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Need help fighting 2nd Amendment clown

Discussion in 'Legal' started by DammitBoy, Jul 14, 2009.

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  1. DammitBoy

    DammitBoy Member

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    I post on another site that has a vigerous debate always going on about the 2nd amendment. There is one poster there who posts the same argument over and over - here is the jist of his argument:


    So what is your impression of this guys argument?

    Is he nuts? Is he 100% wrong? Is he right?

    Does anyone have a good argument to counter this person's hypothesis?
     
  2. Jolly Rogers

    Jolly Rogers Member

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    In conflict with Heller, period.
    Joe
     
  3. divemedic

    divemedic Member

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    The Second Amendment has nothing to do with establishing a Militia. That is done in Art I Sec 8-9, and Art II Sec 2.

    Keeping arms is not a privilege or immunity. Where in COTUS does it say that?

    As far as insurrection or rebellion, your friend is correct.

    States do not have rights, they have powers, which they obtain through the consent of the governed. A 'sovereign right' is a fiction.


    If your right to bear arms is contingent upon your membership in a militia, then it is not a right.

    Read the Heller decision.
     
  4. Phatty

    Phatty Member

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    Absolutely right.

    Keeping arms would properly be considered an immunity. An "immunity" as used in the privileges and immunities clause of the 14th Amendment is synonymous with "fundamental rights." Privileges would be rights that are not fundamental, but are nonetheless held by the people.

    The arguments that are quoted in the original post are almost incomprehensible. To me, it looks like he has bastardized a lot of language from the Presser v. Illinois decision.

    All I would do to respond to that guy is quote a passage from Heller that holds that the 2A protects a right that is unconnected to the militia.
     
  5. tbreihan

    tbreihan Member

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    There is a lot of persistent confusion about the meaning of "well-regulated." Today we understand "regulated" to mean "controlled," suggested an organization. In standard English usage in the 17th and 18th century, "well-regulated" meant "functioning properly." Literature and everyday writing contemporary to the Constitution refer to "well-regulated morals" or a "well-regulated gentlemen." In context, this clearly does mean "well-controlled" but instead "functional" or "functioning properly." I am not an Original Intent reader of the Constitution--it says what it says. In this case however, it is important to understand the contemporary usage of regulated because in today's usage it means "controlled" which is NOT what it meant in the 1780s.

    Remember that the 2A does not refer to "the Militias'" right to bear arms but to "the Peoples'" right to bear arms. This is the same People that are referred to in the enumeration of the right to assemble and the right to free exercise, the right to protection from unreasonable search and seizure, and others, all properly recognized as individual, not collective, rights.
     
  6. CoRoMo

    CoRoMo Member

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    You could always tell him that the majority of the Supreme Court, the majority of the state legislatures, the majority of Americans, the majority of Congress, etc. all disagree with him. Everybody can't be wrong.

    He can stay in the wacko little marginalized minority.
    There is always going to be someone that begs to be enslaved, controlled, and confined.
    We have a few members here that seem to fit into that slot.
     
  7. Faitmaker

    Faitmaker Member

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    As I have always been told, the first part of 2A is a causation clause. Why are we writing this right down? Because it's important to have a well-regulated militia or to put it in my terms, the "people" (those who empower governments "you and me") need to be armed when the SHTF.

    Personally, I'm going to suggest to you that there is no arguing or debating with this gentleman as he appears to be a nutjob.

    @CoRoMo - Always loved that quote.
     
  8. jww

    jww Member

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    The uneducated (apparently) 2nd amendment guys thinking

    CoRoMo probably said it best.....if ya need to....send along his little ditty. Besides, it is difficult at best..to argue with an itiot....you have to drop to his level, and then, he will just beat you up with his illlogic.

    You could always tell him that the majority of the Supreme Court, the majority of the state legislatures, the majority of Americans, the majority of Congress, etc. all disagree with him. Everybody can't be wrong.
     
  9. mgkdrgn

    mgkdrgn Member

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    It's not sporting to enter into a battle of whits with an unarmed man. Besides, those blow up clowns are suppose to bounce back up once you punch them down.
     
  10. CoRoMo

    CoRoMo Member

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    For those who've not taken the time to read through the opinions from Heller, I recommend doing so. Here is a good piece from Justice Scalia's opinion.

     
  11. iiranger

    iiranger Member

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    Simple minded "legalist..."

    You "beat" this kind of fool by carrying their arguments to full extent which ends up absurd.

    Most basically, the founding fathers of USA "went around" standard practice, acknowledging "the king" as God's best source of guidance on earth... and transferred this power/authority to "the people." The right of "self defense" with best possible tools, and guns rank right up there, is from God and not subject to prohibition by a "king." The Constitution does not "grant rights" rather, it protects rights already granted by God... to all people...

    The legalist wishes to put the king back into the equation as "source."

    Same wrong headed thinking about the states. State government only has authority granted by "the people." And if this "anarchy" is backed by the people, guess what? the militia should align with them...

    A "militia" could be authorized to disarm an "anarchy..." By definition an anarchy is not very organized therefore... how do you find it??? Silly.
    b). The militia was anyone who could be used by the king as a soldier or soldier support. Yes, women "close by" were subject to call...

    If you wish to distract, you can talk about the time the king outlawed football. True. The king wished more archers so he prohibited any activity on Sunday pm's after church, except archery. The actual game forbidden would be better recognized today as "soccer" or "rugby." (And they snuck off and played it anyway.)

    More to the point, consider the law against "maiming" someone. "Maiming" was harming the usefulness of the person as a POSSIBLE soldier of the king, a member of the militia. If you bit off the tip of a nose, no maiming 'cause a soldier didn't have to be able to smell or look nice to be a soldier. Now biting off an ear and harming the ability to hear... = "maiming..."

    "2nd only exempts people who are part of a militia..." Guess what, everyone who is not dieing in bed is part of the militia and those are only exempt as a courtesy, so who does this moron think is left...

    Best attack is to substitue the other "bill of rights" "rights" into his arguments. "Freedom of Speech" is only available to the "militia" and not to a mob... "Freedom of Assembly" is only available to the militia and not to a mob... "Jury trial" is only available to the militia and not to the "anarchy..."

    Kind of defeats the whole document to argue this way... Super silly.

    And you really want to cause headaches, go down to the 14th and argue that, well, the state had the right to deny freedom of speech or jury trial, but in its wisdom the government covered this with the 14th... thus the reason for the 14th so the God given right to speak for instance is guaranteed by both Fed and state constitutions...

    When the headache gets bad enough he will go away and not come back...
     
  12. dyeguy21

    dyeguy21 Member

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    Coromo is spot on. Grammar is not a large American forte. People also forget that the meaning of words change throughout time. Just think the next time someone tells you they literally died of laughter...
     
  13. Faitmaker

    Faitmaker Member

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    "Do not argue with an idiot. He will bring you down to his level and beat you with experience."
     
  14. ezypikns

    ezypikns Member

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    Just kind of makes it up......

    as he goes along, doesn't he?
     
  15. Lou McGopher

    Lou McGopher Member

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    The first thing to point out is that the Constitution does not grant any rights. All rights are assumed to be pre-existing, and the Amendments are given to prevent government abridgment of those rights. Ask your opponent to point out where in any amendment are rights either granted to the people, or restricted from being exercised by the people. Ask you opponent to point out which words restrict or grant anything. The text of the amendment is not written in ancient Sanskrit. It's in plain English, and there's no need to make it more difficult than it really is. The only restrictive part of the amendment is "shall not be infringed." What shall not be infringed? "The right of the people to keep and bear arms."

    The second thing to point out is who possesses the right... the people. It does not say "the right of the militia," or "of the government." It says the right belongs to the people. Well, who are the people? They're the same people referred to elsewhere in the Constitution, including the First Amendment. Ask your opponent to explain why "the people" means one thing in 1A, and something entirely different in 2A.

    The third thing to point out is that all powers possessed by the government are delegated to the government by the people, and that you cannot delegate what you do not have the right to do. One cannot delegate what one does not have the right to do oneself. Thus, our government, which (allegedly :scrutiny:) derives its power from the people, can establish a group of people to bear arms in our defense, only because the people themselves have a right to keep and bear arms in their defense.

    The part about the militia is prefatory clause. It's a non-exclusive explanation of why the amendment prohibits the government from infringing upon the right. Nothing more. I'm sure you can find plenty of evidence of how the framers defined "militia," and why they thought it was important to have one. And no, the Guard does not fit that definition.

    Here your opponent is confusing the idea of individual rights with the idea of collective rights. In other words, he does does not know what he is talking about. There is an argument that the 2A protects a collective right... that is, it is possessed by a group of people (the militia), not by individuals. This is what your opponent is arguing for, but has his definitions all screwed up. The thing to point out is that there are no collective rights. All rights are individual rights. All rights arise from the self-ownership of the individual. This may require you to educate your opponent (and perhaps yourself) on the nature of rights. I recommend reading Locke, Paine, and Benjamin Tucker (before he switched from natural rights to egoism). All rights belong to individuals, and the right to self-defense is possessed by all living things. Anyhow, how many people would it take to make a "collective?" Every single person? Two people? Who gets to decide? Technically, "individual right" is redundant, as there is no other sort of right. You do not gain rights by joining a group, nor can you cannot lose them by joining a group. This also means there are no such things as "women's rights," or "citizens' rights," or "minority rights." Nobody has any more or fewer rights than anybody else. (I'll come back to edit this post when I find some good online resources concerning the nature of rights.)

    This is a completely fabricated, baseless assertion.

    Argumentum ad verecundiam. This is a fallacious argument. Because "so-and-so says" is not a valid reason, and we should never use such an argument as a justification for our beliefs.

    Also an argumentum ad verecundiam. And yes, everybody can be wrong.

    Correct. It could also be defined as "well-trained." Either way, it in no way restricts the right of the people.

    Hope this helps.

    I'll come back when I can recall some more.
     
    Last edited: Jul 14, 2009
  16. CoRoMo

    CoRoMo Member

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    Correct, but we're not arguing with someone who can be swayed by facts or logic. As long as this guy interprets the militia/collective viewpoint according to his own likings you'll never get anywhere. The sky will remain orange according to him.

    I often use argumentum ad verecundiam positions when arguing with anti-hunting libs. When you point out to them that, regardless of their feelings, nothing is going to change in their favor, you hit them where their beliefs come from; their feelings.

    Of course, the factual argument is best to begin with, but when you try and point out that the first four words are part of the prefatory clause, they simply respond that, "No is it not".
     
    Last edited: Jul 14, 2009
  17. Phatty

    Phatty Member

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    I agree with your statement with respect to fundamental rights. But I don't agree with the statement when taken literally. For example, the Constitution authorizes Congress:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    There is no natural or Creator-bestowed right to exclusively profit from one's inventions and writings. Instead, the government grants that right to individuals.
     
  18. Lou McGopher

    Lou McGopher Member

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    Here is some of what I said, phrased by someone a little more eloquent than I:

    Charley Reese
     
  19. Carl N. Brown

    Carl N. Brown Member

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    Our Second Amendment clearly enumerates a Militia, as being necessary to the security of a free State. An Anarchy or Mob of individuals who keep and bear arms, may be denied and disparaged in their privilege and immunity to keep and bear arms....

    is quite a bit removed from

    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.


    The Constitution of the United States is based on the principles of democracy laid out in the Declaration of Independence by Thomas Jefferson, not on the justification of an absolute state laid out in Leviathan by Thomas Hobbes.

    My father was one of the people who kept and bore arms in the mountains of Tennessee to hunt to help feed the family and to protect the livestock of the family farm, who volunteered and signed up "for the duration" of World War II to defend the Constitution of the United States against the foreign enemy. I believe that was what the Founding Fathers had in mind, the people as the source of defence of the state. Sounds like the guy quoted above views the people as an anarchy or mob that should be repressed by the state.

    ( In the Second Amendment "state" is lowercase, does not refer to a State as one of the United States as in the body of the Constitution, but refers to state as a generic reference to a government. The example clause is not exclusive: it is not the only reason, but it is an important reeason for a free state not to infringe the right of the people.)
     
  20. Phatty

    Phatty Member

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    It depends on the context of the original arguments. Was the original premise what the clown believes the correct interpretation of the law should be, or was the original premise what the clown believes is the current state of the law? The SCOTUS has the final say on the proper interpretation of the Constitution. So, if somebody asks, "Does the 2A protect a collective right?" it is completely proper to refer them to Heller which is the ultimate authority on that question. However, if somebody asks, "Did Heller properly construe the 2A?" then you should not simply point back to Heller as authority, but instead provide independent justification.

    The fallacy of this statement is readily revealed. Take for example the following question: "Does Judge Sotomayor believe the Constitution protects a general right to privacy?" A perfectly reasonable answer would be, "Judge Sotomayor says that she does believe the Constitution protects a general right to privacy." Case closed.

    Pointing to "so-and-so" is perfectly acceptable when "so-and-so's" position grants them with a unique ability to shed light on a topic.
     
  21. legaleagle_45

    legaleagle_45 Member

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    He is not to well versed in the 2nd Amend. Such arguments would not be made by persons who are familiar with the the jurisprudence of the 2nd Amend, even if they were arguing against the "Standard Model". Some specific arguments:

    Gibberish. This does not tell us anything whatsoever. I think he muddeled his argument.

    Even if true, it is totally irrelevant to the issue at hand. The fact is portions of the BoR's protect individual rights from both federal and state infringement, so the question is what does the 2nd do?

    I assume he would add an additional qualifier that the arms protected are only those that are actually used in performance of his duties in a well regulated militia. If not, he presents an equal protection problem. If so, the feds already have (and had) that power under the Constitution. See Article I, Sec 8, Par 15-16 and the Supremacy Clause.

    There is no historical basis for this view. On the contrary, it is clear that the right to arms applied generally to all citizens and it served two distinct purposes. Blackstone referred to this as "the natural right of resistance and self preservation". The resistance right is associated with the militia in that it supposes a conflict with authority or supposed authority. The self preservation right is clearly and unequivocally the self defense right. This self defense right is further explained by Blackstone to be a crucial portion of the the "right to life", and the "first law of nature. That it needed no emphasis or further explanation in the 2nd is "self evident" as "all men are created equal and endowed by their creator with certain unalienable rights" includiding "life, liberty and the pursuit of happiness. The inclusion of "life" as first on the list is no accident. This "life" right was well understood and the phraseology can be traced from Jefferson, to Blackstone, to Locke and to Hobbes.... and it clearly and unequivocally included the self defense right as the first law of nature.

    As far as the militia is concerned, the framers were concerned with how a militia could be formed if the prospective members of said militia do not have arms. In the history of the right to arms, militias had been rendered a nugatory by disarming the general populace.... not merely disarming the members of the "well regulated milita"

    Finally, his argument is totally insane if you consider that the 2nd was originally considered to be merely a restriction on the federal government. How could an individual exempt himself from state gun laws under the command of the 2nd if the 2nd did not then apply to state law? Of course, state law would have run right in the face of federal law because the Militia Act of 1792 required every citizen do own and keep a musket.... but that again is the supremacy clause coming into play and not the 2nd.

    In short your 2nd amend clown is totally illiterate when it comes to the 2nd Amend....

    (and I did not mention Heller once).
     
  22. 2RCO

    2RCO Member

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    I think the Heller decision nullifies this muppet's entire argument. I really don't get how people can read something so simple and make it so complicated.

    I can fit it on a wristband for Pete's sake. The 2A is pretty self-explanatory for Pete's sake.
     
  23. Lou McGopher

    Lou McGopher Member

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    You're quite sharp! :eek:

    That is one of the problematic parts of the Constitution. The "exclusive Right" is not a genuine right, but really a privilege. It is not a natural right - a moral claim to freedom - it is a "social right." The Constitution uses the word "right' loosely, and even elsewhere the definition of what constitutes a "right" is highly contentious, and such definitions are often anything but clear.

    Personally, when asked to justify my possession of weapons, I never point to the 2A. One - the 2A could be repealed, two - the 2A only says the govt isn't to infringe upon the right, three - it's an appeal to authority, and four - I'm an anarchist.

    So, you caught me. When I said the Constitution grants no rights, I was going by a narrow definition of the word, ignoring the fact that the word is used more broadly in the document itself. I'm really glad you pointed that out to me, thank you. :)

    Honestly, I don't even believe in the existence of natural rights. But explaining this necessitates a discourse on egoism... and that's more than most people are willing to sit and listen to. :D Most people are familiar with and accept the concept of natural rights, so I go with that. It's simplifies my life.

    Agreed.

    Until so-and-so disagrees with you. It's one thing to reference the reasoning or evidence presented by so-and-so. That's all well and good. But to point to what so-and-so said as being valid because they said it is generally not good.
     
    Last edited: Jul 14, 2009
  24. ConstitutionCowboy

    ConstitutionCowboy member

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    I beg to differ with this line of thought. Congress is authorized to SECURE the inventor's/author's exclusive right to profit from their inventions/writings. Nowhere does it say that Congress is granting inventors and authors the right to exclusively profit. Congress is actually granted power to set a limit on how long this right can be held exclusive to an inventor or author. So, geniusiknowit, you were(or are) right to begin with when you wrote, "The first thing to point out is that the Constitution does not grant any rights. All rights are assumed to be pre-existing, and the Amendments are given to prevent government abridgment of those rights."

    Woody

    I see it clearly as fact. Words mean things. Just as numbers have value, you can add, subtract, multiply and divide them. I just do the math. B.E. Wood
     
  25. Lou McGopher

    Lou McGopher Member

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    Man, I can't believe I let that get by me. I've read the damn thing so many times... When Phatty pointed that out, I thought, "How did I miss that? I've been saying this for years now... Can't believe I've been wrong the whole time." :uhoh:

    Been a long day, my friends.

    Still, good work by Phatty and yourself. I appreciate it.
     
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