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Odd Logic on 2nd Amnd. Right or Left?

Discussion in 'Legal' started by The Grand Inquisitor, Nov 19, 2004.

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  1. The Grand Inquisitor

    The Grand Inquisitor Member

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    I just came across this little article in a somewhat well known journal of ideas and, even though it was short enough for quick 2 minute consumption (you know, the kind of article that say just enough to say nothing at all) and the first 3/4's were pretty blands, this off last paragraph struck me as strange:

    There's really no legal problem with gun control at all. As a legendary sports figure once pointed out, in a different context, "You could look it up." On the other hand, most Americans (56 percent) don't want to, since they now agree with the statement, "Although the Constitution provides the right to bear arms, American society has changed to the point that it is too dangerous for this right to continue as originally written." At this point, the NRA might want to consider putting the front end of that amendment back up at headquarters. It could be worse.

    American society is too dangerous to allow citizens to own weapons? Getting past the little issues about street crime and what not, this seems like a strange bit of reasoning in a time when piss-poor answers like "because this is a dangerous situation we need to curtail these fundamental rights".

    One of the biggest problems the intellectual class has with the current administration is that the administration has used terrorism and fear mongering to make people believe that it is better for them to give up their right to privacy (e.g. the Federal government able to access health, library records easily) and personal freedoms. I personally hold this view, but this isn't the point.

    What my point is is that it is frightening to those of us who value our right to privacy that both sides of the political spectrum have decided to use the same logical formulas on different subjects to reach the same goals.

    I'll make the question easy: The quote is out of Mother Jones (I'll copy the whole article at the bottom), a rarely interesting left leaning ideas rag that would be considered a journal worth reading if it tightened up its limp wrist. The so called "left" (which died about 15 years ago in this country) which currently prides itself on fighting for rights against the deranged and dangerous Bush administration is using the exact same tactics, but only to get their goals across.

    People are not smart enough to own weapons. Therefore they should not have them.

    ------------------------------------

    Emblazoned across the front of the NRA headquarters in Washington, D.C., is half of this amendment--the second half. It's a testament to how well the NRA does its job that most Americans probably don't know about the first half, with its clunky and inconvenient dependent clause. But that's how the Founding Fathers wrote it. The NRA's reasons for focusing on its backside are fairly obvious, but what do the courts say about the Second Amendment?

    According to Jon S. Vernick and Stephen P. Teret of Johns Hopkins University Injury Prevention Center, the Supreme Court has examined two broad issues involving the amendment's reach. The first is whether the amendment controls federal law only or whether it also can be extended to the state and local levels. The second is whether it protects individual rights to own firearms, or only collective, "militia" rights.

    On the first question, the Court ruled definitively in United States v. Cruikshank that the amendment "means no more than (the right to keep and bear arms) shall not be infringed by Congress." This 1876 ruling established that states and localities are not prevented from enacting their own gun-control laws--and they remain free to do so to this day.

    In 1886, in Presser v. Illinois, the Court reaffirmed the concept of a state's rights, as it were, to control guns, and this position has never been modified. Therefore, it re-mains the Court's last word on the subject. Lower courts have time and again held to this precedent.

    Regarding the second broad question of individual versus state-militia rights, the Court held in its 1939 United States v. Miller decision that individuals have in effect no right to keep and bear arms under the amendment, but only a collective right having "some reasonable relationship to the preservation or efficiency of a well-regulated militia." Lower courts have consistently applied the Miller decision in upholding various gun-control laws over the years.

    The Supreme Court most recently revisited this question in 1980, when it reconfirmed that "these legislative restrictions on the use of firearms do not trench upon any constitutionally protected liberties." One significant part of that case is that then Chief Justice Burger and current Chief Justice Rehnquist both supported that interpretation. Burger has denounced the NRA's edited version of the amendment as a "fraud."

    The legal precedents are clear: Almost any state or local gun-control action is fine; the Second Amendment does not apply. On the federal level, only laws interfering with state militias are prohibited.

    There's really no legal problem with gun control at all. As a legendary sports figure once pointed out, in a different context, "You could look it up." On the other hand, most Americans (56 percent) don't want to, since they now agree with the statement, "Although the Constitution provides the right to bear arms, American society has changed to the point that it is too dangerous for this right to continue as originally written." At this point, the NRA might want to consider putting the front end of that amendment back up at headquarters. It could be worse. . What do you think?
     
  2. Graystar

    Graystar Member

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    I'm sorry...what was the question?
     
  3. Jim March

    Jim March Member

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    Presser v. Illinois is mentioned.

    You know what that means?

    Yup. Take a deep sniff. Smell it?

    It's the distinctive odor of male bovine product.

    Here's why. Presser doesn't say a damn thing new regarding gun control. All it does is re-state a previous case to support the proposition that a state can do gun control.

    The problem is, the previous case is Cruikshank.

    Cruikshank is arguably the single most racist desicion in US Supreme Court history. And that's saying a lot, but it's true. It makes Dred Scott look *reasonable* in comparison :eek:.

    Here's the full text of Cruikshank (1875):

    http://laws.findlaw.com/us/92/542.html

    Here's the US Congressional website's commentary on Cruikshank:

    Now here's Presser (1886):

    http://laws.findlaw.com/us/116/252.html

    Go ahead. Lookit what it really says about RKBA:

    As you can see, Presser is just a "Cruikshank re-hash".

    Hell, it gets worse: note the reference to Barron v. Baltimore? That case (1833 I think?) was specifically overturned by the 14th Amendment - John Bingham said so personally and that's now generally accepted wisdom by the courts. Barron said that states can violate any and all portions of the Bill Of Rights - it stemmed from a case where the city of Baltimore MD screwed up some guy's boat docks and didn't want to pay for damages or the taking.

    Both Presser and Cruikshank stem from the worst period of US Supreme Court jurisprudence, running from 1872 (Slaughter-House cases) through at least 1898 and the infamous "separate but equal" Plessy v. Fergusen :barf:.

    Here's how bad it got: see if you can stomach Williams v. Mississippi:

    http://laws.findlaw.com/us/170/213.html

    :fire:

    The fact that the gun-grabbers are forced to go back to this period to support their arguments is a powerful condemnation of said arguments, if you understand where this leads.
     
  4. Langenator

    Langenator Member

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    Of course, they're mis-reading Miller as well...since Miller really just decided that short-barreled shotguns had not been shown to have any military/militia use, and thus could be regulated by the government. It didn't say that the RKBA belonged with the states.

    The other problem with citing Criukshank and Pressing is that at the time, SCOTUS had not ruled that the 14th applied any of the BoR to the states at that time. Since then, the Second and (why can't I remember the number?) the one about quartering troops in homes are the only ones that haven't been applied to the states through the 14th.
     
  5. Jim March

    Jim March Member

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    Exactly re: the 14th Amendment.

    Look, the 14th was put in place specifically to overturn two USSC cases: Barron and Dred Scott. Between 1872 and 1900 or a bit more, the USSC basically (in response to the 14th) stuck their fingers in their ears and went "LAAA LA LA, WE CAN'T HEEEEAAAR YOU!!!" with regards it's intent. They gutted ALL of it - equal protection, protection from state BoR abuses, the works.

    We've gotten *part* of it back in the 20th century, piece at a time, under that goddamn "selective incorporation" horsecrap :fire:.

    Funny...they still haven't "selectively incorporated" the 2nd Amendment yet...the last major piece missing :cuss:.
     
  6. Phantom Warrior

    Phantom Warrior Member

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    The Third...
     
  7. StandOnGuard

    StandOnGuard Member

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    IIRC, there was debate over whether RKBA was more of an enlightenment interest or a republican one, in the early days of the US. Folks like Jefferson would argue that Citizens should not be prohibited from bearing arms for self-defence, while a republican would argue the necessity of an armed militia for national defence (militia in the general sense). The latter interpretation would be more so open to abuse, by limiting the militia to a state-controlled membership.

    The article from which I gleaned the above information then concluded that it was really a bit of both schools of thought, that contributed to the 2nd Amendment.
     
  8. Don Gwinn

    Don Gwinn Moderator Emeritus

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    I could swear that the introductory piece about the "second half of the amendment" is lifted word for word (or very nearly) from somewhere else, but I can't think where I saw it.
     
  9. Art Eatman

    Art Eatman Administrator Staff Member

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    Ignoring laws and court decisions and speaking only to the thought patterns of the anti-Second Amendment people:

    The BOR is a package of restraints against abuse of power on the part of "the State". It says so in the preamble to the BOR.

    My first question is, how can restraints on the central government also be restraints on the citizenry as a whole or on individual citizens?

    My second question is, why would the people who wrote the BOR use different meanings for the same word? If "the people" means individuals in one amendment, I don't understand how can it be different--collective--in another. After all, the writers have been lauded for the high quality of their literary competency.

    Last, why would one ignore the views expressed in writings on the subject of the BOR when these views are those of the people who wrote it? Do these not provide explanatory material as to the intent? If not, how not?

    I've asked these questions of the gun-grabber crowd since the "warfare" over the GCA of 1968. I have yet to receive a rational answer beyond, "Art, you don't understand."

    Yup.

    Art
     
  10. Graystar

    Graystar Member

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    Art, you don't understand.

    (Sorry, just couldn’t resist! :p)


    It says no such thing. Here it is...

    It clearly states that the Bill of Rights is a restraint to the powers delegated by the Constitution. That is, a restraint to the federal authority.


    The answer is in the very definition of a bill of rights. A bill of rights is an explicit expression of restrictions that would have still existed implicitly even if the expression were never made. That is to say...a bill of rights doesn’t add anything...it simply states what already is. We have a natural right to self-expression and self-defense, even if it isn’t written anywhere, and even if no government existed. As such there is an implicit restriction upon all persons and organizations against violating those rights.

    For example, the government is restrained against seizing your property (without due process.) That same restraint is held against individual citizens as well (the crimes of robbery and larceny.)

    As violations of our rights can occur at different levels, so does defense of those rights. When individuals seek protection from rights violations by other individuals (as in the case of a burglary) individuals look to the state government. When individuals seek protection from rights violations by the state (as in the case of laws that intrude upon privacy) then individuals look to the federal government.


    You can bear a load on your back, and you can bear a grudge. There are many, many examples of words that are used in different ways within variants of their meaning. Personally, I view the Constitution as being written in legalese, but as you guys love to say...the Constitution is written in plain language...and plain language is not precise. As such, it is very possible that the meaning of “the people†is slightly different between its uses in the First and Second Amendments.

    Remember, the only time there is a reference to “the People†in the Constitution is in the choosing of Representatives, which is, by its very nature, a collective process.


    I don’t…so I can’t answer that one!
     
  11. Michigander

    Michigander Member

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    And this is (was) the only instance of each individual person having one vote. Here again, "the People" are individuals.

    In Amendment I, it states that "Congress shall make no law..." whereas in Amendment II Congress is not mentioned at all. If Amendment II was only a restriction on Congress, then why state it in Amendment I and not Amendment II?
     
  12. ReadyontheRight

    ReadyontheRight Member

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    Comes from this piece of drivel:

    http://www.motherjones.com/news/special_reports/1994/01/nra.sidebar.html

    The Second's Missing Half

    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.

    By Second Amendment, U.S. Constitution

    January/February 1994 Issue

    Emblazoned across the front of the NRA headquarters in Washington, D.C., is half of this amendment--the second half. It's a testament to how well the NRA does its job that most Americans probably don't know about the first half, with its clunky and inconvenient dependent clause. But that's how the Founding Fathers wrote it. The NRA's reasons for focusing on its backside are fairly obvious, but what do the courts say about the Second Amendment?

    According to Jon S. Vernick and Stephen P. Teret of Johns Hopkins University Injury Prevention Center, the Supreme Court has examined two broad issues involving the amendment's reach. The first is whether the amendment controls federal law only or whether it also can be extended to the state and local levels. The second is whether it protects individual rights to own firearms, or only collective, "militia" rights.

    On the first question, the Court ruled definitively in United States v. Cruikshank that the amendment "means no more than (the right to keep and bear arms) shall not be infringed by Congress." This 1876 ruling established that states and localities are not prevented from enacting their own gun-control laws--and they remain free to do so to this day.

    In 1886, in Presser v. Illinois, the Court reaffirmed the concept of a state's rights, as it were, to control guns, and this position has never been modified. Therefore, it re-mains the Court's last word on the subject. Lower courts have time and again held to this precedent.

    Regarding the second broad question of individual versus state-militia rights, the Court held in its 1939 United States v. Miller decision that individuals have in effect no right to keep and bear arms under the amendment, but only a collective right having "some reasonable relationship to the preservation or efficiency of a well-regulated militia." Lower courts have consistently applied the Miller decision in upholding various gun-control laws over the years.

    The Supreme Court most recently revisited this question in 1980, when it reconfirmed that "these legislative restrictions on the use of firearms do not trench upon any constitutionally protected liberties." One significant part of that case is that then Chief Justice Burger and current Chief Justice Rehnquist both supported that interpretation. Burger has denounced the NRA's edited version of the amendment as a "fraud."

    The legal precedents are clear: Almost any state or local gun-control action is fine; the Second Amendment does not apply. On the federal level, only laws interfering with state militias are prohibited.

    There's really no legal problem with gun control at all. As a legendary sports figure once pointed out, in a different context, "You could look it up." On the other hand, most Americans (56 percent) don't want to, since they now agree with the statement, "Although the Constitution provides the right to bear arms, American society has changed to the point that it is too dangerous for this right to continue as originally written." At this point, the NRA might want to consider putting the front end of that amendment back up at headquarters. It could be worse.

    :barf:
     
  13. ReadyontheRight

    ReadyontheRight Member

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    Um...in response to the original question:

    LEFT.
     
  14. Standing Wolf

    Standing Wolf Member in memoriam

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    There are just too many commoners nowadays for us better people to trust them with guns.
     
  15. R.H. Lee

    R.H. Lee Member

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    Doesn't that statement contradict itself?
     
  16. Jim March

    Jim March Member

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    Just sent this off to the "Backtalk" link for that article at the Mother Jones site:

    --------------

    I have a deep concern with the article at:

    http://www.motherjones.com/news/special_reports/1994/01/nra.sidebar.html

    The article cites the Cruikshank case (US Supreme Court 1875), and correctly portrays Presser (also USSC, 1886) as a "reaffirmation" (your term) of Cruikshank. In this, you're much more honest than most anti-self-defense scholars who cite to Presser and ignore Cruikshank as the underpinnings.

    There's a reason they do that, a reason I *hope* you're ignorant of:

    Cruikshank holds the distinction of being possibly the single most racist US Supreme Court decision in history.

    Some background:

    Shortly after the passage of the 15th Amendment giving blacks the vote, blacks in Colfax Louisiana tried to do just that. State and local law enforcement launched an immediate roundup of the guns of the black community; the moment that was done these same local and state government agents allied with the local Klan launched three days of murder, riot, arson and mass rape against the black population, ending only when Federal troops were sent in to restore order.

    A large group of the worst rioters, many state and local government agents, were tried in Federal court on charges of violating black civil rights, specifically the right to peaceful assembly under the 1st Amendment, the right to vote under the 15th, the right to bear arms under the 2nd.

    The Supreme Court's ruling was that the Federal government had no ability to protect these civil rights from state actions. This was one of a series of cases gutting the 14th Amendment, destroying Federal oversight of equal protection, due process and the like. Other cases in line with the Cruikshank ruling were Plessy v. Fergusen, the infamous "separate but equal" ruling enshrining segregation for generations, and Williams v. Mississippi 170 U.S. 213 (1898) protecting obvious minority disenfranchisement.

    Let's be clear now: the portions of Cruikshank that allowed states to harm voting rights and first amendment rights have LONG since been overturned, but the part about states disarming people EVEN FOR THE EXPRESS PURPOSE OF MURDERING THEM is just fine by you?

    What in God's name in the matter with you people? How could Mother Jones Magazine be infiltrated that deeply by the Klan, in *2004*?

    Think I'm nuts? The US Congress has an official website on congressional history. Here's what they have to say about Cruikshank:

    ------------------
    The Supreme Court decided the case of United States v. Cruikshank in 1876. The case grew out of a brutal massacre of blacks in the little Louisiana town of Colfax.

    In Colfax whites burned the court house and murdered an unknown number of blacks. After the U.S. Army restored order, a federal grand jury indicted 72 white men. The United States Attorney brought nine to trial and won a conviction against William Cruikshank and two others.

    Normally the federal government does not prosecute persons charged with murder. Control of ordinary crime has traditionally been the job of the states. In this case the U.S. Attorney used the 1870 Enforcement Act. This law makes it a crime for two or more persons to band together with intent to injure, oppress, threaten, or intimidate any citizen.

    The Supreme Court threw out the convictions of Cruikshank and his cohorts. As it had in the Slaughterhouse Cases, the Court acted to protect states' power. "Every republican government," Chief Justice Morrison Remick Waite wrote, "is in duty bound to protect all its citizens." He then added, "That duty was originally assumed by the States; and it still remains there."

    http://www.constitutioncenter.org/sections/history/19th.asp
    ------------------

    Hmmm...I just checked that link. They took it down. Gee, I wonder why? Maybe because it helps destroy one of the key underpinnings of all gun control in the US?

    Sigh.

    Arright. Forget history. Let's go modern - at least to 2003. That's the latest year the California DOJ publishes county-by-county statistics on how many gun carry permits are issued in each California county.

    http://caag.state.ca.us/firearms/forms/pdf/ccwissuances.pdf

    In California, these "Carry Concealed Weapons" (CCW) permits are issued at the "personal discretion" of Police Chiefs and Sheriffs - they get to personally decide who gets the "right" to defend their life.

    When we cross-reference permit issuance with county racial demographics, we get a startling correlation: if you live in a California county with less than the state average black population, your odds of having a permit (regardless of your race) is six times higher than the rate for residents of counties with more than the state average black population.

    http://www.equalccw.com/CCWDATA2003.html

    The "logic" of Cruikshank is most definately still in effect. For similar reasons and with "morality" just as questionable.

    By *God* are you guys ever in the wrong here.

    Jim March
    Equal Rights for CCW Home Page
    http://www.equalccw.com
     
  17. DRZinn

    DRZinn Member

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    A masterpiece, Jim.
     
  18. Jim March

    Jim March Member

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    Well THAT is how you get a leftie's attention on the RKBA, if they give you an opening that obvious.
     
  19. Michigander

    Michigander Member

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    Bravo Jim! Bravo!
     
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