lawful versus legal

[rock hunter]

Food for thought. If the second amendment has not been changed, LAWFULLY, not legally, What is the status of the law's on record? Are the laws null and void on the face of them? The second amendment say;s that citizen's not government have a RIGHT, not a priviledge, to arm themselves. And this right, shall not be INFRINGED. So, what is the real law concerning weapon's?

 

[Gungnir]

"a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

So that is the Cornerstone of the argument.

The Legislation that has been built up around this, is down to interpretation of this.
What does infringe mean?
Collective (Millitia) vs. Individual right
Who are the people?
Which arms were they talking about?

My personal perspective is the 2A is definitive, "the right of the people to keep and bear arms, shall not be infringed"

If you want a 155mm Howitzer with rounds and propellant, it is covered by your right supported by the 2A. Remember the 2A implies this right existed before the BoR was written, and is a government restraint, not a personal freedom.

BIG BUT!
State laws differ... Federal Law and the BATFE will enforce the Federal Law first (while trampling the spirit of the RKBA), you might argue your case in court that a Law contravenes the Constitution and 2A rights (See NRA/SAF vs. Washington State) but you'll be jailed (most likely) and it takes time and money to fight the government.

Does this mean that the government is infringing on the 2A?
Yes!

 

[LaEscopeta]

The Legislation that has been built up around this, is down to interpretation of this.
What does infringe mean?
Collective (Millitia) vs. Individual right
Who are the people?
Which arms were they talking about?

+1. Or at least the Legislation that has been built up around the 2cd SHOULD be based on these questions. We all know there are gun control laws that pretend the 2cd amendment does not exist, and hopefully post-Heller cases will strike them down in the near future.

Anyway, here are the answers from the Heller and Miller decisions to the relevant questions listed above, as I understand them (not a lawyer, don’t play one on TV, you have the right to your understanding, etc.)

What does infringe mean?
Do you have an arm (a weapon?) Is it of the type in common use today? Are you allowed under the Law to bear it (carry, use) for traditional lawful purposes? Then your rights are not infringed.
Do the majority of households in the US have at least one such weapon, and are people allowed to carry/use it? Are there more privately owned firearms in the U.S. then people? Then the right of the People has not been infringed.

Collective (Militia) vs. Individual right
If required, could the majority of able bodied citizens in the U.S. join together for the common defense, each with a weapon they themselves supplied? Then the individual right and responsibility to secure the free state exists. (It does not matter if the Government, State or Federal calls them up, or if they just organize themselves.)

Who are the people?
For the purposes of the 2cd amendment, citizens and legal residents of the US willing and capable to join together for the common defense and secure the free state.

Which arms were they talking about?
Those in common use for traditional lawful purposes.

 

[Duke of Doubt]

rock hunter: "Food for thought. If the second amendment has not been changed, LAWFULLY, not legally, What is the status of the law's on record? Are the laws null and void on the face of them?"

No.

 

[QuietEarp]

I think that meaning can hinge on many of the words as it is written. The word State is capitalized and that is the one I have been thinking about lately with different states having different laws. I like the last half of the Second Amendment and I think that there is some strange wiggle room in the first part.

 

[sailortoo]

QuietEarp - State can be, depending on how it is used (context), either a political, physical area (state of Maine, state of New York), or it can be a "condition", as a State of Freedom, a state of poverty, a state of dispair. Punctuation and capitalization in the 18th century did not necessarily follow what we may consider "correct" currently. My reading of the 2A has always been a condition - of Freedom, and if I remember correctly, the D.C. vs Heller case also used the same "condition", rather than a political area. To our modern day thinking, maybe the phrase "for a State of Freedom", instead of "a Free State", would be less ambiguous.
sailortoo

 

[LaEscopeta]

"...being necessary to the security of a free State..."

From other writings of the Framers of the Constitution, most believe when they wrote “a free State” they were referring to countries and nations in general. They were saying not only should the U.S. be defended by a militia made up of the People, but every other county should be as well. From other writings of the Framers of the Constitution, most believe when they wrote “a free State” they were referring to countries and nations in general. They were saying not only should the U.S. be defended by a militia made up of the People, but every other county should be as well. The theory is it would be a lot harder for leaders to start wars of aggression that way.

(The wars started by the first government after the French Revolution, as well as the more recent militia fueled secular wars in the former Yugoslavia, Lebanon and Iraq kind of disprove this theory.)

 

[everallm]

The core issue is that the Second Amendment, is, as yet, still unincorporated. The biggest issues that were resolved for DC (a limited self rule, federal enclave) were

Outright bans on a single class of firearm in common use (handgun) are unconstitutional and illegal.
The "comma" and militia readings are null and void, the issue of ownership and legal use of firearms is an individual right not a collective right.
Arbitrary restrictions on storage and legal carry (in your property for example) are illegal and unconstitutional.
Current laws regarding (amongst other matters) felon restrictions on ownership, open and concealed carry, full automatic ownership etc etc were neither presented to, ruled on or directly invalidated by the DC ruling

We are starting to build case law around the Heller decision and from this will flow matters such as

Incorporation against all states
What is "reasonable regulation"
What level of scrutiny must be applied against firearms control laws
What does "in common use" mean
Are cosmetic feature restrictions, magazine capacity limits etc constitutional or are there boundaries that are applicable.


These will create the law around the legality and constitutionality

 

[Frank Ettin]

The bottom line is that all the gun laws now on the books are enforceable until a court says they're not. If you violate one, get caught, go to trial and are convicted, even in the face of any argument that you make that the law is unconstitutional, you will pay the penalty prescribed by law. End of story.

You can know in your heart that you were wrongfully convicted of violating a null and void law (in your opinion). But you're still sitting in a jail cell.

The opinion of a court about whether a law is valid and applicable trumps yours. The opinion of a court affects the lives and property of real people in the real world. On the other hand, your opinion and $2 will get you a cup of coffee at Starbucks.

 

[LaEscopeta]

You can know in your heart that you were wrongfully convicted of violating a null and void law (in your opinion). But you're still sitting in a jail cell.

Yes but while in your cell you can pass the time preparing your appeal based on Heller. Depending on the law you were convicted under, you may be rewarded with vindication by a higher court. Probably a decade and hundreds of thousands of dollars after you are released from the original sentence, but vindication none the less.

Sort of breaking the law and getting convicted, a better way to make a Federal case is what Dick Heller did; file to own a firearm, get denied and sue the government that denied you. New York City, where handgun permits are routinely turned down, would be a good place for this. Chicago, with an outright ban on all handguns, is not accepting applications, and is therefore set up to delay a ruling against its laws for a long time.

It seems most people expect the Supremes to settle the issue on incorporation of the 2cd (ruling it applies to state & local governments as well as the federal) in one of the cases currently going through the appeal process or under some future case. Both Heller and Miller refer to the history of the RTKBA going back before the founding of the US. Just like freedom of speech, religion, etc are ancient rights and cannot be infringed upon by laws at any level, most think the SCOTUS will consider the 2cd the same way.

 

[Shytheed Dumas]

Origin of the 2nd Amendment to the Constitution of the United States

The following explains in excellent detail who wrote the 2nd Amendment, what each word was intended to mean backed with plenty of documentation from each of the framers on their belief in individual rights (as opposed to the the anti's who constantly take "a well regulated militia" completely out of context). It's a bit of a long read, but it answered a great deal of my questions outright...

http://www.bard.net/2ndamend.html

 

[Frank Ettin]

...Depending on the law you were convicted under, you may be rewarded with vindication by a higher court. Probably a decade and hundreds of thousands of dollars after you are released from the original sentence, but vindication none the less....

Maybe and maybe not. Remember that the courts have allowed regulation of Constitutionally protected rights, subject to a strict scrutiny standard of review. And even Heller states implies that some regulation of the RKBA would be permissible.

The point is that to understand what regulation of the RKBA is likely to be found permissible and to be upheld, one needs to understand the the literature of decisional law applying the Constitution. Reading the Constitution in a vacuum won't help.

The following explains in excellent detail who wrote the 2nd Amendment, what each word was intended to mean backed with plenty of documentation from each of the framers on their belief in individual rights...

Very nice, but meaningless unless the Supreme Court sees things that way. Failing that, that little "analysis" and $2 will get you a cup of coffee at Starbucks.

 

[Shytheed Dumas]

Very nice, but meaningless unless the Supreme Court sees things that way. Failing that, that little "analysis" and $2 will get you a cup of coffee at Starbucks.

Well it seems to me that the anti's base their legislation proposals on two things:

1. Their interpretation of the Framer's intentions.

2. That crime will decrease if guns are banned.

By no coincidence, these would be the only two conceivable arguments to succeed in throwing out the 2nd Amendment. The analysis I submitted destroys their first point of discussion. The second has been disproven more times than I can count and threads on are found aplenty on THR. That said, sadly I agree with you... Ultimately no real or moral reason is needed to overturn it, but then again that's why we are here, isn't it?

 

[Frank Ettin]

...it seems to me that the anti's base their legislation proposals on two things:

1. Their interpretation of the Framer's intentions.

2. That crime will decrease if guns are banned....

I don't think so. I'm sort of with Jeff Cooper's view that the underlying basis for the attitude of the antis is really more a matter of psycho-pathology -- or a bent moral and philosophical perspective. The antis simply don't like the idea of private citizens having guns (many aren't very comfortable with the idea of even the police or military having guns -- but that's another delusion). Many are scared of violence and see guns as a tangible manifestation of a violent, aggressive facet of human character that they wish to pretend doesn't exist. Many are afraid that they can't cope with the world themselves and are frightened of those who are willing to try.

And the politicians who espouse the anti point of view prey on these sorts of fears.

But the point is that the foundation of the anti-gun view of the world really has nothing to do with a rational analysis of what the Founding Fathers thought. Rather it's a product of an unfamiliarity with guns and/or some level of mental aberration denying reality.

The thing is that the fence sitters can be won over by introducing them, in a proper and supportive manner, to guns and shooting and the best aspects of the culture surrounding guns and shooting. I've done this with more than a few. But the hard core antis are beyond reason.

 

[Shytheed Dumas]

Having heard my brother in law (who makes ohb look conservative) talk on guns, you and Jeff Cooper might be pretty much on track... I am a realistic, data driven person, and I have pushed on, confident in the belief that continually disproving the anti's might win a few over. If you're right, and there is an underlying psychological pathology, then what can be done with them? I agree that the fence sitters can be persuaded sometimes, but is that is far as we can hope to get with them?

 

[Frank Ettin]

...then what can be done with them?..

With the hard core of them -- nothing. Some peoples' minds can not be changed no matter how much evidence and reason you can bring to bear. There is such a thing as irreconcilable differences. And there seem to still be people who believe that the earth is flat.

So preserving the RKBA as best we can becomes an exercise in politics and appropriate resort to the courts. But that also means that we can never expect complete and total victory. The anits have, and will continue to have, some degree of political traction.

But that's the story of all significant social issues. The most radical of the civil rights activists don't get everything they want. Neither the Pro-Life nor Pro-Choice side can claim complete victory, and each has had to live with some resolutions that they haven't been happy about.