Check out this crack pot...

[Kashmir1008]

Well, not really. That a militia was necessary was a given -

"A well regulated Militia, being necessary to the security of a free State..."

the 2nd Amendment didn't give the States the right to have their own militias - it was written under the assumption that a state with any common sense would already have them.

Regarding the National Guard, many of the founding fathers believed that a "National Guard" or Special Militia, was too close to having a standing Army and they believed that a state or Nation with a standing Army was what would allow the governing body to become tyrannical.

Agreed - my comment should read: 2A guarantees the right to call up a militia. Case in point, WWII where the gov asks citizens to patrol the coastline to protect against invasion.

I also agree with you regarding the Nat. Guard. It is essentailly a State/Fed military unit and thus is not a militia in the sense that the Framers intended. The militias could potentially assist the National Guard in times of crisis but the militia could also serve as protection against tyranny implemented by use of the Guard or other military units.

 

[Llyrin]

Stupid is as stupid does.

I just don't understand people like him. All you have to do is read what the founding fathers wrote in separate papers, or said in speeches, and you will then KNOW that they intended for the PEOPLE to keep and bear arms. What an idiot.

 

[SoMDGuy]

Just a point I think is important: The 2nd Amendment doesn't grant any rights to anyone. It recognizes that the people already have a right to keep and bear arms and protects the right from interference by the government.

And there's where you run into a fundamental disconnect with Those People. Most of us here accept the concept of natural rights, that is, rights inherent in the nature of humanity, regardless of source (God, nature, English common law, what-have-you). The founders agreed, and the concept of natural rights is a critical part of the philosophical infrastructure that supports the Constitution.

The modern academic rejects natural rights, usually in favor of Bentham's Utilitarianism or some other collectivist claptrap, and the whole unwieldy mess of Liberal constitutional revisionism is based on interpreting the document in Utilitarian terms.

Without the acknowledgment of the validity of the natural rights interpretation of the Constitution, it is unlikely we're going to find any common ground with these folks.

 

[kalister1]

"among anyone who knows the constitution which admittedly leaves out at least 3/4 of the members of Congress and probably half the states attorneys general in the country"

He gets some things right.

 

[Llyrin]

"among anyone who knows the constitution which admittedly leaves out at least 3/4 of the members of Congress and probably half the states attorneys general in the country"

He gets some things right.

Well, no one is wrong ALL the time, but he's trying real hard.

 

[raggedman]

Verily, he is getting 5h1t-hammered in the comments!

Deservedly!

 

[thebullpupkid]

Don't blame him, blame the keyboard.

 

[JoeGael]

Where do these people come from?

I don't care what anyone says...the most dangerous opinion is an uninformed one.

 

[ezliving]

Refuting the "Irrefutable"

About a week ago, Robb over at Sharp as a Marble pointed to an op-ed by one Marc Rubin at the Examiner.com website that included this jaw-dropping quote:

In an earlier article about the 2nd amendment I proved beyond a shadow of any doubt that the 2nd amendment has nothing to do with an individual right to own a gun. And the facts are irrefutable.​

Well, me being me, I saw that as a challenge and threw down the gauntlet.

And waited.

And waited.

And finally Sunday afternoon Marc Rubin responded via email:

Dear Kevin

Im(sic) sorry to have to tell you that you are simply wrong.The Constitution is not about what you or I or anyone believes. It is about what is says(sic) and what was intended by the people who wrote it especially when you know exactly what they intended. Nothing more.

The reality of this is that any state can pass any gun law they wish, banning, restricting, taxing, guns ammo, anything, and they do. That is irrefutable. Its(sic) there for all to see. The 2nd amendment does not prevent any state from passing any gun laws they wish. That is irrefutable because these laws are on the books. Plaxico Burress a former NY Giant wide receiver is going to jail because of a mandatory 3 year sentence for carrying a concealed weapon in New York City. The 2nd amendent(sic) is not saving him and his lawyers are not claiming his constitutional rights were violated. And the NRA isnt(sic) coming to his rescue either.

Yes my points are irrefutable because they are based on reality not belief or wish. The reality is the 2nd amendment has not stopped any local governemnt(sic), state, city, town or village from passing any gun law they wish. That doesnt(sic) sound like they think "shall not be infringed" applies to them. And thats(sic) because it doesnt(sic).

Regards
Marc Rubin​

Apparently Mr. Rubin's keyboard doesn't have a functioning apostrophe. And his reality apparently shares very little in common with the one I live in.

Now, for those of you who have been long-standing readers of this blog much of what I will say here will be repetitious, but that's necessary. For those of you who are new or relatively recent, I hope you will bear with my "Überpost" style - this stuff takes more than 1500 words to hammer home, but I provide links to the source materials to allow you to fact-check me and not just take my "authoritative word" on what I assert.

Let us begin:

Im sorry to have to tell you that you are simply wrong.​

Right back atcha, Marc. In fact, to be as wrong as you are requires you to deliberately ignore or deny mountains of evidence. See below.

The Constitution is not about what you or I or anyone believes. It is about what is says and what was intended by the people who wrote it especially when you know exactly what they intended. Nothing more.​

Close, but no cigar! Take, for example, your assertion: "Nothing more." Not so. The Constitution has been amended seventeen times since the ratification of the Bill of Rights. Those changes have altered its meaning from what the Founders originally intended, but other than that, we're in agreement - almost. Your assertion is a statement of what's known as "Original Intent Theory" - but this theory of interpreting the Constitution has been found to be inherently difficult to apply and ultimately unusable.

Obviously, the Founders didn't all hold one homogeneous intent that became each part of the Constitution, instead they wrote law, and in law it isn't the intent that matters, what matters is what the words say and how they are understood at the time they were written. This is called "Original Understanding Theory." There is a third, "Original Public Meaning." All three theories carry the moniker of "Originalism," but Original Understanding is the theory under which law is supposed to function, and it is the one most accepted by "Originalists" on the courts today. What was intended doesn't matter. What it says is. See this article for a decent overview on the topic.

Of course, none of this affects judges who just make it up as they go along. More on this later, too. But the best example I can hold up for the difference between "original intent" and "original understanding" theory is the 1994 "Assault Weapons Ban" that wasn't. We have been told ad nauseam that the intent of that law was to prohibit the manufacture and sale of "semi-automatic assault weapons," itself a rather vague concept. The law did so by prohibiting certain features of these supposedly terrifying weapons: bayonet lugs, collapsible stocks, etc. So the manufacturers looked at what the law actually said and built firearms that met the restrictions. I happen to own one, an AR15 rifle that doesn't have a collapsible stock or a bayonet lug. Works just like any other AR15 ever made, only better, since this one is equipped with a target-quality heavy barrel. I had it custom made right in the middle of the "ban." I purchased a "stripped lower" - the "gun" part that carries the serial number, and shipped it to the manufacturer. About five weeks later my completed rifle was shipped directly to me at work. One hundred percent legal, no muss, no fuss.

So let's say, for the sake of argument, that we're both "originalists." Where we differ is in how each of us interprets how the Second Amendment originally was understood. You claim that it "has nothing to do with an individual right to own a gun." I disagree, and I believe I can prove it - irrefutably, and beyond the shadow of a doubt.

You continue:

The reality of this is that any state can pass any gun law they wish, banning, restricting, taxing, guns ammo, anything, and they do. That is irrefutable. Its there for all to see. The 2nd amendment does not prevent any state from passing any gun laws they wish. That is irrefutable because these laws are on the books.​

Here we agree on one thing - states do pass laws restricting the right to arms. I even agree that some of those restrictions are Constitutionally acceptable, but the overwhelming majority of them are not. Yours is a trite argument, as states have passed a lot of laws that violated the Constitution and they remained on the books for decades before being struck down. Why should gun laws be exempt from this abuse? It's irrefutable that the laws exist, but hardly irrefutable that they don't violate the Constitution.

Plaxico Burress a former NY Giant wide receiver is going to jail because of a mandatory 3 year sentence for carrying a concealed weapon in New York City. The 2nd amendent is not saving him and his lawyers are not claiming his constitutional rights were violated. And the NRA isnt coming to his rescue either.​

The question, again, isn't whether the laws have been passed and are being applied, but whether or not those laws pass Constitutional muster. Just because the NRA isn't fighting for Plaxico Burress's right to carry a concealed weapon without a permit doesn't mean that law is or isn't Constitutional (and you might be surprised to learn that I believe the evidence shows that such laws can be Constitutional - based on Original Understanding theory). That doesn't mean that Plaxico Burress didn't have a right to own the gun he was carrying that day, and that is the topic of this discussion.

Now, let's take on your "irrefutable" article, starting with this jewel:

(J)ust the other day the 9th Circuit Court of Appeals ruled in a case involving Alameda County in California that the 2nd amendment applies to individuals.They were wrong.​

Good to know that you acknowledge that even high court judgescan be wrong. They weren't here, but I'd have to prove that. You, being an "authorized journalist" get to just assert it as irrefutable fact and go on. We'll skip directly to your bold assertion:

"There is no Constitutional right to own a gun.And there never was."​

There's a human right to own weapons suitable for defense of self and property, and the Second Amendment of the Constitution was written to protect that right against violation by government. I assert that, but I have a citation - U.S. v Cruikshank (1876). While the majority in this case erred in their decision, their understanding of the Bill of Rights was flawless:

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, "the scope and application of these amendments are no longer subjects of discussion here." They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes . . . .​

You see, the majority in Cruikshank well understood what the Bill of Rights protected, but they decided those right couldn't be protected for recently emancipated slaves or previously free blacks. That didn't comport with their understanding of "Original Intent" - even though it was the only meaning that could be taken from the words. This is the case that allowed the states to enact whatever gun control laws they wanted, even though the Fourteenth Amendment was ratified in 1868 specifically with the intent of protecting the rights of all citizens. This is called, variously, "making it up," "judicial activism," or (my personal favorite) "Constitutionalizing ones personal preferences." So, in 1876 the Supreme Court named what the Second Amendment protected - "bearing arms for a lawful purpose" - then declared that the states could violate that right without censure (*nudge-nudge, wink-wink*, as long as they did it to the wrong kind of people).


----- There is much more here:

http://smallestminority.blogspot.com/2009/07/refuting-irrefutable.html

 

[GNLaFrance]

Mr. Rubin sent me a reply very much like the one above. Despairing of my ability to persuade such a stranger to reason, I merely suggested he seek counseling for his mental and emotional issues.