The 2nd Amendment protects the right to own Weapons of War, no?

Discussion in 'General Gun Discussions' started by Aim1, Feb 26, 2018.

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  1. barnbwt

    barnbwt member

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    Energy weapons arguably have more protection at this point, i.e. the recent ruling protecting TAZER devices
     
  2. Danoobie

    Danoobie Member

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    So, how do the fire selectors work on the AR's, according to many, there's:

    -Fully Automatic
    -Automatic
    -Fully Semi Automatic
    -Semi Automatic
    -Fully Single Fire
    -Single Fire
    -Safe

    SEVEN positions on the fire selection switch. Honestly, I feel SO RIPPED OFF. Both my COLT AR15s have only "FIRE" and "SAFE", as fire selector positions...
     
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  3. Flechette

    Flechette Member

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    Actually, it isn't a crime to yell "fire" in a crowded theater...if there is indeed a fire.

    The whole question revolves around whether the speaker has criminal intent. If the intent is to cause calamity and possibly get people hurt, then yelling "fire" is a crime.

    But if the intent is to actually save people from burning, then it is not.

    By the same token, if you intentionally lie and sell someone a product that is not what you say it is, it is not the words you use that are illegal, it is the fraud.
     
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  4. harrygunner

    harrygunner Member

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    We are a Constitutional Republic so as not to be swayed by "what the people want". In the sense that "the people" can lose sight of lessons through history and not grasp sophisticated reasoning.

    Unfortunately, rather than a solidly anchored post in shifting sand, the Constitution is document.

    The people eroding its power are what it was designed to protect us from.
     
  5. Frank Ettin

    Frank Ettin Moderator Staff Member

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    And you don't understand the scope and extent of the constitutionally permissible regulation of the rights protected by the First Amendment. The First Amendment provides (emphasis added):

    There is a long history of couts sustaining laws (both federal lawa and, after the First Amendment began to be held applicable to the States through the Due Process Clause of the Fourteenth Amendment, state laws) regulating (and thus abridging) rights protected by the First Amendment. A few examples are:
    • Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech.

    • If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech.

    • Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. See, for example:

      • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

        • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)

        • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):

      • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

    • In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.

      But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

    • In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

    Similarly, disagreement about the meaning and application of the Second Amendment, and the permissibility of a regulation of the the rights protected by the Second Amendment, will be a matter for the federal courts, as the Founding Fathers intended and provided for in the Constitution (Article III, Sections 1 and 2):
     
  6. CapnMac

    CapnMac Member

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    "...[E]very terrible implement of the Soldier..."
     
  7. edwardware

    edwardware Member

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    Yes, exactly! Where does that come from please?

    I was referring to likely future developments of lethal energy weapons, i.e. laser, microwave, milliwave, EMF, railguns (thanks @NIGHTLORD40K), etc.

    Until stun guns are good enough to replace lethal weapons in warfare, they don't count; once we remove death from warfare, it won't really be 'war' any more.
     
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  8. NIGHTLORD40K

    NIGHTLORD40K Member

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    Indeed, Feinsteins latest AWB defines assault weapons as using the chemical energy of combustible gas to operate their mechanisms. Doesn't say anything about directed energy or ferrous projectiles pushed by energized coils or rails.....:neener:
     
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  9. Steve S.

    Steve S. Member

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    The 2A allows the people the ability to forcefully protect themselves from tyranny - which includes a Supreme Court and the nine robes. In my mind, this court “supremacy” is in the best position to incrementally change our constitutional protections over time - it is the “government” to be most feared.
     
  10. CapnMac

    CapnMac Member

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    Tench Coxe:
    Another good one:
    Amen.
     
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  11. lindy

    lindy Member

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    Notable quotes by US founding fathers et al.
    Quotes that can establish that there was good reason why the 2nd Amendment of the US Constitution was written the way it was, & the thoughts of some of the founding fathers of the USA/America on why it was included and a part of the US Bill of Rights.

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

    “A free people ought not only to be armed, but disciplined…” – George Washington, First Annual Address, to both House of Congress, January 8, 1790

    “No free man shall ever be debarred the use of arms.” – Thomas Jefferson, Virginia Constitution, Draft 1, 1776

    “I prefer dangerous freedom over peaceful slavery.” – Thomas Jefferson, letter to James Madison, January 30, 1787

    “What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.” – Thomas Jefferson, letter to James Madison, December 20, 1787

    “The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776

    “A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.” – Thomas Jefferson, letter to Peter Carr, August 19, 1785

    “The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.” – Thomas Jefferson, letter to John Cartwright, 5 June 1824

    “On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed.” – Thomas Jefferson, letter to William Johnson, 12 June 1823

    “I enclose you a list of the killed, wounded, and captives of the enemy from the commencement of hostilities at Lexington in April, 1775, until November, 1777, since which there has been no event of any consequence … I think that upon the whole it has been about one half the number lost by them, in some instances more, but in others less. This difference is ascribed to our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy.” – Thomas Jefferson, letter to Giovanni Fabbroni, June 8, 1778

    “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” – Benjamin Franklin, Historical Review of Pennsylvania, 1759

    “To disarm the people…s the most effectual way to enslave them.” – George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adooption of the Federal Constitution, June 14, 1788

    “I ask who are the militia? They consist now of the whole people, except a few public officers.” – George Mason, Address to the Virginia Ratifying Convention, June 4, 1788

    “Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.” – Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

    “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” – James Madison, Federalist No. 46, January 29, 1788

    “The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.” – James Madison, I Annals of Congress 434, June 8, 1789

    “…the ultimate authority, wherever the derivative may be found, resides in the people alone…” – James Madison, Federalist No. 46, January 29, 1788

    “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” – William Pitt (the Younger), Speech in the House of Commons, November 18, 1783

    “A militia when properly formed are in fact the people themselves…and include, according to the past and general usuage of the states, all men capable of bearing arms… “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” – Richard Henry Lee, Federal Farmer No. 18, January 25, 1788

    “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.” – Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778

    “This may be considered as the true palladium of liberty…. The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” – St. George Tucker, Blackstone’s Commentaries on the Laws of England, 1803

    “The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one-half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves.” – Thomas Paine, “Thoughts on Defensive War” in Pennsylvania Magazine, July 1775

    “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788

    “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” – Joseph Story, Commentaries on the Constitution of the United States, 1833

    “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty …. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” – Rep. Elbridge Gerry of Massachusetts, I Annals of Congress 750, August 17, 1789

    “For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” – Alexander Hamilton, Federalist No. 25, December 21, 1787

    “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.” – Alexander Hamilton, Federalist No. 28

    f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.” – Alexander Hamilton, Federalist No. 28, January 10, 1788

    “As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” – Tench Coxe, Philadelphia Federal Gazette, June 18, 1789
     
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  12. 4v50 Gary

    4v50 Gary Moderator Staff Member

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    The whole purpose of the Second Amendment was to reserve in the people the ability to fight a tyranny. Nowhere did founding fathers state it was to kill wascally wabbits or daffy ducks.
     
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  13. Danoobie

    Danoobie Member

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    ^^^^^^^^^^^^^^^^^^^^^^^^^^
    Good point. Which, by extension, paints the NRA in the light of waffling, rather than clearly stating
    "We are here to support the 2A- for the express purpose for which it was intended".
     
  14. CapnMac

    CapnMac Member

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    It may be germane to point out how the British raised armies in the late 1700s.

    The "King's Army" dates to about 1660, as a core force of career military men under career officers. This was a skeleton upon which the ret of the army was raised. (The King's Army was dissolved during Cromwell's time; and raised again during the Restoration, becoming the Royal Army in 1707.)

    Dating back to the oldest days (circa Magna Carta), nobles were required to be able to raise troop forces from within their fiefs, at a scale to those fiefs, at the command of the King. So, a Squire would need to be able to raise a platoon. A knight, a company. A Viscount a battalion. An Earl, a regiment. And so on. During Elizabeth I's reign, the nobles were allowed to hire men to stand in for their needed serfs and villeins. Because the troops were stood up for so long, the Queen had the Exchequer pay the nobles for their displaced yeomen's time away from hearth and home. Which is where the time-honored tradition of military Roll Calls ws invented. To be paid, the troops had to be accounted for.

    Now, in arming these "militias" (to use the term in its British sense) they were taken to an armory and issued out weapons to their skillsets. Which was largely pikes. They would get such armor as was available, too. This was slightly more sophisticated by the time of the later wars with the French. In the 1700s, the nobles were expected to uniform their vassals as well. The needs of Continental warfare saw the Royal Army ranks swell, and the militia numbers decline. Even to the point of the King having his German nobles raise their troops in Hess and send them to serve in the Wars. Once a war was done, the militias were expected to return their arms and armor to the armories and to take up their dutie as yeomen, serf, or villein. Where their master had the right of high justice over them.

    Colonial Americans saw a standing army as a group which could force enlistment, and keep you "at the King's leisure," or the duration. Militias were raised up and expected to ere alongside regular troops whenever war was declared. In Colonial America, the shackles of feudal nobility had been largely cast aside, or not established to any degree. So, militia service was something that went in hand with being on the frontier.
     
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  15. AlexanderA
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    AlexanderA Member

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    I would add that the original American militia system (as envisaged by the Founders) was rather quickly found to be unworkable, and it disappeared by at the latest the 1830's. (Its place was taken by volunteer units.) Nevertheless, it remains to this day as a conceptual framework around which rights can be secured.
     
  16. buck460XVR

    buck460XVR Member

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    It is this part of the Constitution that gives rise to what rights have priority. Does the right to own a firearm, any type of firearm, including weapons designed for war, trump the right of a young school student to live, to be able to go to school freely and to be happy and without fear while they are there?

    I've been a gun enthusiast for over half a century, and I'm not advocating any form of gun controls, just trying to spark conversation....intelligent conversation, not just the same old, worn out rhetoric of quoting the 2nd. I've read here and on other gun forums, statements that claim if we want to enjoy our freedoms, we have to accept mass shootings like those in Las Vegas and Florida as a fact of life. That's easy to say when you're an old man fearing dementia and you don't want your soccer mom daughter taking your guns away, but what about those parents that have to send their young children to school everyday?

    Part of gun ownership is being responsible. Is there a point where we stop being responsible by making firearms too easy to get? I myself ponder this. Years ago folks would openly display their guns in an open gun rack or gun cabinet. Easy access to those firearms has changed most of our minds and we now keep them locked in a safe. This has proved to greatly reduce accidental and intentional shootings. Such a simple thing. Not so simple once those guns are out of our home and our control.

    Again, I ain't advocating any new form of gun control, so don't shoot the messenger. As a matter of fact, I'm really being torn between my convictions on the second vs the lives of innocent victims. I see all kinds of statements made here about "stupid and idiotic" measures taken by folks in an attempt to curb these atrocities, but I have seen very little if any legitimate alternatives, other than just accepting the fact that innocent children will continue to die. Is there any legitimate way to keep our guns and to keep our children and other innocents safe?
     
  17. ofitg

    ofitg Member

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    Sorry, this world is an inherently dangerous place. Between 2005-2014, more than 100 school bus occupants were killed in highway accidents -

    http://www.governing.com/gov-data/safety-justice/school-bus-crashes-fatalities-map.html

    During the same time period, less than 70 were killed in school mass shootings.

    Since the thread title cites "Weapons of War", I would add that 43 years ago a Communist regime seized power in Cambodia and subsequently murdered 2 million civilians (roughly 25% of the country's population). Around the world, there have been a number of other government-sponsored genocides in recent history. A well-armed, "military capable" population is our best guarantee that such a thing would never happen here.
     
    Last edited: Mar 3, 2018
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  18. MTMilitiaman

    MTMilitiaman Member

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    The purpose of the Second Amendment is not sporting. It exists so the government can not obtain a monopoly of violence over the American people.

    Here is a letter written in 1812 by President James Madison commissioning the use of a private owned ship equipped with privately owned cannon. James Madison does not recommend confiscation of the weapons first, due process second. In fact, he seems not only okay with civilians owned cannons, he seems to condone it by hiring the guy to use the cannons against the British:

    James Madison, President of the United States of America,
    To all who shall see these presents, Greeting:

    BE IT KNOWN,That in pursuance of an act of congress, passed on the 26th day of June one thousand eight hundred and twelve, I have Commissioned, and by these presents do commission, the private armed Brig called the Prince Neufchatel of the burden of three hundred & Nineteen tons, or thereabouts, owned by John Ordronaux & Peter E. Trevall of the City & State of New York and Joseph Beylle of Philadelphia in the State of Pennsylvania Mounting eighteen carriage guns, and navigated byone hundred & twenty nine men, hereby authorizing Nicholas Millin captain, and William Stetsonlieutenant of the said Brig and the other officers and crew thereof, to subdue, seize, and take any armed or unarmed British vessel, public or private, which shall be found within the jurisdictional limits of the United States, or elsewhere on the high seas, or within the waters of the British dominions, and such captured vessel, with her apparel, guns, and appurtenances, and the goods or effects which shall be found on board the same, together with all the British persons and others who shall be found acting on board, to bring within some port of the United States; and also to retake any vessel, goods, and effects of the people of the United States, which may have been captured by any British armed vessel, in order that proceedings may be had concerning such capture or recapture in due form of law, and as to right and justice shall appertain.

    The said Nicholas Millin is further authorized to detain, seize, and take all vessels and effects, to whomsoever belonging, which shall be liable thereto according to the law of nations and the rights of the United States as a power at war, and to bring the same within some port of the United States, in order that due proceedings may be had thereon.
    This commission to continue in force during the pleasure of the president of the United States for the time being.

    GIVEN under my hand and seal of the United States of America, at the City of Washington, the twelfth day of December in the year of our Lord, one thousand eight hundred and fourteen and of the independence of the said states the thirty ninth.

    BY THE PRESIDENT James Madison
    Jas. Monroe Secretary of State.
     
  19. MTMilitiaman

    MTMilitiaman Member

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    My right to own an AR-15 has nothing to do with the lives of school children. I am not shooting up schools and my guns have killed no one.

    My grandpa bought a Winchester 30-30 from the local drug store on credit at age eleven and stored it at his high school when he and his friends intended to go out into the woods after school. This was in Seattle. Guns and teenage angst has always been a thing in this country. Mass shooting events have not. So what has changed in the last 25 or 30 years that have made these tragedies such a part of our lives. Certainly teens having access to guns is nothing new. So what is?
    ADHD was voted into existence in the 3rd Edition of the DSM in 1987, I believe. Over the course of the next decade, it becomes increasingly acceptable to see kids pumped full of different behavior modification drugs, and school shootings double. So one part of it is the drugs I believe. That is one thing many of these shooters have in common. The other is fatherless homes. Boys are not being raised to be men. They increasingly have few male role models and almost no positive ways to express their developing masculinity.
    People focus on the guns and the bullying, and I think this is too simplistic and makes no sense. Guns have always been here, as has bullying. Bullying behavior is natural in every single social animal, and we are never going to be rid of it. Instead, we need boys raised to be men by men so that they can face adversity, bullying, and alternate view points without safe spaces, snowflake melt downs, and without feeling entitled to riot or shoot up a school. That's my two cents.

    But my guns and my rights have nothing to do with school shootings and making the assumption that for me to compromise on my rights will somehow make either myself or others safer is gravely erroneous.
     
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  20. General Geoff

    General Geoff Member

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    First off, K-12 is mostly compulsory. Nothing free about that.
    Secondly, there is a right to the pursuit of happiness, not a right to happiness itself.
    Thirdly, there is no right to be unafraid anywhere, school or no school.

    I don't understand where this idea of "emotions as rights" ever came from.
     
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  21. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Except that's not a part of the Constitution. That is from the Declaration of Independence. While the Declaration of Independence is part of the founding documents of our nation, it does not actually operate as legal authority.
     
  22. caribou

    caribou Member

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    I quoted the Preamble to the Declaration of Independance because it was written to explain why the Colonies were breaking off, forming their own govornment and why. It lays down the ''why' to the Declaration of Independece, which lists the intolerable acts that brought it about.
    Its basicly a delaration of war over the mishandling of English subjects by their own govornment. Gun control was part of the oppression, along with taxation and unfair imprisonment, etc.etc..
    And along came the fight at Concord and the 'Shot hear 'round the world.'

    Thats what my jist was, and these words, from the Preamble of the Declaration of Independance to the last word in our Constitution stand forever as principals, not emotions or arguments.

    If our servents in public office need be shirked or replaced, violently, to ''throw off the yoke of tyrrany'' than thats the document that explains why.
     
  23. CapnMac

    CapnMac Member

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    Sadly, though, that just obfuscates the present discourse.

    Whether or not the Constitution guarantees life, liberty, or the pursuit of happiness is something very serious Constitutional scholars cannot agree upon. Which means there's no clear way to make a case from any presumption thereby.

    It's far better to frame our arguments from only the Constitution, as it is the settled law of the land (matters of interpretation notwithstanding). In our rhetoric, we have more than enough pathos propounded--and in histrionic emoting--we need to cleave to logos. That if we start with apples, we stay with apples, and not go astray with oranges, pomegranates, or even pineapples.
     
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  24. SouthernBoy

    SouthernBoy Member

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    This is true and the reason for this ruling was Jack Miller didn't not show up at court and I don't believe his attorney did either because his client was nowhere to be found. Therefore, there was no knowledgeable person to argue that shotguns were, in fact, useful tools as shoulder arms in the military, hence their final ruling.
     
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  25. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Well, in framing our arguments we might look beyond the Constitution to include the relevant case law interpreting and applying the Constitution. But otherwise, your observation is completely apt.

    The thread has meandered far and wide through several alternate realities, and folks have outlined all sorts of reasons why the Constitution means what they think it means. But they all have pretty much avoided the one source of knowledge that actually means anything in real life term -- relevant case law. That reflects how the Constitution is put to work to affect the lives and property of real people in the real world.

    The reality that what the folks here think the Constitution means and how it applies doesn't count in real life in the real world.

    The Founding Fathers assigned the job of deciding what the Constitution means and how it applies to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

    The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

    What our Constitution states and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

    So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. 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 -- 178):

    It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.
     
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