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Why do people assume Congress CAN ban Arms?They can't!

Discussion in 'General Gun Discussions' started by joeschmoe, Jan 6, 2013.

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  1. gc70

    gc70 Member

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    Who said people assumed that Congress would take any action under the Second Amendment? Congress was not even that naive in 1934.

    Look at the bills being proposed and you will see that they all cite the commerce clause or Congress' taxing power. (H.R.21 - Background Checks and H.R.138 - Large Capacity Ammunition Feeding Devices both cite the commerce clause)
     
  2. anchorman

    anchorman Member

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    those "thousands" wishing to secede are just that. thousands, in a country of hundreds of millions. many of them signing petitions for states they don't even live in. All of them treasonous, regardless. don't get your hopes up.
     
  3. gc70

    gc70 Member

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    Everyone should read The Peculiar Story of United States V. Miller to understand how the constitutionality of the NFA was upheld and the Second Amendment was buried for more than half a century. Miller was indicted and tried to plead guilty but the judge would not let him; then the judge dismissed the indictment and declared the NRA unconstitutional (in all of one sentence, no less) in what was widely believed to be an effort to create a test case for SCOTUS. The case went to SCOTUS, where Miller's public defender did not show up or file a brief (but was shortly appointed to the State Senate) and the government predictably prevailed.
     
  4. anchorman

    anchorman Member

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    Great links, GC70. Thanks!
     
  5. michaelbsc

    michaelbsc Member

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    Our system of apportionment for seats drives us to two parties, unfortunately.

    http://en.wikipedia.org/wiki/Duverger's_law

    http://www.corvallisadvocate.com/2012/1101-multiparty-vs-two-party/

    http://rangevoting.org/Duverger.html
     
  6. dom1104

    dom1104 Member

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    Wow I wish I had that sort of trust in the government to do whats right.

    Our constitution has been run over so many times it is meaningless in modern life.

    We are at the whim of big money in Washington.

    Good thing the NRA is some serious big money.
     
  7. 303tom

    303tom member

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    Right on Joe..............
     
  8. GoWolfpack

    GoWolfpack Member

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    The government doesn't have constitutional authority to do most of the things they do currently. That hasn't stopped them yet, and is unlikely to in the future unless a dramatic shift in the voting patterns of John Q. Public forces them out.
     
  9. joeschmoe

    joeschmoe Member

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    The 2nd is a restriction upon Congress, not a power. The commerce clause is a power given to Congress. The SCOTUS has repeatedly upheld the 2nd Amendment. Congress can't take action "under" the 2nd, or any of the other BOR's.
     
  10. joeschmoe

    joeschmoe Member

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    Yes they do. Congress has broad power to regulate commerce, tax, wage war, etc.
    What specifically did you mean?
    They also have specific restrictions, like the 2nd Amendment.

    The 2nd is a specific restriction upon the broad powers of Congress. It is not void just because the government has broad powers in other areas.
     
  11. joeschmoe

    joeschmoe Member

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    False. You are conceeding the anti's main argument. If they can convince everyone of that then they have won, and our Constitutional Republic would be lost.
    It is not true. The Constitution the supreme law of the land. Always has been, always will be.

    The same document that gives this government it's powers also restricts it. They don't have any powers without the Constitution or without it's restrictions.
     
  12. ezkl2230

    ezkl2230 Member

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    Your argument has one fundamental flaw - it assumes a constructionist interpretation of the Constitution and the limitations it placed on the federal government. The problem is, going all the way back to George Washington, the federal government has held to a federalist interpretation of the Constitution that gives them all the authority they could ever want at the expense of the enumerated rights of the States and the People. And while SCOTUS had more or less upheld limitations on the fed, that will likely change over the next four years because Obama will be appointing 2-3 new justices. You know what that will do to the ideology of SCOTUS.

    From the very beginning of our government a war has been fought.

    On one side stood Jefferson, Madison, and the Anti-Federalists. They believed (indeed, Jefferson and Madison, the two main authors of the Constitution, explicitly worded the Constitution with these goals in mind) in a small, general purpose government with a set of very clearly defined authorities. Having just won a war against a large, centralized government, they were rightfully concerned about the possibility of seeing a similarly all-powerful, centralized government being established in the US - so much so, that when Jefferson and Madison drafted the Bill of Rights (which passed both the US AND State legislatures with a supermajority), they included these words in the Tenth Amendment:

    On the other side stood Washington and the Federalists. They believed strongly in a centralized, all-powerful government (John Adams actually believed the US needed its own king). Washington's own beliefs regarding the correct interpretation of the Constitution were stated in the circular letter he sent to the governors of the states on the eve of his retirement from public office:

    Washington stood for a centralized, all-powerful government, which, according to his letter, required that the People and the States "...forget their local prejudices and policies, to make those mutual concessions which are requisite to the general prosperity, and in some instances to sacrifice their individual advantages to the interest of the Community." Where the Bill of Rights reserved the majority of powers to the People and the States, Washington called on both entities to concede more of those powers and authorities to the federal government whenever the legislature called upon them to do so. To resist such a request or to take steps to limit (or diminish) the supreme authority of the federal government was a crime that "...will merit the bitterest execration [hatred and contempt] and the severest punishment which can be inflicted by his injured Country." In other words, the Tenth Amendment was to be ignored in favor of the Necessary and Proper clause of the Constitution. It was Washington who declared during his retirement speech that revolution as a means of changing a tyrannical government was no longer an option since the founding of our republic:

    The meaning was clear: revolting against a monarchy, as HE had done, was a good thing, but the AMENDMENT was the only proper way to effect change in a republic. By taking revolution off the table as a legitimate means of changing a government that had become so corrupt that it could not be changed by means of legislation or amendments, he also nullified the Second Amendment - which was intended by Jefferson and Madison to be a safeguard against a corrupt and tyrannical government.

    Sam Adams, eventual governor of Massachusetts, was even more blunt in his opinion of revolting against a republic:

    Again, it was justified when THEY were the ones resorting to revolution; for anyone else, revolution constitutes treason. The federalist understanding of the Constitution nullifies the Second Amendment, and with it, the right to bear arms for anything but hunting.

    And since Washington was the first President of the US, who also appointed the first Supreme Court justices, the Federalist interpretation of the Constitution is the one that became the norm for the government. It is the understanding under which our legislature and the President operate to this day, and it is this hijacked interpretation of the Constitution that permits the federal government to confiscate more of the rights that were Constitutionally enumerated to the PEOPLE whenever the urge hits, all in the name of the "Necessary and Proper" clause and national security.

    No, the problem we face today is the direct result of the federalist interpretation of the Constitution that was institutionalized by none other than George Washington himself. That our nation's capitol is named for Washington is appropriate; his interpretation of the Constitution set the stage for what is happening today. The resulting mess is his to own forever. Unless we can find a way to bring our government in line with a constructionist interpretation of the Constitution, they will eventually FIND a way to ban firearms.
     
    Last edited: Jan 7, 2013
  13. joeschmoe

    joeschmoe Member

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    No. This is not a fed vs state issue. The fed has always had plenty of power and restrictions. This is not new territory either. The SCOTUS has repeatedly upheld the 2nd and limited the fed. That is the point of this thread. Feinstein can't get around the 2nd Amendment, she didn't in the last "AWB", and she won't on the next try.
    All this moonbat howling that the Constitution is dead does not jive with history.
    The anti's are the one's claiming the 2nd has no meaning, but the Courts, Congress and history do not support that claim.

    It's as if everyone has already forgotten the Heller and McDonald cases.
     
  14. TNboy

    TNboy Member

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    I can only hope that you are right JOESCHMOE, but my observations are that the gun grabbers don't really care what the Constitution says. They seems to just do whatever they want. Feinstein has already said that she would like to confiscate every gun in America. Although it will not happen anytime soon you see what is on the agenda of these people. There method for depriving us for our arms will be gradual.
     
  15. ezkl2230

    ezkl2230 Member

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    No, I haven't forgotten Heller or McDonald, or the more recent Woollard v. Sheridan appeals court case that actually expanded Heller. I also didn't say it is a fed v state case. I said it is a case of how the Constitution is interpreted. The federal government, under the federalist understanding of the Constitution, doesn't recognize Constitutional limits any longer, and it is just a matter of time before SCOTUS is changed to the point where they also fully support that interpretation as well. It is a question of who frames the debate and the interpretation of the Constitution. The side that frames the debate eventually wins the debate - and the interpretation of the Constitution that will define the federal government. I am the last one to say that the Constitution is dead. However, it is being twisted to say things that were never intended, to give powers that were never enumerated (such as the unConstitutional executive order), and to nullify portions of the Constitution by which the government no longer wishes to be bound without amending it as demanded by the Constitution. That is the reality of the war that is being fought. And unless we can get the government to change its interpretation of the Constitution, it is only a matter of time before it finds a way to give itself all the power it wants.
     
    Last edited: Jan 7, 2013
  16. sessumrd

    sessumrd Member

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    Joeblow...., it isn't about the constitution, as this is violated regularly by our elected officials, where their actions are contested in court regularly. 1 or 2 more liberal Supreme Court appointments and all bets are off, as they will then tell us what the law is... Regulation....tax....regulation....tax...sound familiar...??
     
  17. dom1104

    dom1104 Member

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    You live in a very secure black and white world joeschmoe.

    It would be great if real life worked out that way.

    Once a few more years go by, we all get a little older, and a few more SCOTUS justices are appointed by Obama, you will see just how inconsequential the constitution is to those in power.
     
  18. joeschmoe

    joeschmoe Member

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    Did you actually read any of Heller?
    Where do you guys get this stuff?

    "Held:

    1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

    (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

    (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28
    "

    http://www.law.cornell.edu/supct/html/07-290.ZS.html
     
  19. Guilty

    Guilty Member

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    I don't think any type of gun ban or magazine capacity ban can pass Congress easily. I do think that we have a President that believes he is above the law. I would not put it past the Obama administration to somehow use Presidential Executive Order to create a gun ban or magazine capacity ban.

    Here is my argument. If the President issues an Executive Order, it would take an act of Congress to refute the Executive Order or the Supreme Court would have to to deem the Executive Order unconstitutional. But the damage would already be done since undoing the Executive Order would take time. Look at previous Executive Orders that President Obama has issued, Libya for example. Congress was irrelevant.

    The Democrats will back President Obama, even if the Executive Order is unconstitutional. The Democrats in the Senate will not pass a bill to refute the Executive Order and the House would become irrelevant at this point. Am I wrong with my argument?
     
  20. Alaska444

    Alaska444 member

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    Who said that they won? Just stating the state of the union so to speak is not conceding victory to them.
     
  21. anchorman

    anchorman Member

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    that implies that there is anyone who would actually enforce such an order... any president might say and do what they please, but it doesn't mean that people will obey illegal orders. The current president is only continuing down the road that the previous president (and the previous congress and the courts through their inaction) laid out for him and those who will follow. It's what happens when people go about like cowards, thinking government torture and spying on fellow citizens is going to make them safer.
     
  22. Carl N. Brown

    Carl N. Brown Member

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    It was called the 1994 Assault Weapons Ban for grins and giggles, hunh.
     
  23. anchorman

    anchorman Member

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    seeing as how they didn't actually ban anyone from owning or transferring these guns, I wouldn't really call it a ban. it was a pretty stupid effort, though.
     
  24. r1derbike

    r1derbike Member

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    All I know, is all this arguing and divisiveness is exactly what the grabbers are hoping for. It will avert attention long enough for them to uncloak their daggers and pens, then slash and sign bills to take their place before we have enough time to dispute what they have done, let alone argue in court their legality.

    Vigilance, one eye open at night, cut them off at the pass. I hope this whole affair doesn't slip under the radar. Instead of our government acting like wolves circling their prey, we should be circling the government, as we've seen and heard what they are going to do. They are openly bragging about it!

    What part of this administration doesn't play by the rules does anyone not understand?
     
  25. powderx

    powderx Member

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    Agree with schmoe that panic isn't good and can be used as schmoe posits. We've seen this many times on other fronts. This isn't to say there's no fight to be had and its not to say that everyone is in a panic. But a LOT of folks on these boards reek of panic. Don't let them smell fear.
     
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