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Second Amendment

Suddenly said:
"Pro 2nd amendment" bias? More like "try to convince people to ignore the first clause of the 2nd Amendment so we can use the federal courts to prevent individual states from enacting weapons regulation" bias. I'm pro 2nd Amendment. The whole thing though, not just certain parts.

It has been argued that the justification clause does not in any way limit or restrict the rights clause, but even if it did, it has been clearly shown that a"well regulated militia" referred to all able-bodied citizens armed with firearms usable for the common defense.
 
DialecticMaterialist said:
That's why Japan, Britain, and France are tyrannies, despite outlawing guns...

Japan, Britian, and France are not tyrannies due solely to the benevolence of their governments. That changes, and they have no recourse.

America, on the other hand, is not a tyranny because the will of the governed is reinforced by a constitution which limits the government and provides for an armed citizenry equiped to depose any such tyranny that may arise.
 
Kodiak said:


Japan, Britian, and France are not tyrannies due solely to the benevolence of their governments. .

They were too busy being tyrants to their neighbors and colonies who didnt have the arms to defend themselves.
 
AmateurScientist said:
Thanks, buddy, even if you did make fun of my Guardian .32 ACP.

Hey! I didn't make fun of it.
IIRC, I stated my displeasure with that caliber, and at the most, referred to it as "ugly"... ;)
 
DialecticMaterialist said:
Amature I wish to first off say the post above was not directed at you, they were directed at the pro-gun fanatics/extremists, as I think you made some fairly good points. I'm sorry about the confusion. However I think in the end your arguments are still unsufficient and your irrelevant.


Irrelevant? No. The issue here is the Second Amendment. It's not "should a civilized society allow its citizens to own guns" in general? Your arguments about the relative lack of guns in other countries is irrelevant, as they all lack a constitutionally protected right to keep and bear arms.


First off you say "guns don't kill people, people do." In a sense you are right, but that misses the point. The point is its a matter of degree, and guns make it far easier to kill a person. That's like saying "terrorists don't kill people: people kill people." "Marxism doesn't fail: people fail."

Ummm....terrorists are people.

A gun left alone has never killed anyone. Despite anti-gun rhetoric and the ridiculous defense used by ignorant teenagers and others who "accidentally" kill their friends or relatives while playing with their daddies' guns, guns do not simply "go off." They discharge because someone pulled their triggers, released their hammers, or dropped them--in each case with a chambered round and with the safety off (although accidental discharges in this last manner are very rare).

Guns are a very convenient way to kill people. So are cars. So are javelins used at track meets. So are tent stakes. So are kitchen skillets.


Secon, all the mentioned countries may still have murder, but much less then the US overall. You can point to rare incidents of violence, but they are exactly that: rare. Like protests in China.

BS. Murder was not invented in the U.S. Gun murders are relatively rare outside the U.S., but outside the U.S. persons simply find other means for accomplishing the same. Violent crime exists everywhere on the planet, and always has, and always will. Humans, like most other predatory and territorial animals, are violent creatures by nature, under the right circumstances. Civilization will never remove certain natural impulses from humans, despite the silly hopeful wishes of so many idealists and peaceniks.


Your main point seems to be that we need guns to balance the government. I maintain such a protection is an illusion and not worth the cost.

We'll never know unless the U.S. exeriences a huge invasion from a foreign invader, or the Government begins attacking its citizens on a wide scale, or factions of the U.S. military attempt a coup, will we? Perhaps the armed portions of the citizenry might play a substantial role in repelling the attack.

My main point is that the Second Amendment was enacted precisely to provide the citizenry a means of protecting the basic liberties and rights guaranteed by the constitution and upon which this nation was founded. Three main threats to such liberties were recognized at the time: 1) foreign invasion; 2) insurrection; and 3) tyrannical use of force against the citizenry by the government (or its military).

Those three threats remain today, just as they have to other societies throughout the history of human civilization. To contend that somehow modern civilization has advanced to the degree that all modern democracies are now benevolent and would never attempt to do its own citizens harm is to be completely ignorant of both ancient and modern history, and/or utterly foolish.

Dare I do it? Mention Nazis or fascists? How do you think they came to power? They did it with the willing cooperation of their countries' citizens, who had been democratically governed immediately before their seizing power. Never mind that the mostly peasant populace of post-revolution Russia willingly embraced communism and its promise of a better life for them. Never mind that the communist government very quickly evolved into totalitarianism and culminated in the most oppressive and murderous regime under Josef Stalin that the modern world has ever seen.

Think that none of those things could ever happen in modern America? Hmmmm.... Who predicted Hitler's phenomenal rise to power and near total domination of continental Europe, both east and west? Who predicted Stalin's suppression of all his opposition by mass murder and exile?

Today America faces the ever-present threat to civil liberties of its own citizens willingly trading them for a sense of greater security. One of the liberties so many of its citizens so often and so passionately argue should be abolished is the right to bear arms. It is perhaps the most important one, however, as an unarmed citizenry is literally defenseless from the three threats enumerated above. Once the citizenry is rendered defenseless, all liberties may be taken away, with or without force.

This sounds extremist and paranoid, I readily admit. Nevertheless, our nation was founded by extremists and radicals. They were rebels. They had every right to be paranoid. They understood far better than we do today why trust in the benevolence of government can be so dangerous and misplaced. Health skepticism and wariness is utterly American and utterly justified after even a cursory look at history.

I'm all for keeping the Second Amendment. Yes, we have to put up with "gun nuts" and extremist private militia groups. Yes, we have to accept that many guns end up in the hands of those who would misuse them for crime. Yes, we have to put up with accidental shootings. You take the good with the bad.

Freedom of the press, for another example of a fundamental liberty, means that the Weekly World News and The National Enquirer can print their ridiculous and patently false stories, and that Larry Flynt can publish Hustler, and that porno mills in Los Angeles can use and abuse young women hoping to make it in Hollywood. You wouldn't seriously argue that those blights mean we should scrap that part of the First Amendment, would you?

Why then, should gun crime and violence be used as justifications for disarming the populace who chooses to be armed? Why should it be used to eviscerate much of the intent of the Second Amendment in the first place, which was to place military weapons in the hands of the citizenry (in the form of federal bans on "assault rifles" and machine guns without special and highly restricted licenses)?

I don't get it. The anti-gun lobby sounds far too much like the flag burning amendment proponents. It simply misses the point of liberties guaranteed by the constitution and why they are so essential to our nation's freedom. It misunderstands or ignores the founders' concerns about factionalism and oppression by and tyranny of the majority.

Even if the majority of Americans ever decides to scrap the right to bear arms, it will be the wrong decision made for the wrong reasons. Spout rhetoric all you want, watch "Bowling for Columbine" until you wear out your DVD, and cry over the innocent kids killed by stray bullets in bad neighborhoods, but those things will never change the sound historical and modern reasons for the enactment and vigilant protection of the Second Amendment and its intended purpose.

AS
 
Wolverine said:


Hey! I didn't make fun of it.
IIRC, I stated my displeasure with that caliber, and at the most, referred to it as "ugly"... ;)

OK. I certainly don't prefer that caliber either, although it's great for concealment in a pocket (now NAA makes it in a slightly larger .380 version).

Ugly? Uglier than a Glock, or any number of other polymer guns? Doubtful. Uglier than my blued West German (circa 1973) Walther PPK/S in a 9 mm kurtz (OK, same as .380)? Absolutely. That's a beautiful gun. It's a work of art and a fine testament to the superiority of German engineering and workmanship in so many manufactured goods. It also shoots like a dream. I love it and hope I never wear it out.

AS
 
AmateurScientist said:


OK. I certainly don't prefer that caliber either, although it's great for concealment in a pocket (now NAA makes it in a slightly larger .380 version).

Ugly? Uglier than a Glock, or any number of other polymer guns? Doubtful. Uglier than my blued West German (circa 1973) Walther PPK/S in a 9 mm kurtz (OK, same as .380)? Absolutely. That's a beautiful gun. It's a work of art and a fine testament to the superiority of German engineering and workmanship in so many manufactured goods. It also shoots like a dream. I love it and hope I never wear it out.

AS

My personal favorite: Ruger SP101 in .38+P
 
DialecticMaterialist said:


Your main point seems to be that we need guns to balance the government. I maintain such a protection is an illusion and not worth the cost. Militias in the past have never been a match for a professional army. Only rarely in history has a militia been strong enough to stand up to an army, and only under extraordinary conditions.


Dont think a well armed public can fight back a powerful army?


Take a look at Iraq. Well armed Iraqis are already annoying the US military enough that politicans are openly discussing pulling back the US involvement.

If every other Palistinian had a gun do you think Israelie military would gave as much control (as little as they do have) over Palistine.
 
Kodiak said:


It has been argued that the justification clause does not in any way limit or restrict the rights clause, but even if it did, it has been clearly shown that a"well regulated militia" referred to all able-bodied citizens armed with firearms usable for the common defense.

Clearly shown? Better go tell the United States Court of Appeals for the Third Circuit:

We note first that however clear the Court's suggestion that the firearm before it lacked the necessary military character, it did not state that such character alone would be sufficient to secure Second Amendment protection. In fact, the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its "possession or use" and militia related activity. Id.; see Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (susceptibility of firearm to military application not determinative), cert. denied, 319 U.S. 770 (1943). Rybar has not demonstrated that his possession of the machine guns had any connection with militia-related activity. Indeed, as noted above, Rybar was a firearms dealer and the transactions in question appear to have been consistent with that business activity.

[73] Nonetheless, Rybar attempts to place himself within the penumbra of membership in the "militia" specified by the Second Amendment by quoting from 10 U.S.C. Section(s) 311(a):

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are . . . citizens of the United States . . . .

[74] Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).

That whole "Everyone is in the militia" argument didn't get very far with that court did it?

We can kick around hundred year old scholars, and try to analogize cases that deal with federal power until we are blue in the face, but the Supreme Court has yet to get to the question. As AS points out, recent gun cases have been decided on issues other than the Second Amendment. We can try to draw parallels, but in the end commerce clause cases are not second amendment cases.

A.S. gets into Lopez and Printz, while those cases do show a curb on federal power, it isn't a very large one. Lopez is mostly relevant as a "sign of change" type case in that the commerce power has some limit. Heck , in the case itself they mention several new deal era cases, most emphatically Wickard v. Filburn, (better known as "that silly wheat case) and clearly state that these are still good law. They do not speak to the second amendment. The best that can be done in that regard is a passing mention in concurring opinion by Justice Thomas in Prinz. Thus you have dicta in a concurring opinion by a justice that I'd hope even conservatives admit isn't exactly their brightest star. It would carry more weight if Scalia or even Renquist would have said it rather than Thomas.
 
John Harrison said:


Which regulation? (You are aware of the multiple regulations that the NRA has supported in the past. Right?)

Bias against regulation in general does not equal opposition to every regulation. The NRA aren't idiots or complete idealouges. They do actively lobby for gun rights, period.




Seem safer? Is it about reality or not? The only responsibility the NRA has is to stick with the facts, not to worry about peoples feelings. :rolleyes:

No, as a political lobbying organization, when the NRA speaks it is only rational to consider their comments as persuasive, rather than informitive. In other words they are going to discuss and describe data in such a way not to inform, but to persuade the listener.

If I want to know about labor unions, I'm going to look suspiciously at data provided by Michael Moore, just as if the NRA tells me about guns, I'm going to be suspicious as well.

When you get into politics that is what happens.
 
Since Miller died and did not show up to argue his case before the Supreme Court, the case was decided by default. Can anyone say for certain that case would not have been decided the other way if Miller had actually presented his case?
 
Kodiak said:


My personal favorite: Ruger SP101 in .38+P

That is a nice gun. I briefly owned a nice factory nickel plated S&W J-frame .38 snubby. It was easy to carry, but I just didn't like the trigger using double action. It was very fatiguing to my finger to shoot at the range, so I never got comfortable with it. I sold it to a friend, who later gave it away.

I really like my Walther, which is comparable in power to my old .38. Of course, yours in a .38+P does have more stopping power.

AS
 
AmateurScientist said:


That is a nice gun. I briefly owned a nice factory nickel plated S&W J-frame .38 snubby. It was easy to carry, but I just didn't like the trigger using double action. It was very fatiguing to my finger to shoot at the range, so I never got comfortable with it. I sold it to a friend, who later gave it away.

I really like my Walther, which is comparable in power to my old .38. Of course, yours in a .38+P does have more stopping power.

AS

If I had the money, my next firearm purchase would be the HK Mark 23 .45 ACP Semi Auto Pistol, but I don't have the necessary $2300.00...
 
xouper said:
Since Miller died and did not show up to argue his case before the Supreme Court, the case was decided by default. Can anyone say for certain that case would not have been decided the other way if Miller had actually presented his case?

Only the named defendant died. His co-defendant was still alive. At that point in time the right to counsel was a different story, with the Gideon case still in the future. The co-defendent could have been there or sent counsel. He didn't.

Appeals are a completely different kettle of fish than a trial. If you do not show up for trial, as a defendant, you still do not lose by default. In most states the case is stayed until you can be brought in by force. In some juristictions there is a trial without a defendant, but the state must still meet their burden.

Default happens only in civil cases.

Miller was not decided by default. The only difference is that Miller and Layton (the co-defendant) did not present an argument. This in practice doesn't mean a whole lot. The Court decides the case based on what they think the law is, not based on which argument they like better. The government's brief in Miller painted a much more restrictive picture than did the court's opinion.

The court found that there must be a relationship between the gun ownership and membership in the militia. Since they right off the bat found that the sawed off shotgun was not the type of weapon used in a militia, they didn't go any further.

The point a brief would have been most helpful with for Miller is w/r/t the finding of law that a sawed off shotgun is not a weapon commonly associated with militia membership. However, if this would have been successful this would have likely meant the court would then move on to decide if anything further must be shown w/r/t a militia. It could have went either way. The court could have gone on to be quite specific that the gun must be owned for purposes of actual state militia membership.

Or, they could have said that only type is important. Nobody knows. All we are left with is a general principle and a finding.

A brief from Miller's side may have changed things, but there is a chance that the changes would have made Miller more restrictive than it currently is.
 
Kodiak said:


If I had the money, my next firearm purchase would be the HK Mark 23 .45 ACP Semi Auto Pistol, but I don't have the necessary $2300.00...

Too big for my tastes. Hell, if you are going to have a shiny new H&K, I'd go for the P2000 in a .40 S&W. 21.87 oz. and its pretty compact.

AS
 
Suddenly: Miller was not decided by default.
To quote the ruling, "''n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''

How is that not a default ruling? They didn't have any evidence to consider because MIller never presented any. If Miller had presented valid evidence that such a shotgun was currently in use by some militias (which he certainly could have had he showed up), then why would the court not have ruled in his favor?

Notice also that the court did not rule that only militias can keep and bear arms. They did not rule that the Second Amendment is a collective right rather than an individual right. They only said that the kind of arms that the people can keep and bear should be the kind used by a militia. How can this not be interpreted as an acknowledgment that the Second Amendment protects individual rights. As AS already pointed out, this ruling would seem to make bans on assault rifles unconstitutional.
 
AmateurScientist:
Freedom of the press, for another example of a fundamental liberty, means that the Weekly World News and The National Enquirer can print their ridiculous and patently false stories, and that Larry Flynt can publish Hustler, and that porno mills in Los Angeles can use and abuse young women hoping to make it in Hollywood. You wouldn't seriously argue that those blights mean we should scrap that part of the First Amendment, would you?
No, but that is because freedom of speech is fundamental to democracy. The freedom to own a particular type of technology is not.
Why then, should gun crime and violence be used as justifications for disarming the populace who chooses to be armed? Why should it be used to eviscerate much of the intent of the Second Amendment in the first place, which was to place military weapons in the hands of the citizenry (in the form of federal bans on "assault rifles" and machine guns without special and highly restricted licenses)?
Because they provide additional reasons why this anachronistic right should be done away with.
I don't get it. The anti-gun lobby sounds far too much like the flag burning amendment proponents. It simply misses the point of liberties guaranteed by the constitution and why they are so essential to our nation's freedom. It misunderstands or ignores the founders' concerns about factionalism and oppression by and tyranny of the majority.
The right to bear arms is not essential to a democracy (or a constitutionally limited republic, before a pedantic comes along). Hell, even the existence of a constitution is not required.
Even if the majority of Americans ever decides to scrap the right to bear arms, it will be the wrong decision made for the wrong reasons. Spout rhetoric all you want, watch "Bowling for Columbine" until you wear out your DVD, and cry over the innocent kids killed by stray bullets in bad neighborhoods, but those things will never change the sound historical and modern reasons for the enactment and vigilant protection of the Second Amendment and its intended purpose.
I can perhaps understand how this right was included in the US Constitution, given how the US had to wrest independence from a colonial power. However, I don't see how you can think there are still "sound modern reasons" for this right. The idea that an armed population could make one whit of difference if the men and women of the military somehow decided to be a tool of oppression against the citizenry, is ludicrous.
 

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