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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-28-2020, 11:44 AM
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Default 'Keep and bear arms' linguistic research (Heller)

https://www.theatlantic.com/ideas/ar...ndment/607186/

Blackman and James Phillips, linked from Volokh Conspiracy - https://reason.com/2020/02/28/new-in...-d-c-v-heller/

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In 2018, my colleague James Phillips and I published a post on the Harvard Law Review Blog. We offered some tentative findings about the linguistic claims made by the majority and dissent in D.C. v. Heller. ... In the interim, we published an essay in The Atlantic that previews our work. We show that both Justice Scalia and Justice Stevens erred.
Historical interest only, at the moment. But I wonder if one of the parties in NYSRPA might file one of those whaddayacallit 'this recently came up and the Court should know it' documents.
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  #2  
Old 02-28-2020, 11:52 AM
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Originally Posted by Librarian View Post
https://www.theatlantic.com/ideas/ar...ndment/607186/

Blackman and James Phillips, linked from Volokh Conspiracy - https://reason.com/2020/02/28/new-in...-d-c-v-heller/


Historical interest only, at the moment. But I wonder if one of the parties in NYSRPA might file one of those whaddayacallit 'this recently came up and the Court should know it' documents.
Motion to take judicial notice?
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  #3  
Old 02-28-2020, 12:46 PM
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Default He thinks NYSRPA will be mooted.

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In the next few months, the Supreme Court will decide a Second Amendment case from New York. More likely than not, the justices will dismiss the case as moot, as the local government has already repealed the law at issue.
Lame.
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  #4  
Old 02-28-2020, 12:47 PM
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There was an Amici which was similar to this for the NYSRPA case. They did a linguistic analysis on "bear arms" and they found , of course, that it was used strictly for military context, etc..

https://www.supremecourt.gov/DocketP...0Corrected.pdf

Last edited by abinsinia; 02-28-2020 at 12:55 PM..
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  #5  
Old 02-28-2020, 12:50 PM
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I found the analysis uninteresting and unpersuasive.

The Consitution and Bill or Rights are not sentences to diagram..., we all know what they say and mean, and it is only to hide the absurd twisting of their clear directions and limitations that anyone would engage in this type of parsing and word usage counting.

Give me a break. Seems like academic navel gazing and grant proposal stuff.
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Old 02-28-2020, 2:22 PM
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i guess we the people of the united states are not really among the "we the people" the constitution talks about maybe it was only apiicable to the people who signed it



attepting to combine bear and arms as one indivisible new legal "word" is ridiculous since i notice they are not willing to accept "keep arms" as written and obviously defined

Last edited by bohoki; 02-28-2020 at 2:33 PM..
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Old 02-28-2020, 2:26 PM
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"Based on these findings, we are more convinced by Scalia’s majority opinion than Stevens’s dissent, even though they both made errors in their analysis. Furthermore, linguistic analysis formed only a small part of Scalia’s originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings."

It sounds like this was a legitimate attempt at research. I expected something different. I will point out, though, regardless of what this research tool provides, The Federalist Papers explain pretty clearly what they meant when they put the 2A into the Bill of Rights. Individual quotes from the Founding Fathers are clear too.
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  #8  
Old 02-28-2020, 4:42 PM
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Quote:
Originally Posted by Apocalypsenerd View Post
"... The Federalist Papers explain pretty clearly what they meant when they put the 2A into the Bill of Rights. Individual quotes from the Founding Fathers are clear too.
Does anyone know of a compiled source for these?

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  #9  
Old 02-28-2020, 5:30 PM
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Originally Posted by SelfGovernor View Post
Does anyone know of a compiled source for these?

SG
Federalist papers are here: https://www.congress.gov/resources/d...eralist+Papers

Some of the other stuff was in the amicus filings for Heller; their old home on the internet no longer shows links to those docs.

ETA the list (but not the briefs themselves) of the amicus briefs is here: https://www.supremecourt.gov/search....les/07-290.htm. One might be able to search for them individually.
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There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

The details only count after the Governor signs the bills.


Gregg Easterbrook’s “Law of Doomsaying”: Predict catastrophe no later than ten years hence but no sooner than five years away — soon enough to terrify people but distant enough that they will not remember that you were wrong.


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Last edited by Librarian; 02-28-2020 at 6:07 PM..
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  #10  
Old 02-28-2020, 7:59 PM
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The crux, I believe, is in this statement from the Reason.com link...

Quote:
Our goal here was not to criticize Justice Scalia. Linguistic analysis formed only a small part of Scalia's originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings. But originalists should still be able to assess, critically where Justice Scalia faltered. And Heller critics should likewise acknowledge where Justice Stevens faltered.
We've known all along that the majority opinion in Heller has never been the be all, end all. We also know that Scalia himself was inviting new cases post-Heller so as to further clarify what is protected. Finally, we know that Scalia was operating based on... questionable? tenuous? troubling?... premises by not necessarily looking to the plain language of the text, but to what was 'Constitutionally permissible' as his starting place.

In effect, I think what the authors are proposing is simple and it's something that Thomas has been pushing; i.e., that SCOTUS needs to set forth more clarification in terms of what is protected rather than leaving us in a 'favorable,' but not unassailable and nefariously manipulated position the way they have.
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Old 02-29-2020, 10:20 AM
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Yes it would have been great if they had been more forthright about the protections offered in the Heller opinion but my guess is that they had to soften the ruling to get Kennedy into the pro 2A camp.
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Old 02-29-2020, 12:22 PM
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Yes it would have been great if they had been more forthright about the protections offered in the Heller opinion but my guess is that they had to soften the ruling to get Kennedy into the pro 2A camp.
DC v. Heller said:

1. The right is an individual right to keep and bear arms suitable for self-defense for the purpose of confrontation.

- keep defined as own.
- bear defined as to carry on ones person or in ones clothing.
- without the stated purpose - the right is rendered meaningless - destroyed.


2. The People enjoy commonly held arms suitable for self defense.

3. The preexisting Militia (all abled bodies men of the people) bring the same commonly held arms suitable for self-defense as The People for the purposes of confrontation.

4. The preexisting Militia by viture of its existence is an obstable to domestic insurrection, foreign invaders and tyrants and tyrannical government that would try to impose a standing army or military on The People as an act of political oppression.

(To disarm The People is to disarm The Militia - p. 25)

5. Congress under Article 1, Sec. 8, Cls 15-16 may draw a subset of the preexisting Militia, and as a pool, train it to be an effective fighting force.

(That's your federalized miltiia - which can be armed as Congress sees fit including with military arms.)

6. Open Carry is the right.

7. Concealed carry is regulated by the States, prohibitions thereon may be upheld.

8. Unusually dangerous weapons, military arms, concealable arms are not protected under the right.

9. The 2nd Amendment does not preclude future arms suitable for self-defense.

(Repeated in Caetano v. Massachusetts)

10. SCOTUS refuses to seperate the Prefatory Clause from the Operative Clause because to do so would result in an entirely different interpretation of the right - hence why the M-16 and similar arms are not recognized as protected arms. (The preexisting Militia uses the same commonly held arms suitable for self-defense as The People.)

11. The right is not unlimited - restrictions are recognized per sensitive places, prohibited persons and on concealed carry.

So what was SCOTUS not "more forthright" on in your opinion?

Or are you attributing blame from those ignoring DC v. Heller to SCOTUS that does not have an enforcement mechanism?

=8-)
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  #13  
Old 02-29-2020, 5:39 PM
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Quote:
Originally Posted by mrrabbit View Post
DC v. Heller said:

1. The right is an individual right to keep and bear arms suitable for self-defense for the purpose of confrontation.

- keep defined as own.
- bear defined as to carry on ones person or in ones clothing.
- without the stated purpose - the right is rendered meaningless - destroyed.


2. The People enjoy commonly held arms suitable for self defense.

3. The preexisting Militia (all abled bodies men of the people) bring the same commonly held arms suitable for self-defense as The People for the purposes of confrontation.

4. The preexisting Militia by viture of its existence is an obstable to domestic insurrection, foreign invaders and tyrants and tyrannical government that would try to impose a standing army or military on The People as an act of political oppression.

(To disarm The People is to disarm The Militia - p. 25)

5. Congress under Article 1, Sec. 8, Cls 15-16 may draw a subset of the preexisting Militia, and as a pool, train it to be an effective fighting force.

(That's your federalized miltiia - which can be armed as Congress sees fit including with military arms.)

6. Open Carry is the right.

7. Concealed carry is regulated by the States, prohibitions thereon may be upheld.

8. Unusually dangerous weapons, military arms, concealable arms are not protected under the right.

9. The 2nd Amendment does not preclude future arms suitable for self-defense.

(Repeated in Caetano v. Massachusetts)

10. SCOTUS refuses to seperate the Prefatory Clause from the Operative Clause because to do so would result in an entirely different interpretation of the right - hence why the M-16 and similar arms are not recognized as protected arms. (The preexisting Militia uses the same commonly held arms suitable for self-defense as The People.)

11. The right is not unlimited - restrictions are recognized per sensitive places, prohibited persons and on concealed carry.

So what was SCOTUS not "more forthright" on in your opinion?

Or are you attributing blame from those ignoring DC v. Heller to SCOTUS that does not have an enforcement mechanism?

=8-)
Nice try, except there were plenty of other matters in the ruling that made it possible for all the shenanigans we are seeing with the lower courts. And forget the open carry nonsense. The only right that should be protected is carry. Period. Making the distinction between open and concealed will just lead to more gamesmanship.
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  #14  
Old 02-29-2020, 6:13 PM
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Let us not drift too far from the topic, please,
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I've been saying that for years ...

There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

The details only count after the Governor signs the bills.


Gregg Easterbrook’s “Law of Doomsaying”: Predict catastrophe no later than ten years hence but no sooner than five years away — soon enough to terrify people but distant enough that they will not remember that you were wrong.


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Old 02-29-2020, 6:37 PM
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Quote:
Originally Posted by Elgatodeacero View Post
Seems like academic navel gazing and grant proposal stuff.
Quote:
Originally Posted by Apocalypsenerd View Post
It sounds like this was a legitimate attempt at research.
The authors are faculty members. To retain relevance (and tenure) they must “publish or perish”.
Quote:
As James transitions to academia,...[...] We hope to publish this research, which also looked at other phrases in the Second Amendment, such as the right of the people, in an academic journal.)
Their final conclusions are a (slightly weighted to Scalia) draw which doesn’t leave open much room for challenge:
Quote:
Based on these findings, we are more convinced by Scalia’s majority opinion than Stevens’s dissent, even though they both made errors in their analysis.
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Old 02-29-2020, 6:50 PM
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Nice try, except there were plenty of other matters in the ruling that made it possible for all the shenanigans we are seeing with the lower courts. And forget the open carry nonsense. The only right that should be protected is carry. Period. Making the distinction between open and concealed will just lead to more gamesmanship.
"Nice try..."

^ take that up with SCOTUS, not I.

"And forget the open carry nonsense..."

^ 600+ years of history and tradition? Again, take it up with SCOTUS.

"plenty of other matters..."

^ Mind listing a few?

How about bootstrapping GCA 1968 for one?

=8-)

As to the linguistic research...Scalia himself spent plenty time doing that himself in DC v. Heller including copius refutations of Steven's attempts at "defining" things . . . with footnotes to boot.

So technically, the researchers already had their work done for them.

Just your typical academics in the white ivory tower trying to be important.

=8-)
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Old 03-01-2020, 7:21 AM
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Originally Posted by mrrabbit View Post
"Nice try..."

^ take that up with SCOTUS, not I.

"And forget the open carry nonsense..."

^ 600+ years of history and tradition? Again, take it up with SCOTUS.

You left out the part where concealed carrying was also done in that 600+ years of history and tradition

"plenty of other matters..."

^ Mind listing a few?

Common use. I believe that's nonsense also, yet they included that in the ruling and now you've got talking heads turning it into a thing

Sensitive places. More capitulation to "government interest."


How about bootstrapping GCA 1968 for one?

=8-)

As to the linguistic research...Scalia himself spent plenty time doing that himself in DC v. Heller including copius refutations of Steven's attempts at "defining" things . . . with footnotes to boot.

So technically, the researchers already had their work done for them.

Just your typical academics in the white ivory tower trying to be important.

=8-)
Just because we want Heller to give us the result we're looking for, fact of the matter is there were enough wriggle room that allowed things to get to where they are today. I much prefer Thomas' conclusions from Heller. Nevertheless, in the end what is important is how the case laws have played out. If we ignore that we do so to our own peril.
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Old 03-01-2020, 8:51 AM
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Originally Posted by Elgatodeacero View Post
I found the analysis uninteresting and unpersuasive.

The Consitution and Bill or Rights are not sentences to diagram..., we all know what they say and mean, and it is only to hide the absurd twisting of their clear directions and limitations that anyone would engage in this type of parsing and word usage counting.

Give me a break. Seems like academic navel gazing and grant proposal stuff.
Exactly. The framers of the constitution and bill of rights had a very clear intent if these "navel gazers" took the time to look at the writings from that time. Doing a computer analysis of how words have been used is an interesting exercise I suppose but is not persuasive as to what the founders actually meant.
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Old 03-01-2020, 9:07 AM
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I appreciate the linguistic study - that the hoplophobes may avail themselves of it. But the Declaration of Independence is illustrative in this same (linguistic) sense as well: "We hold these truths to be self-evident."


And that I have, vis-a-vis the 2A, ever since I first read it.
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Old 03-01-2020, 9:11 AM
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Originally Posted by Mute View Post
Just because we want Heller to give us the result we're looking for, fact of the matter is there were enough wriggle room that allowed things to get to where they are today. I much prefer Thomas' conclusions from Heller. Nevertheless, in the end what is important is how the case laws have played out. If we ignore that we do so to our own peril.
You pointed out open carry, not I.

..and yes, 600+ years of history and tradition shows that concealed carry has been regarded as criminally suspicious behavior until further notice - thus why States regulate it and why prohibitions thereon may be upheld.

Same for those arms that are considered "concealable" - a category that some states just love to abuse.

Nice try though...

=8-|
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Old 03-01-2020, 9:14 AM
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Originally Posted by JCHavasu View Post
Exactly. The framers of the constitution and bill of rights had a very clear intent if these "navel gazers" took the time to look at the writings from that time. Doing a computer analysis of how words have been used is an interesting exercise I suppose but is not persuasive as to what the founders actually meant.
and the framers understood at the time that the 2nd Amendment right was not absolute, or without limitations.

And SCOTUS provided cites and authorities throughout DC v. Heller that you can actually pull and read yourself. . .

. . . that's assuming to begin with you've actually read it:

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

=8-|
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Old 03-01-2020, 9:19 AM
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Ay yi yi
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Old 03-20-2020, 8:40 AM
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Ay yi yi
Wow! I know the framers would have studied and fretted over every word in every amendment, but it would have been so much easier if the second amendment said: The people shall keep and bear arms (especially cool ones that we know will be invented in the future).
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