While it is useful for understanding the foundation of the right to arms as understood by the founders, it is not a sufficient basis for deducing limitations on the right that they believed to be in place, since the reason the founders fought the war of independence in the first place was to free themselves from the tyranny of the English, which clearly must include getting out from underneath any limitations in English law they believed to be invalid.




    I agree, what SCOTUS actually explicitly decided was very limited indeed. Nevertheless, the dicta is relatively clear with respect to machine guns (more precisely, "weapons that are most useful in military service"), going so far as to claim that the fit between the protected right and the prefatory clause's announced purpose can be so loose as to make the protected right arbitrarily close to wholly unsuitable for the prefatory clause's announced purpose, thus justifying a claim that the 2nd Amendment doesn't prohibit bans on military weapons such as machine guns. It's among the worst kind of legal sophistry that I've seen, most especially when it's said in the very same decision that says that the scope of the right is that which was originally understood at the time of the 2nd Amendment's ratification. One doesn't announce a purpose for something in a foundational document if one doesn't intend that something to always be at least sufficient for that purpose, but that is exactly what SCOTUS is essentially claiming the founders did. What kind of imbecile would believe that of the founders?!?

    I understand that you want to continue to make a straw man argument. I do understand you want to ignore the bearing part of the scope. The 2A is about keeping AND bearing arms. The reason you keep something is to use (bear) it. If there is no legitimate way to use something why should you be able to keep it? This is rationale behind the historic prohibition on concealed carry, there was no legitimate reason to do it.
     

    Southwest Chuck

    A Calguns Interloper.. ;)
    Jul 21, 2011
    386
    CA
    Clearly you don't. See below.




    Yes, there is a difference, and I call it out below.




    Well, if that's the part you're referring to, then you must realize the context under which that limitation arises. It arises from bear. In particular, it arises from the concept of "affray" in which "dangerous and unusual" weapons are borne in public such that they cause fear in the people around them.

    And this is where it becomes clear that you don't really understand what I said. Because I said this:



    My entire argument was in that context only. But the "dangerous and unusual" discussion arises not from keep, but from bear, something that I agree has a different originally-understood scope.




    No, a claim that 2A's protection of bear applies to all weapons is clearly false based on Blackstone. But that is not my claim. My claim is that the protection of keep applies to all weapons. More precisely, that the situation the founders had just come out of was such that it is ludicrous to believe that they would not want to protect private ownership of the very types of weapons they relied upon for their victory over the British, especially after all their talk of liberty. While it's still possible that they did not wish to see such weapons protected, SCOTUS has certainly presented no evidence to that effect that I'm aware of, much less any evidence that would override such a basic and obvious logical conclusion (put another way, to accuse the founders of not wanting to see protection of the weapons they used to win the war is to accuse the founders of irrationality, as if the founders said "gosh, it was really lucky the British didn't ban private ownership of all of those arms we used to defeat them, but they're so scary that we just can't bring ourselves to protect that ownership now even though we wouldn't even be talking about this now without them" :facepalm:).

    Moreover, Blackstone precedes the American Revolution. While it is useful for understanding the foundation of the right to arms as understood by the founders, it is not a sufficient basis for deducing limitations on the right that they believed to be in place, since the reason the founders fought the war of independence in the first place was to free themselves from the tyranny of the English, which clearly must include getting out from underneath any limitations in English law they believed to be invalid.




    I agree, what SCOTUS actually explicitly decided was very limited indeed. Nevertheless, the dicta is relatively clear with respect to machine guns (more precisely, "weapons that are most useful in military service"), going so far as to claim that the fit between the protected right and the prefatory clause's announced purpose can be so loose as to make the protected right arbitrarily close to wholly unsuitable for the prefatory clause's announced purpose, thus justifying a claim that the 2nd Amendment doesn't prohibit bans on military weapons such as machine guns. It's among the worst kind of legal sophistry that I've seen, most especially when it's said in the very same decision that says that the scope of the right is that which was originally understood at the time of the 2nd Amendment's ratification. One doesn't announce a purpose for something in a foundational document if one doesn't intend that something to always be at least sufficient for that purpose, but that is exactly what SCOTUS is essentially claiming the founders did. What kind of imbecile would believe that of the founders?!?

    Take your pick, KC ..... :innocent0

    lQ_w0pvjQylqOqPXqfNwL3tfb_HdBe0ih3URH3GnsJZ9hIX3BqiuM_l3R41NBB6UCKlARpYcJbv_66YVW5qvCcDmZjEM2OFI0Q=s0-d-e1-ft


    Always trying to be of service Sir !

    :D
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I understand that you want to continue to make a straw man argument.

    It's not a straw man argument. The argument is about the contours of the right that the 2nd Amendment protects.


    I do understand you want to ignore the bearing part of the scope. The 2A is about keeping AND bearing arms.

    Yes, it is. But that doesn't mean that the arms which are protected are only those for which protection of both keep and bear apply. Which is to say, that doesn't automatically mean that the scope of "keep" is the same as the scope of "bear".

    For instance, even if "keep" of gunboats is, per the logic I supplied previously, protected, "bear" of them wouldn't necessarily be (if it's even meaningful to apply "bear" to gunboats at all). Keep of cannons would also be protected by the same logic, but "bear" might well not be, given the basis of "affray".


    The reason you keep something is to use (bear) it. If there is no legitimate way to use something why should you be able to keep it?

    No, this is quite wrong. You don't keep something (especially military arms) only for the purpose of using it (i.e, with intent to use it irrespective of other factors), you keep it in case you have to use it. This is a crucial, argument-killing difference.

    The protection of "bear" is in place so that people can protect themselves and others in peace time. More precisely, it's so that they will not be prevented from timely access to the means to defend themselves and others in peace time, particularly in public. The protection of "keep" is in place so that the people will have the means to defend themselves in both peacetime (through "bear") and what amounts to a time of war, whether that war be against a foreign power or against a domestic one. In the case of a war against a foreign power, there is no need for protection of the right to bear since the government in that case will clearly not object to the use of the weapons in question (one presumes that it would invoke its militia regulatory powers in that case in order to ensure that the weapons are used in a controlled fashion). In the case of a war against a domestic power, it is meaningless to even talk about protection of "bear", since a domestic government has gone tyrannical in that case anyway. The purpose of the protection of "keep" of military weapons and others that are not protected for "bear" is so that the people are not prevented from having the means to preserve the security of a free state.


    This is rationale behind the historic prohibition on concealed carry, there was no legitimate reason to do it.

    Yes, and that is where your whole analysis is incorrect. There is a legitimate reason to protect "keep" of weapons that don't also have protection of "bear", and the 2nd Amendment even goes as far as to state it: to ensure that the people are not prevented from having the means to preserve the security of a free state. The people cannot fight with what they don't have, and failure to protect ownership of that which is needed to preserve the security of a free state is a mistake a free people get to make only once.


    The founders had just come out of a shooting war in which privately owned weapons of all kinds were instrumental in their victory. Who would believe that those same founders would then understand the scope of the right in such a way that ownership of those very weapons would not be protected, even if they understood the scope of "bear" to not extend to those weapons? Such a belief is tantamount to belief that the founders were morons, cowards, or both, too stupid ("duhhrrr ... I wonder if we should protect those weapons that just saved our butts ...") or cowardly ("golly gee I sure am glad we had those weapons, but someone might get hurt if we protect private ownership of them!") to protect the very weapons that won them the war, most especially given the protection's stated purpose! It is arrogant presumption to insist that the weapons protected for "keep" must be limited to those protected for "bear" (those protected for "bear" must clearly also be protected for "keep", since one cannot "bear" what one does not have, and thus the weapons protected for "keep" are logically a superset of those protected for "bear"). The above logic demands that much more than mere presumption be supplied in order to sustain such an assertion.

    Only substantial and clear evidence that the founders and their contemporaries believed, after the American Revolution (why? Because an experience such as the American Revolution could easily have influenced their thinking on the subject), that only the weapons one had a right to "bear" would be the ones that one had a right to "keep", will do. Blackstone doesn't cut it for this.
     
    Last edited:

    MULE-JK

    Stiff Member
    Sep 7, 2013
    1,852
    Mt. Airy
    It's not a straw man argument. The argument is about the contours of the right that the 2nd Amendment protects.




    Yes, it is. But that doesn't mean that the arms which are protected are only those for which protection of both keep and bear apply. Which is to say, that doesn't automatically mean that the scope of "keep" is the same as the scope of "bear".

    For instance, even if "keep" of gunboats is, per the logic I supplied previously, protected, "bear" of them wouldn't necessarily be (if it's even meaningful to apply "bear" to gunboats at all). Keep of cannons would also be protected by the same logic, but "bear" might well not be, given the basis of "affray".




    No, this is quite wrong. You don't keep something (especially military arms) only for the purpose of using it (i.e, with intent to use it irrespective of other factors), you keep it in case you have to use it. This is a crucial, argument-killing difference.

    The protection of "bear" is in place so that people can protect themselves and others in peace time. More precisely, it's so that they will not be prevented from timely access to the means to defend themselves and others in peace time, particularly in public. The protection of "keep" is in place so that the people will have the means to defend themselves in both peacetime (through "bear") and what amounts to a time of war, whether that war be against a foreign power or against a domestic one. In the case of a war against a foreign power, there is no need for protection of the right to bear since the government in that case will clearly not object to the use of the weapons in question (one presumes that it would invoke its militia regulatory powers in that case in order to ensure that the weapons are used in a controlled fashion). In the case of a war against a domestic power, it is meaningless to even talk about protection of "bear", since a domestic government has gone tyrannical in that case anyway. The purpose of the protection of "keep" of military weapons and others that are not protected for "bear" is so that the people are not prevented from having the means to preserve the security of a free state.




    Yes, and that is where your whole analysis is incorrect. There is a legitimate reason to protect "keep" of weapons that don't also have protection of "bear", and the 2nd Amendment even goes as far as to state it: to ensure that the people are not prevented from having the means to preserve the security of a free state. The people cannot fight with what they don't have, and failure to protect ownership of that which is needed to preserve the security of a free state is a mistake a free people get to make only once.


    The founders had just come out of a shooting war in which privately owned weapons of all kinds were instrumental in their victory. Who would believe that those same founders would then understand the scope of the right in such a way that ownership of those very weapons would not be protected, even if they understood the scope of "bear" to not extend to those weapons? Such a belief is tantamount to belief that the founders were morons, cowards, or both, too stupid ("duhhrrr ... I wonder if we should protect those weapons that just saved our butts ...") or cowardly ("golly gee I sure am glad we had those weapons, but someone might get hurt if we protect private ownership of them!") to protect the very weapons that won them the war, most especially given the protection's stated purpose! It is arrogant presumption to insist that the weapons protected for "keep" must be limited to those protected for "bear" (those protected for "bear" must clearly also be protected for "keep", since one cannot "bear" what one does not have, and thus the weapons protected for "keep" are logically a superset of those protected for "bear"). The above logic demands that much more than mere presumption be supplied in order to sustain such an assertion.

    Only substantial and clear evidence that the founders and their contemporaries believed, after the American Revolution (why? Because an experience such as the American Revolution could easily have influenced their thinking on the subject), that only the weapons one had a right to "bear" would be the ones that one had a right to "keep", will do. Blackstone doesn't cut it for this.


    Let me make this simple. The reason they put keep AND bear in there was to make sure an over reaching government couldn't state that owning is ok and bearing is not. You cannot separate keep and bear when the statement is keep AND bear. There is no keep and SOMETIMES bear no matter how many words you use to try and deflect. The whole militia part is to further expand that not only can you keep and bear, you can organize a well regulated militia to fight. None of the 2nd is to limit the people. It is to clarify that limitation is unacceptable. The militia is supplied and manned by citizens with whatever weapons/supplies are necessary, i.e well regulated. The militia is made up of citizens that keep and bear arms whenever they see fit, not when the government says it's ok. It does not say that any one part is necessary for the other. It does not say that the government can tell you when, where or why you may exercise these rights. To do so would be counterintuitive to the entire amendment.

    Concisely: You cannot have a militia if you are unable to bear arms. You cannot bear arms if you cannot keep them. Militias are not necessary to keep and bear arms, but to have a militia you must be able to keep and bear arms. There is no point to keep arms if you cannot bear them. It's that simple.

    YOU MAY KEEP THE PEN, BUT YOU MAY NOT WRITE!!!!

    YOU CAN HAVE A VOICE, BUT YOU MAY NOT USE IT!!!!

    YOU MAY CAST A VOTE, BUT WE MAY NOT COUNT IT!!!

    YOU MAY HAVE A GUN, BUT YOU CANNOT LEAVE YOUR HOUSE WITH IT!!!!

    So foolish all that sounds.

    I love the part where you say(I'm paraphrasing)"the bearing part can be limited, because by the time you're fighting it doesn't matter what the government says". :lol2: Yeah that sounds totally like what the Framers were going for. :lol2::lol2::lol2:
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    Let me make this simple. The reason they put keep AND bear in there was to make sure an over reaching government couldn't state that owning is ok and bearing is not.

    Agreed.


    You cannot separate keep and bear when the statement is keep AND bear.

    I agree with this as well.


    There is no keep and SOMETIMES bear no matter how many words you use to try and deflect.

    Okay. How do you "bear" artillery?

    Or are you going to insist that the militia be handicapped, limited only to the weapons that they can personally carry and individually use, when their duty is to preserve the security of a free state? Somehow, from what you say below, I suspect you're not going to insist on any such thing. But clarification would be good to have.


    The whole militia part is to further expand that not only can you keep and bear, you can organize a well regulated militia to fight.

    I agree, but that's not all it's for. It's to make it clear that the weapons that are protected are, at a minimum, those that are necessary for the militia to be able to succeed in its duty.


    None of the 2nd is to limit the people. It is to clarify that limitation is unacceptable.

    I don't disagree at all.

    Nevertheless, the right that the 2nd Amendment protects does not necessarily encompass any and all things that can be used as weapons. I agree in principle that it should protect all weapons of any kind, since it simply says "arms", and it should protect "bear" of all weapons that can be borne.

    But we're not talking about what the right should encompass. We're talking about what the founders believed it encompassed.


    The militia is supplied and manned by citizens with whatever weapons/supplies are necessary, i.e well regulated.

    Yes, I completely agree, particularly with the "whatever weapons/supplies are necessary" part. That's the crux of the issue, and exactly why the militia clause is important: the militia has a duty, and it needs weapons of any/all kinds to fulfill that duty, and those weapons are not limited to those that individuals can carry.


    The militia is made up of citizens that keep and bear arms whenever they see fit, not when the government says it's ok.

    Then where does the concept of "affray" fit into the picture, if at all?

    Maybe the founders ditched the concept entirely. I have no idea about that. But even if they didn't, that would not limit the right to keep arms. And that's my point. The right to keep is not limited by the right to bear.


    It does not say that any one part is necessary for the other.

    No, it doesn't, but clearly, you can't exercise a right to bear what you don't have a right to keep, so the right to keep must logically apply to a superset of what the right to bear does. But note that a "superset" can also mean that the sets are the same.


    It does not say that the government can tell you when, where or why you may exercise these rights. To do so would be counterintuitive to the entire amendment.

    In principle, I agree. But again, what matters is what the founders thought. My only point is that the founders logically would have insisted on protecting keep of those arms that many/most would think the right to bear would be inapplicable to. But more importantly, even if the founders thought the right to bear was limited in some fashion, that doesn't automatically translate to those limitations applying to the right to keep.


    Concisely: You cannot have a militia if you are unable to bear arms. You cannot bear arms if you cannot keep them. Militias are not necessary to keep and bear arms, but to have a militia you must be able to keep and bear arms. There is no point to keep arms if you cannot bear them. It's that simple.

    While true in a strict fashion, keep in mind that the purpose of protecting the right is so that the people may be prepared to deal with whatever situation the arms in question are appropriate to. The purpose of protecting the right to bear in public is so that people will have the means to immediately defend themselves while in public. To what peacetime threat would one respond to with artillery in public?

    But threats do not exist only in peacetime, and that's where the right to keep comes into its own. The people must be able to respond to wartime threats as well with weaponry that might not be protected by the right to bear. Artillery is a possible example. I've no idea if the founders believed the right to bear to encompasses artillery, but if they didn't then they still almost certainly believed the right to keep encompasses it. Why? Because the people must be able to use such weaponry if the situation calls for it. And a domestic government gone tyrannical most certainly calls for it.


    I love the part where you say(I'm paraphrasing)"the bearing part can be limited, because by the time you're fighting it doesn't matter what the government says". :lol2: Yeah that sounds totally like what the Framers were going for. :lol2::lol2::lol2:

    For you to paraphrase it like that means I must have said it very, very badly. That's not my point at all.

    Let me put it this way. The 2nd Amendment protects the right to keep and the right to bear. Where, exactly, is the protection of the right to bear when the government has gone tyrannical? Right. That protection doesn't exist under those circumstances. But nevertheless, that doesn't matter, because at that point, the people have the duty to bear arms against the rogue government anyway, no matter whether or not the right is "protected" in some fashion, and no matter whether or not it was previously understood that the people have the right to bear those arms in the first place.

    But the right to keep is a different matter altogether. You cannot bear what you cannot keep, cannot fight with that which you don't have. Without the right to keep, the people will have nothing to respond to a tyrannical government with. And if the right to keep is limited to that which the right to bear covers, then the people will be handicapped (perhaps fatally so) if the right to bear doesn't cover all weapons, most especially those that cannot be carried by individuals.


    I suppose another way of saying it is that the right to bear covers, at a minimum (because I agree that in principle, it should cover all weapons), those weapons the militia requires for peacetime duties, but the right to keep clearly must cover those weapons the militia requires for wartime duties (whether that war be against a foreign power or a domestic one). Bear cannot limit keep, even if bear is itself limited.

    Even if the founders understood the right to bear to have limits in terms of the weapons it covers, those limits do not also apply to keep unless they separately understood those limits to apply to keep as well, precisely because the weapons the people need to be able to keep are a superset of the weapons they'd need to be able to bear in peacetime (which may mean that they're the same set, but not because bear would limit keep, but because keep would extend bear).
     

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