2nd Amendment & other Amendments NOT Absolute

[legaleagle_45]

Henry wrote:

There is also the concept of "disability." This can be presumed for those who have not reached the age of majority. For others (mental incompetence or inmate) it is only applied after due process and only for the term of the disability (which may be permanent).

Indeed, a felony conviction at common law effectuated a "civil death". This concept carries through to this day wherein felons can be constitutionally prohibited from voting. From a pure constitutional standpoint, I see no barriers to prohibiting those convicted of a felony from ever being able to have the RKBA. Now from a policy standpoint, it is clear we can allow those convicted of a felony to vote and to have the RKBA.... but it is purely a policy choice and not a constitutional mandate.

 

[Fisherman_48768]

I just watched the blather video, made me want to puke. What I saw was the liberals saying they were the only ones right the rest of us couldn't read or understand the 2nd Amendment. Noticed the chief lumped shotguns in with his definition of assault weapons and handguns, this is insight into the true agenda of the anti's?

 

[ConstitutionCowboy]

...so then you're saying that DC's gun ban is constitutional. DC residents have the right to keep and bear arms, they just can't get to them in DC?

You're leaving out the fact that those in prison committed a crime, were found guilty upon due process, and sentenced to prison. 'Taint so for the citizens of DC - or any of the rest of us. The DC residents and the rest of us are not in prison. The law abiding DC residents can't get to or have arms due to unconstitutional law.

Even our "unalienable" rights to life, liberty, and the pursuit of happiness aren't absolute. They can be forfeited with due process of law.

You still get to exercise those rights - if you make it out of prison. But you are right. Those rights are not absolute. For example, if raping young boys makes you happy, I'd say there is a good reason the right to happiness isn't absolute. There is no problem with the Right Keep and Bear Arms, though. It is harmless.

Woody

 

[ConstitutionCowboy]

Indeed, a felony conviction at common law effectuated a "civil death". This concept carries through to this day wherein felons can be constitutionally prohibited from voting. From a pure constitutional standpoint, I see no barriers to prohibiting those convicted of a felony from ever being able to have the RKBA. Now from a policy standpoint, it is clear we can allow those convicted of a felony to vote and to have the RKBA.... but it is purely a policy choice and not a constitutional mandate.

Other than the mandates in the Constitution, the voting issues are at the state level. As for the RKBA, aside from the Second Amendment's prohibition on government infringing upon the RKBA, there has been no power granted to strip anyone of their right to keep and bear arms in the Constitution. Can't do it, can't be done, 'taint right, don't even ask.

Woody

 

[legaleagle_45]

Woody

Can't do it, can't be done, 'taint right, don't even ask.

Can do it, can be done, tis legit, just ask SCOTUS

We have done this before, I think.

 

[Matt King]

If the weapon has a military use, then government cannot regulate it.

Lets take it to the extreme. Do you consider nukes protected under the Constitution?

 

[El Tejon]

"Arms"=weapons that an individual can carry.

The Supreme Court of North Carolina gives a good opinion/discussion of what are protected arms. I'll get the cite when I get back to Lafayette.

 

[ConstitutionCowboy]

"Arms"=weapons that an individual can carry.

That's not the definition of arms today nor back when the Constitution was written.

Johnson's Dictionary, Circa 1755, says "Arms" are: Weapons of offence, or armour of defence.

Noah Webster's American Dictionary of the English Language, 1828: Weapons of offense, or armor for defense and protection of the body.

Webster's 1913 Dictionary: Instruments or weapons of offense or defense.

Merriam-Webster Online Dictionary, Current: a means (as a weapon) of offense or defense; ...

WorldNet Dictionary, Current: weapons considered collectively.

Doesn't much matter what the SCOTUS says it is. SCOTUS doesn't have the authority to alter anything in the Constitution. That said, you know what they say about wishing in one hand and keeping a roll of toilet paper handy for the other...

Woody

 

[Deanimator]

2.) The current "Will of the people" over-rides the Constitution.

An interesting argument.

Presumably if the current will of the people of Alabama favored slavery, that would "over-ride" the 13th Amendment...

 

[El Tejon]

ConstitutionCowboy, perhaps, but that was not Miller's definition. Miller's definition was a weapon in common usage that individuals could bring with them.

Matt, the citation I was thinking of is State v. Kerner, 107 S.E. 222, 224 (N.C. 1921) (defining constitutionally protected arms).

 

[ConstitutionCowboy]

ConstitutionCowboy, perhaps, but that was not Miller's definition. Miller's definition was a weapon in common usage that individuals could bring with them.

And it was the Court amending the Constitution by altering the meaning of a word.

Woody

This crap will continue until the Court stops allowing itself to be misused as a legislative branch of government, or as an alternative to amending the Constitution. B.E. Wood

 

[Megistopoda]

The comments by DC officials (including the mayor) to the effect that they must keep their gun ban because it's what the majority wants.....this shows that they either don't know how our system works, or don't care, or arent' willing to acknowledge the full scope of the situation.

I have always looked at the legislative and judicial branches as such:

The legislative branch creates laws, and because the legislature is representative via democratic process, it creates laws based on the wishes of the people (i.e. the majority). In this context, the DC officials are not out-of-bounds in highlighting the fact (almost certainly a notion) that DC residents want a handgun ban and that their wishes must be taken into account. As an aside, I'd like to see a bit more "constitutional sense" and restraint by lawmakers who go on writing, supporting, and enacting blatantly unconstitutional laws. Usually it seems, these are justified by misinformation designed to woo the ignorant, and are effectively pursued on the basis of "how much they can get away with." In doing so they are being dishonest, they are wasting their time, and are wasting my precious tax dollars...

The judicial branch examines laws and policy in light of the constitution. In other words, the judiciary provides oversight to ensure that laws created are just and constitutional. The wonderful thing about the bill of rights is that it (in theory) limits the laws that the legislature can make. The judicial branch in effect then protects the rights of people from unconstitutional laws, even if and maybe especially when those laws are the will of the majority. In this context, the DC officials are out of bounds by NOT acknowledging that the 2A MIGHT or probably protect individual rights to bear arms...and if it does, then even a supposedly popular law like the handgun ban is illegal and not allowed....as Silberman said "it is not open to the District to ban them."

In brief, the legislature advances the will of the majority, and the judiciary protects the rights of the minority (usually from the wishes of the majority).

 

[Matt King]

ConstitutionCowboy: Do you consider Nukes protected by the Constitution?

 

[Robert Hairless]

El Tejon, Henry Bowman, legaleeagle 45, and others ....

When it is said that "If the weapon has a military use, then government cannot regulate it," is it your opinion that the weapon:

1. Must be in current use by some branch of the military;
   
2. Was used by some branch of the military at some time in the past even if not currently;
   
3. Is not and never has been used by some branch of the military but could be.

The field full of flowers in which my mind is playing is that any firearm could be used by the military whether or not it is being used, has been used, or perhaps even might be used. That could be opens the door to anything. I think that the door belongs open that widely, but nobody asked for my opinion so I ask for yours.

Oh. And must it be the U.S. military or will any military suffice?

I assume that Miller relies on an interpretation of the Second Amendment in which the introductory phrase about the militia becomes the controlling restriction on what follows and that the restriction is made narrow by equating the word "militia" with the word "military," which is invalid. Anyhow any object that might be used as a weapon probably has been used by some participants in some conflicts.

 

[ConstitutionCowboy]

Matt King

What about them?

Woody

 

[El Tejon]

Robert, that language is me paraphrasing the Supreme Court in Miller. The Supreme Court language is "some reasonable relationship to the preservation or efficiency of a well regulated militia." (Miller at 178).

I argue that constitutional rights should be given a very wide expansive reading, thus I would select option #3 (which is good news for THR as THR chatters incessantly about weapons never adopted by the military. XM8s for all!).

 

[Matt King]

Would you consider them protected under the Second Amendment? It's an extreme case, I am just wondering where you would draw the line.

 

[andy28277]

The Founders realized the "Will of the People" (i.e. a pure democracy) could be just a dangerous and oppressive as a monarchy. This "Will of the People" argument by D.C. is just silly.

The founders established a Republic. The purpose of a Republic is to protect the RIGHTS of a minority from the majority.

Therefore, even if the vast majority of Americans wanted to ban books, they could not do so if only one single American stood up against book banning based on the 1st Amendment. These rights are proteceted through a system of checks and balances through the three branches of government.

This is how is it SUPPOSED to work, but unfortunately judges and congress all too often turn a blind eye to the rule of law due to their own personal interests or from pressure by special interests.

My take on SCOTUS hearing the D.C. gun case is that 1) it has already been decided or they would not be hearing it and 2) the reason they are hearing it now is that there is an expectation of 8 years of Billary, and now is the time to rule in favor of the 2A so Billary and the Democratic congress don't totally obliterate our gun rights. It is special interests working in the favor of gun rights.

Mark my words - the powers behind the scenes have already made this decision, and my guess is in favor of the 2A for the above reasons.

 

[ConstitutionCowboy]

Matt,

An atomic bomb is a weapon is an arm. Personally, I don't want one nor do I particularly want one in my neighborhood, but until the Second Amendment is amended to allow some infringement, they are covered by the Second Amendment.

As I stated, I don't want one, but I'll never relinquish my right to have one. There are rogues and rogue nations out there armed with nukes, and someday I might need a nuke to fend them off. Our own government is one step ahead of us, better armed because they have nukes and don't allow us to have them.

Woody

 

[Matt King]

Wow. That's a pretty extreme reading of the Second Amendment.

 

[gc70]

Wow. That's a pretty extreme reading of the Second Amendment.

No, that reflects an extreme development in arms since the adoption of the Second Amendment.

 

[ConstitutionCowboy]

No, that reflects an extreme development in arms since the adoption of the Second Amendment.

That's correct. Those arms are covered by the Second Amendment as a consequence of their invention, not an "extreme reading" of the amendment.

Woody

 

[Matt King]

Don't you think there might be chaos if private citizens had access to such weapons?

 

[Double Naught Spy]

As I stated, I don't want one, but I'll never relinquish my right to have one.

That is good given you can't relinquish that which you don't have. You can claim all you want that the 2nd Amendment is absolute, but it will be absolute only in your mind.

 

[ConstitutionCowboy]

You can claim all you want that the 2nd Amendment is absolute, but it will be absolute only in your mind.

Oh, It's not only in my mind. There are several other minds that have it as well.

Don't you think there might be chaos if private citizens had access to such weapons?

No. There are millions of tons of fertilizer and millions of gallons of fuel oil - not to mention a quarter of a billion guns - in the hands of private citizens right now. See much chaos?

Woody