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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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"Shall not be infringed" - Today's SCOTUS rule?
So SCOTUS ruled in an immigration case today and Gorsuch writes: "At one level, today’s dispute may seem semantic, focused on a single word, a small one at that," Justice Neil Gorsuch wrote in the court's opinion. "But words are how the law constrains power."
So can we stand on meaning of words? "Shall not be infringed" Any way that ruling can be used? Steve |
#2
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That bright line unequivocal reading of ANY amendment (2A included) has NEVER been held by ANY court EVER. Read the 4th amendment and tell me how the state could EVER get a search warrant for your home or papers etc. etc. But... they do rather easily - and always have.
Just because the Constitution says something doesn't mean that it's unequivocal and set in stone. It has never been interpreted that way and never will be. If 2A were interpreted the way you suggest, EVERY SINGLE firearms law EVER including the 1934 NFA would be unconstitutional. Good luck pushing that interpretation. |
#3
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Much as I hate agreeing with Biden, he is correct, no amendment is "absolute", even though I frequently tell people I am a second amendment absolutist.
The government DOES restrict speech, it simply does. It DOES search people's homes, etc. Where to draw that line is the bugaboo. Shall not be infringed tells me that strict scrutiny of any government restriction is in order.
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#4
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The 2nd is worded in no unceartain terms. "Shall not be infringed" means exactly that. Here is the text of the two in case you are not recalling correctly. 4th. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 2nd. “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.” See the difference? |
#5
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Exactly. Strict scrutiny is never applied to gun laws in the liberal courts. Liberal judges simply refuse to evaluate any gun law using strict scrutiny, claiming "public safety". And SCOTUS has a long track record of ignoring these cases because they would have to evaluate the laws using strict scrutiny if they weighed in. Thats been the single most harmful impediment to judging gun laws fairly, getting a case up to the SCOTUS and applying strict scrutiny.
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CRPA and NRA member. Don't argue with idiots, they will drag you down to their level and beat you with experience. I don't respond to posts/posters that aren't worth responding to. Last edited by Tere_Hanges; 04-29-2021 at 2:13 PM.. |
#6
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When the drafters of the Bill of Rights spoke of the right of the people to keep and bear arms, they spoke of that right as they understood it.
It not mean that the accused, not yet found guilty, had the right to bear arms at his own trial. It did not mean that a constable could not disarm the village madman to keep the peace. It meant the people have the right to keep and bear arms, as they had for eight hundred years already when the earliest Englishmen set out for America. No, not in every place under every circumstance, but I think it would be fair to say they would apply "strict scrutiny" to any law that constrained that right in any way if they knew the term. |
#7
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Here's what they want it amended to.
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WARNING: This post will most likely contain statements that are offensive to those who lack wit, humor, common sense, and or maturity. Satire: A literary composition, in verse or prose, in which human folly and vice are held up to scorn, derision, or ridicule. _____________________________________________ |
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In vacuum, civil rights are expansive and unlimited. In a society, civil rights are limited by other peoples' civil rights. An "absolutist" accepts that the *only* limit on the 2A comes from affecting other peoples' rights, not from government whims or alleged "collective good."
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#11
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ATF Form 4473: If a frame or receiver can only be made into a long gun (rifle or shotgun), it is still a frame or receiver, not a handgun or long gun. |
#13
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The 2nd Amendment isn't - cannot - be absolute. And you agree, unless you want 9-year-olds bringing automatic weapons to school, and people openly carrying grenades, and those ideas are lunacy. The only question is where you want to draw the line, and that's the basic definitional function of all governments, ever: balancing the individual and the collective.
Believing otherwise isn't absolutism. It's anarchy. Am I happy with gun laws in California? Certainly not. But if you believe anarchy is the answer, that'll be a lonely, frustrating, and unproductive journey for you. Last edited by pratchett; 04-29-2021 at 4:27 PM.. |
#14
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As for absolute limits, try this this one: "No Bill of Attainder or ex post facto Law shall be passed." |
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Ugh
When Obama was sworn in the US had less than 8T in debt In the first 6 months of Biden and his party wants to spend 8T to rebuild roads and other silly stuff. I’m not sure how much of anything matters. The court might get packet and then prior rulings might not hold the traditional value that legal prescient holds today.
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Rule 1- ALL GUNS ARE ALWAYS LOADED Rule 2 -NEVER LET THE MUZZLE COVER ANYTHING YOU ARE NOT PREPARED TO DESTROY (including your hands and legs) Rule 3 -KEEP YOUR FINGER OFF THE TRIGGER UNTIL YOUR SIGHTS ARE ON THE TARGET Rule 4 -BE SURE OF YOUR TARGET AND WHAT IS BEYOND IT (thanks to Jeff Cooper) |
#16
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The problem is that we are already so far down the slippery slope that just getting a little higher out of the ditch seems like a mighty victory. Woo-hoo, let's celebrate that there are some kind of guns that don't need to be kept disassembled in our own homes!
I think a very reasonable stance would draw the line at weapons of indiscriminate or mass destruction. Otherwise, the Constitution says what it says. It's in the Bill of Rights after all, it's not just one of those amendments that came as an afterthought... like the right to not be enslaved, or giving women the right to vote. No one would think of walking those things back. Nothing else in the Constitution has been trampled on like 2A. |
#17
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ATF Form 4473: If a frame or receiver can only be made into a long gun (rifle or shotgun), it is still a frame or receiver, not a handgun or long gun. |
#18
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I have always read the 2nd Amendment was the only one to be absolute. All the others have some form of interpretation. 2A is the only amendment right that plainly states Shall Not be Infringed.. So long as I am not hurting anyone, I do have the absolute right to own whatever I can afford.
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#19
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I'm tired of this Bullchit argument of "there's limits on the 1A so limits of course are ok on 2A. You can't yell fire in a theatre... Blah blah blah "
The limits on 1A are directly related to whether the speech wtc directly harm or violate another's rights. You can't yell fire when there isn't because of the ham to another. Or slander etc. Carrying outside the home does NOT harm or violate anyone else's rights. There is no equivalency. The equivocation of limits on free speech is a specious argument and I'm fooking tired of hearing it. An appropriate equivalent is saying you can't just walk out into the street and start pulling "desk pops". Because that would harm someone else and therefore that CAN be regulated. |
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#21
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How can anyone ever listen to the president again in regards to the constitution. He actually said, that We The People, means the government. He is totally clueless. If no amendments are absolute, then perhaps some restrictions on 19th so that Nancy or Kamala can't vote. Or the 13th, or the 15th.
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#23
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How is a dictatorship anarchy? It's the complete opposite LOL
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ATF Form 4473: If a frame or receiver can only be made into a long gun (rifle or shotgun), it is still a frame or receiver, not a handgun or long gun. |
#24
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A 'restriction' on the exercise of a right within the context of society is not, by definition, a violation of the right, no matter how, individually, we may perceive it as such. The question is whether such a restriction or assemblage of restrictions violates the right itself, thus violating or breaking the social contract. This is precisely what you see in judicial decisions. An example I just used on another thread on the same topic of "infringe" is... Quote:
Thus, in a sense, 'amendments' insofar as 'understanding' of what is permissible insofar as exercise of the right itself have been allowed to what was specifically codified (vis a vis the strict definition of the words used) over time... IF... we become overly consumed by original definition as opposed to original intent/meaning. We now don't limit the right solely to 'able-bodied males' and, arguably, neither did the Founders in a pragmatic sense. In the same vein, limitations on exercise of the right have been 'allowed' and have been there from the beginning. Where one has to be careful with something like 'strict scrutiny' in evaluating what was "meant," how a word/phrase was "defined," and what is deemed "judicial intent" (both good and nefarious) is what I was referring to when I said, in the same post, intellectual consistency becomes somewhat malleable when theory confronts application and such malleability can be 'reasonable' and 'nefarious' depending on the individual and the application. Put another way, don't confuse the theoretical with the motivation/reasoning behind a specific application or with the actual application. But, that brings us back to Pratchett's statement, something I've also noted regularly - The only question is where you want to draw the line, and that's the basic definitional function of all governments, ever: balancing the individual and the collective... This is the crux of the matter and the very basis upon which we evaluate a decision regarding it being "good" or "nefarious." The problem is that each of us has a personal 'marker' in terms of where the 'balance point' should be. Judges/Justices don't, at least in theory, have such a luxury. Their 'balance point' has to be within the confines of the law, precedent, etc. At least it is supposed to be and such is not limited to just what one personally is aware of or "feels" was meant. It's part of why there's the old joke (with myriad variations) that you can put 5 lawyers in a room, give them a 'problem,' and end up with 50 different interpretations. Basically, it comes down to a lot of "If - Then" conjecturing. In that context...
The fact that members of SCOTUS prevented Scalia from engaging in "Step Three" frustrated him until his death, as it also frustrated and continues to frustrate Thomas, not to mention, at least to some degree, has irritated Alito and, perhaps to a lesser degree, Gorsuch and Kavanaugh. |
#26
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When does someone's sense of responsibility (or lack thereof) become anarchical to the rest of society and where is the balance point between 'securing individual rights' and introducing 'chaos' to a society, which, by definition is based on a certain sense/amount of 'order?' |
#27
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ATF Form 4473: If a frame or receiver can only be made into a long gun (rifle or shotgun), it is still a frame or receiver, not a handgun or long gun. |
#28
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If they have well ordered rules and a means of enforcing them they are functionally a government. Which shows that in the absence of government some form of government will arise.
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#29
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In a more esoteric sense, that means 'anarchy' is akin to a 'vacuum' in which 'order' based on establishment/tradition or authority or both is missing or fundamentally so. Nature abhors a 'vacuum' and will seek to fill it with... something. Even space is not a 'perfect' vacuum. Thus... Quote:
While all Life may exist in a state of 'balance' between utter chaos and absolute order, it is that very same type of balance which is being referenced by "shall not be infringed." What 'state' do "We the People" wish to live in between utter chaos (complete anarchy) and absolute order (totalitarian rule)? As noted, there is no perfect state for either in Nature and, as we know, change is not only inevitable, it is necessary in many ways; such that even the Constitution provides processes by which 'change' can be made, but in such a way as to forestall a sense of chaos while protecting against a perception of 'absolute' order. Which is why I said... Quote:
Last edited by TrappedinCalifornia; 05-02-2021 at 2:53 AM.. |
#30
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I shall remind you of the FIRST Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. And yet, you CAN'T yell fire in a crowded theater or incite a riot. Your fundamentalist strict constructionist theory is just not right nor has it EVER been followed. We NEED to move past it. Last edited by CAL.BAR; 05-02-2021 at 9:53 AM.. |
#31
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Arguing that a right is not “absolute” seems a little silly in light of the 9th Circuit Ct. of Appeals recently ruling that the language of the 2nd Amendment essentially has no meaning and confers zero rights to the people to “bear arms”.
The Courts have failed, not the Constitution and the Bill of Rights. |
#32
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The "can't yell fire in a crowed theater" base canard again. 2 seconds with a search engine would get you this: https://www.theatlantic.com/national...-quote/264449/ |
#34
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You will be surprised by how many whackados on here would profess to be OK with EXACTLY those things as a consequence of an unfettered strict interpretation of "shall not be infringed".
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#35
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So, the question is whether automatic weapons and grenades should be available at all or not. If you make an argument against automatic weapons and grenades, it will be the same argument that the left is making against the so-called assault weapons. The difference is only where you draw the line and why. In fact, Bloomberg believed that banning assault weapons was banning guns that go "trrrrr...trrrr...trrr" with a single trigger pull, so he also thought that only "whackados" would support legal assault weapons.
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#36
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The very phrase "shall not be infringed" precludes the "collective" argument as the limit. The limits must be solely from collision between individual rights of other people. Saying that "the collective will be safer without guns" cannot be used to draw the line; saying that "you cannot point a gun at someone" can. So there is still "absolutism" but it's quite a bit more nuanced than the debate between "there can be no regulation" (which is false; there are regulations that are NOT an infringement) and "regulation in general is allowed because the right is not absolute" (which is false even if we don't get into what "absolute" in the context of civil rights means - permissible regulation must be along the lines of strict scrutiny).
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#37
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However, the debate is really not about "all or nothing," it's about how and where the limits are. The courts have interpreted Scalia's "does not mean any weapon in any place in any manner" (paraphrasing) to simply mean "regulation is allowed, the government set a regulation, so the government wins." This is patently wrong and is about to get untangled by the Supreme Court. We still likely don't agree on where and how the lines can be set. IIRC, you believe in the Democrats' versions of "common sense gun control." It's not common sense and it certainly infringes on 2A.
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#38
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#39
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NOW - on the line drawing. Well, back in 1934 the line was drawn at full auto and SBR and silencers etc. NO court has EVER even HINTED at striking that down. Sorry, but that is the LAW and has been for nearly 90 years. CA and other states say NO NFA's. I don't like it, but I don't think that will change, right? So... if states CAN say what types of guns we can have - we had better be in the discussion about it. NO I don't like Democrats "common sense"gun control when it comes to stopping people from getting damn near anything they want. BUT... I see NO problem with background checks, AND waiting periods for people who are getting their FIRST (and only first) gun. I agree that WE (gun owners) need to help stop the mentally infirm from getting and having firearms. Gun owners should be on the forefront of that because if we don't we see what will happen. Those lunatics WILL continue to shoot up schools and churches and malls etc. giving yet more ammo to the anti-gunners. With each shooting the noose tightens. WE need to stop the mantra that the 2A is inviolate and therefore felons or the mentally unfit or people convicted of violent crimes should have access to guns because ït''s a god given constitutional right".... This ALL starts with a dialog. A dialog between the NRA and/or gun owners and Democrats. A dialog that cannot be had when one side says "not one step backwards"... or..... "ALL guns must be taken away". Sadly I am just not hearing any dialog or opportunity to discuss this matter intelligently. We KNOW what we want. We want lunatics to stop shooting up schools and malls.(at least I HOPE that is the case) Now we can't get to or know all the lunatics before they act, but OFTEN there are signs. Parents, spouses, friends and family will often say "well, he was going through a lot" or "he had mental health issues".... OK if THEY know about it, THEY can help stop it. Yes, Red Flag laws. That coupled with a LAW banning the publication of the shooter's name and identity will go a long way to slowing or stopping the mass shooting epidemic we are seeing. THAT is the only way to buy time for firearms ownership here in the US. And I say ""buy time" because I am convinced that population increases may eventually render most firearms ownership impractical and thus irrelevant. (but that is a different discussion) |
#40
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There is no point in pushing a single version of "truth," that's how we ended up in this mess as a country where the mainstream propaganda wants to define "the truth" and silence anyone who doesn't conform. In case of 2A, there are two separate issues - what we believe the meaning is, which is open to debate and opinions, and, what we believe the courts will do, which we can figure out empirically.
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