Article: According to the Founders, all federal gun restrictions are unconstitutional

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... the goal of interpreting written documents has been what I mentioned before, historical, literal and grammatical. Deviation must be supported and justified by either the text itself or supporting context. We've drifted so far from the plain text because dragging in extraneous bits into interpretation has become de rigueur. The founders and framers most certainly did disagree, sometimes vehemently. However, once the document was written, it became subject to the same rules of interpretation as any other document. ...

You have not described a goal of interpreting documents. You've described a manner, i. e., "historical, literal and grammatical." What does that have to do with the deciding of cases by courts?

However, in real life in the real world, the the legal system decides, through judicial process, disputes, disagreements, controversies, or legal questions. Law, including constitutions, statutes, regulations, and decisions of courts of appeal, is a tool used by courts to decide the the issues brought to court for resolution. While the parties may argue what the law is that is applicable to the case, it's up to the court, in the exercise of its judicial function to decide what law actually does apply and how it applies to the facts to decide the outcome. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177), "...It is emphatically the province and duty of the judicial department to say what the law is....." It's been that way since long before the birth of this Republic. That's what English courts did in the 1700s. That's what U. S. courts (both state and federal) did in the 1800s. That's what U. S. courts do today and will do tomorrow.

The foundation of our legal system is the Common Law of England as described almost 300 years ago by William Blackstone in his Commentaries on the Laws of England. A basic attribute of a common law system is stare decisis:
...the requirement that courts follow decisions of higher level courts within the same jurisdiction....

Today law in United States comes from enactments of legislative bodies, like Congress or the legislatures of the States and case law (judicial interpretation and application of legal principles). See this outline of "Basic Concepts of American Jurisprudence."

In real life in the real world if courts aren't deciding matters using what you think the law is, your understanding of what the law is is wrong. The opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinions and $2.00 will get you a cup of coffee. The fact is that no one cares about your opinions, and the world is going about its business, and will continue to do so, without regard to your opinions.
 
The article is arguing for how the 2A should be interpreted based on historical references with the hope that it may influence current discussion.

The writing could be more accurate to say the federal gun restrictions should be deemed unconstitutional but I suppose it’s obvious that the courts interpret the law.
 
There's a very real dichotomy within our RKBA community of late. And one side of that has taken an absolute stance that "shall not be abridged" must needs equate to "no legislation at all."
Which does nothing to promote unity within our community.
They then insist on absolute ideological purity to that ideal of all around them--which only compounds the disunity.

Yet, it is inescapable that we live in a society of laws. We expect laws that provide for the sanctity of our contracts; the security of our persons and property; the preservation of our identities. These are pretty fundamental individual rights. And we expect, if not require, legislation enforcing and protecting same.

Now, I fully understand the emotion behind "shall not e infringed" = "no gun laws at all"--but, I contend it's a reflex born of the 20,000 or more higglety-pigglety laws on firearms out there right now. And the lack of uniform enforcement of same. Which reduces that enforcement to capricious and felicitous at best.
There is an old adage that an unenforceable law is not a law at all.
Which might make all the sturm and drang pointless.
 
A good, well researched article. Nonetheless, Heller was decided as it was. Whether the analysis in the article will influence future court decisions remains to be seen.

I expect that future rulings from the Swamp's high priests will be shaped more by "the governmental interests" (mentioned in your post #17) than by any consideration for the intent of the Constitution's authors.
 
I expect that future rulings from the Swamp's high priests will be shaped more by "the governmental interests" (mentioned in your post #17) than by any consideration for the intent of the Constitution's authors.

Of course if you had actually bothered to do some research and read the cases I cited you'd know that in real life in the real world your statement is nonsense.

  1. While the Court noted in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81 (1943) that rights protected by the Constitution were not absolute, the Court in that case ruled against the government finding that the governmental interests were not sufficiently strong to warrant the impairment of the individual rights at issue.

  2. Similarly in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) the Court found against the government.

  3. More to the point of this thread, the Court found against the government in both Heller and McDonald.

  4. And in many landmark cases like Brown v. Board of Education, Roe v. Wade, Engle v. Vitale, Gideon v. Wainwright, Goss v. Lopez, Mapp v. Ohio, Miranda v. Arizona, and United Staes v. Alvarez, to name just a few, the Court sided with individual rights over governmental interests.
 
little or no fealty to the Constition

Fealty is a word I researched just last week because I read it in a headline and had never heard it used before. A shortcoming of my early learning/vocabulary. In short "loyalty"

The article is arguing for how the 2A should be interpreted based on historical references
(Note: I did not read this article but the quoted part of readyeddy's post is a subject I have considered deeply)

I am researching the concept of compromise in the founding documents. It has always intrigued me that there were both pro and anti slavery advocates amongst the founders. Yet the final documents were signed including slavery and even assigning a population of 3/5ths to slaves indicating to me a compromise. I believe that if we are going to be honest with ourselves that we cant just take the opinions of the founders that agree with our point of view and ignore that there were founders who disagree. And why did they sign the constitution if they believed that certain things were wrong?

I believe that, in the case of slavery for example, those that disagreed with its continuance were pacified (poor choice of words on my part but is the closest to what I mean, poor vocabulary again,feel free to suggest a replacement via PM) by the fact that there was a way to both change what was written and or challange the new laws that were to be writtin in their future. The amendment process and what powers the judicary was given was their hope. So we have what we have and even if all of the founders believed that the right to keep and bear arms was untouchable, unlikely evidenced by the fact that state constitutions dealt with the concept differently, we have the processes in place to challange that thought and those processes were agreed to. I would bet there were those that rejected the idea of compromise. In the end, I bet politics was very similar to what we see today and not the scholarly picture we see on the walls of the Whitehouse.

One can't, in my opinion, just say the constition says what it says because that is what the founders wrote and signed. There were many differing opinions amongst the founders. Thats why it took what, 7 years to come to what i believe was a compromise. I believe that without the ability to change we likely wouldn't have a constitution and whatever ramifications that implies. And I suspect those ramifications were dire at the time the constitution was signed and a reason there was a compromise. The founders weren't living in an academic time or place. Their very existence was dependent on an agreement. It took people willing to compromise with the hope that their beliefs could become reality in the future. I don't believe that any of the anti slavery advocates believed slavery would be abolished in their lifetimes. They had to rely on the promise of future generations and the processes included in the constitution and the belief that right (as in correct) changes could be made.

I hope to complete my research before I die, but at 60 and still working, the idea my die with me. Sucks having to work for a living.
 
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I hope to complete my research before I die, but at 60 and still working, the idea my die with me. Sucks having to work for a living.

I will be 79 in 25 days. I too am hoping to complete my research, but I intend to live t be 100 to do that.
 
These are the same founding fathers that required gun ownership, thereby destroying the right to keep and bear arms by making it mandatory with the Militia Acts? A right ceases to be a right when it becomes a legal duty or obligation.
You are talking in circles. There is no reason, logic, or basic common sense in your statements. I hope you’re not a lawyer or a judge. But I wouldn’t be surprised.
 
Of course if you had actually bothered to do some research and read the cases I cited you'd know that in real life in the real world your statement is nonsense.

The key word in my post was "future", and I have expressed my expectations - especially with regard to the Second Amendment - the U.S. Supreme Court struck down local ordinances in Heller and McDonald, and it is conceivable that they would do it again. I won't complain if it happens, at least it would benefit the people who live in those locales.... but I'm not going to hold my breath.

Do you expect that the Supreme Court will strike down any existing federal gun laws? Do you think that the Supreme Court would ever strike down any future federal gun laws? Perhaps you are more optimistic than I am.
 
I think people generally and fundamentally get lost on this topic, and what the intention was - pretty sure can be discovered with a little digging. To pose an example - what happens tomorrow, if say and army of 40 Million lands on US shores tomorrow, occupies a large area - several states and simply keep extending with the idea of taking over the entire nation? Murdeing and slaughtering millions along the way - picture WW2 Nazi type scenarios. What could have happend if a few battles went slightly differently in WW2? You don't think their next step was here? I think very quickly every person in the nation would be considered a soldier in the war and part of the militia necessary to the security of the free state. If history has said anything - there will be wars, many of them, and probably some of them will be here on US soil.

In the context of the 1700s, and what nation is - was to become, you, me, every person - is part of the nation, and the queston then becomes, what could you add to the survival of the nation, thus your survival - the two are intertwined. So, in the founders effort to preserve the nation, and the people of the nation - the armed militia statements, and right to bear arms, from my understanding - was written to preserve the nation against hostile actors and extraordinary circumstances. Be those forces and armed invasion on mass scale, or a home invasion, the degree of self and national preservation is scalable.

You have a natural right to exist, and thus the right to bear arms - and, is justified in the wording of the 2nd, as being neccesary to the security of a free state. If you think about it - kind of means, well - it does mean, without the right to bear arms - you will quickly no longer be part of a free state, you will be a subject, not a citizen. It is what it is. If the free state can not be secured, why would it not be lost? Does anyone who is honest not think there are billions on the planet that if they could would not erase the entire exitence of the US from history tomorrow with the blink of an eye if they could?

I haven't done a poll, but - I get the impression a large percentage of the US Population and one fo the major parties would gladly wipe away all the history of the country, and flush millions of us down the toilet in a second. Exactly to what end, I have no idea, anger, bad childhood, spite, jealousy, fear, self loathing, hatred, racism, bigotry ... maybe some of all of it, but - it sure doesn't make me feel like not being able to defend myself agaist such forces is a reasonble suggestion.
 
You are talking in circles. There is no reason, logic, or basic common sense in your statements. I hope you’re not a lawyer or a judge. But I wouldn’t be surprised.
I believe what he is saying is that if a government mandates something that is a right, it ceases to be a right. Think of ying and yang. Opposites as it were. Well, you cannot believe in good without believing in evil. You cannot have a right to life without a right to death. You cannot have a right to exercise your religion without a having a right not to believe in anything. But if the government says you MUST exercise a right, they take the freedom to not exercise the right away from you. Thus, it ceases to be a right. Go back through the BOR and look at it from an opposite perspective. If you choose not to exercise a right, you have the right to do that. Like housing soldiers or a jury trial. Saying you can is not the same as saying you must.
 
The key word in my post was "future", and I have expressed my expectations - especially with regard to the Second Amendment - the U.S. Supreme Court struck down local ordinances in Heller and McDonald, ...

Do you expect that the Supreme Court will strike down any existing federal gun laws? ...

Why do you think the future will be different? And in Shapiro v. Thompson, and United Staes v. Alvarez the Court declined enforcement of federal laws.

People believe a lot of things that aren't true in real life in the real world -- often because they rely on assumptions and predisposition instead of research and evidence.
 
Why do you think the future will be different?
The future is always different. It was the future that caused courts to hear case Hylton v. United States. There no reason to think the future won’t be different.
People believe a lot of things that aren't true in real life in the real world -- often because they rely on assumptions and predisposition instead of research and evidence.
Based on your research, what things and how often? Without a subject, belief proved to be false, and quantifiable number, all you did was make a pejorative statement without any substantive supporting evidence. So if you’re going to call the kettle black, don’t be the pot.
 
Wandering off topic. I read the article. I will give a small take. Frank can tell me if I'm out of the legal lane. The piece discusses the rationale from Scalia for gun ownership as focusing on self-defense. A definition of such included personal self-defense (crooks and bears), defense against tyrants and defense against invaders. The latter two were de-emphasized in modern times. Home SD seems to be the focus for Scalia on the rationale for handgun ownership. The ownership of other guns (long arms, ARs) is confused with common usage, old time muskets as common, etc. I might be incorrect in my read of this part of the article.

However, I've said before, that the focus on self-defense in the home is a poison pill as that focus opens up a debate that AWBs, mag bans are reasonable as they are not needed for typical home owner self defense. In some lower courts, I've read that the need for more potent arms for SD has been rejected by judges, despite a few instances of such being used and their need argued in the abstract for mobs, etc. Also, we have a common post on 5 is enough - now, carrying smaller cap guns is reasonable given dress concerns. However, we get the folks who say that carrying a higher capacity gun is being a nut, the average is 3 shots - so you NEVER need more (take a stat class). That view is picked up by antigunners and best expressed by double barrel Joe.

Thus, the discussion of self-defense in the homeowner paradigm - allows the weapons and mag bans, as these are too dangerous for common use arguments, given their risk of horror. Common use for sport is irrelevant. The article has the usual blather that with modern weaponry, citizenry with semis will fall to B-2s and tanks, so why make the tryranny argument.
 
Washington being a cesspool is off topic. Don't continue in the vein. Deleted such.
 
Double Nought, here's the hole in your idea. The constitution is a constraint on federal government and those colonial era laws requiring ownership (and there were exemptions) imposed by the individual colony or locality. None were imposed by a broader government.

I could have sworn that the 2nd United States Congress was part of the federal government. Let's see now. The federal government, as we now know it, had the first congress with the house and senate and some President named Washington in 1789. It was this congress that ratified the Bill of Rights in 1791. In 1792, the 2nd United States Congress passed the first two Militia Acts.

So I definitely believe you are in error.

It was Militia Act #2 made it a requirement for firearm, bayonet, etc. etc. etc.
 
I think people generally and fundamentally get lost on this topic, and what the intention was - pretty sure can be discovered with a little digging. To pose an example - what happens tomorrow, if say and army of 40 Million lands on US shores tomorrow, occupies a large area - several states and simply keep extending with the idea of taking over the entire nation? Murdeing and slaughtering millions along the way - picture WW2 Nazi type scenarios. What could have happend if a few battles went slightly differently in WW2? You don't think their next step was here? I think very quickly every person in the nation would be considered a soldier in the war and part of the militia necessary to the security of the free state. If history has said anything - there will be wars, many of them, and probably some of them will be here on US soil.

In the context of the 1700s, and what nation is - was to become, you, me, every person - is part of the nation, and the queston then becomes, what could you add to the survival of the nation, thus your survival - the two are intertwined. So, in the founders effort to preserve the nation, and the people of the nation - the armed militia statements, and right to bear arms, from my understanding - was written to preserve the nation against hostile actors and extraordinary circumstances. Be those forces and armed invasion on mass scale, or a home invasion, the degree of self and national preservation is scalable.

You have a natural right to exist, and thus the right to bear arms - and, is justified in the wording of the 2nd, as being neccesary to the security of a free state. If you think about it - kind of means, well - it does mean, without the right to bear arms - you will quickly no longer be part of a free state, you will be a subject, not a citizen. It is what it is. If the free state can not be secured, why would it not be lost? Does anyone who is honest not think there are billions on the planet that if they could would not erase the entire exitence of the US from history tomorrow with the blink of an eye if they could?

I haven't done a poll, but - I get the impression a large percentage of the US Population and one fo the major parties would gladly wipe away all the history of the country, and flush millions of us down the toilet in a second. Exactly to what end, I have no idea, anger, bad childhood, spite, jealousy, fear, self loathing, hatred, racism, bigotry ... maybe some of all of it, but - it sure doesn't make me feel like not being able to defend myself agaist such forces is a reasonble suggestion.
Bravo and well said, my friend.
 
Great article and not wrong.


From the article: "A plain reading of the Second Amendment ought to be enough to stop nearly all federal gun laws. But over the past century, courts and scholars have watered down the Bill of Rights with convoluted arguments that contradict the overwhelming historical evidence available today.

The truth is, the intentions of those who debated, wrote and passed the Second Amendment are clear: The purpose of the amendment is to protect individual liberty by, in part, stopping the federal government from instituting gun restrictions of any kind, because America's founders wanted to ensure citizens had the ability to defend themselves against a tyrannical national government and other domestic threats, as well as from foreign invaders."





View attachment 988991
"...America's founders wanted to ensure citizens had the ability to defend themselves against a tyrannical national government..."

Can you post a link to information that the Second Amendment's purpose was to ensure the ability to defend against the national
government?
 
We lost in 1934

The irony is that when the average Iraqi or Afghani can have a selective fire AK or Dsika or even a RPG, can we really call ourselves the land of the free? Who has more freedom?
 
"...America's founders wanted to ensure citizens had the ability to defend themselves against a tyrannical national government..."

Can you post a link to information that the Second Amendment's purpose was to ensure the ability to defend against the national
government?

Well, Senator Hubert Humphrey, classified as a liberal, said:

"The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible." -- Senator Hubert H. Humphrey (D-Minnesota)"
 
Hubert Humphrey was a giant among men in many ways, not least for being probably the last classically-educated populist (d).

More to the point, though, is the question of whether we ought consider this article versus its publishing date of 1 April, and if our chewing upon it is just an April Fools?

Not that a legitimate discussion of the original intent of the 2nd is without merit, only that barking at shadows might be less useful. Dunno.
 
Well, Senator Hubert Humphrey, classified as a liberal, said:
"The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible." -- Senator Hubert H. Humphrey (D-Minnesota)"
"No free government was ever founded, or ever preserved its liberty, without uniting the characters of citizen and soldier in those destined for the defense of the State. Such are a well regulated Militia, composed of the freeholders, citizen, and husbandman; who take up arms to preserve their property, as individuals, and their rights as freemen."____James Madison … United States Congress, 1779 Bill of Rights Ratification
Source: https://home.epix.net/~stevekrz/index.html
This source is a collection of quotes from the Founding Fathers, their associates and contemporary thinkers on all things regarding law and governments. Very interesting and very informative, IMHO.
 
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