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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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  #641  
Old 06-12-2021, 10:37 PM
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Originally Posted by mrrabbit View Post
They do say that OC is the natural exercise of the right - and reference two state cases examples - detailing the open and honest nature of OC.
You know, it just occurred to me that maybe the reason you don't copy and paste text from Heller that proves your claims about it isn't that you are dishonest, but rather that you don't know how to.

Well, this should help: https://lmgtfy.app/?q=how+to+copy+and+paste+text

I'll be happy to explain further if that (somehow) isn't enough.
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  #642  
Old 06-13-2021, 1:03 AM
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Originally Posted by mrrabbit View Post
SCOTUS did not say that one mode of carry was contingent upon the other - as the Federalist Society tries to say.

Again, always go to the actual authoritative source...NOT a third party trying to position itself as an authority.

I've linked DC v. Heller a 1000+ times already in multiple threads.

DC v. Heller says what it says...no interpretation is needed.
"Linking" to Heller, no matter how many times, isn't synonymous with having READ it. Heller didn't say it was "contingent." What they said is that "to bear" (carry) means...

Quote:
...‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”... We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.”...
What The Federalist Society author did was point to another portion of the majority decision in Heller which stated...

Quote:
...the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...
THAT is what Heller says as it directly applies "to bear" (carry). That "to bear" (carry), by the definition accepted/used in Heller, includes both open and concealed, but that there are/can be limitations on either.

What you claim as "what Heller says" is based solely on interpolation of Scalia's use of certain cases which, in part or in whole, included bans on concealed carry at the state level. What you fail to acknowledge/accept is that Scalia repeatedly and specifically in Heller declares that his use of those cases is in relation to how they addressed militia service and how those cases illustrate that the right itself does not necessitate service in the militia. In other words, Scalia overtly declares, in Heller, that he does NOT address 'carry' in the cases cited beyond noting that such is what the case was in part or in whole, about. Thus, what you proffer as the "default exercise" is a gross misreading of Heller and an interpolative exercise rather than a direct reading of Heller.

If the cases are the definitive, authoritative sources, then how can you declare...

Quote:
...They do say that OC is the natural exercise of the right - and reference two state cases examples - detailing the open and honest nature of OC...
Go to Heller. Use the "Find" tool. Just try "carry." 77 results. Must be in those - right? In order of appearance, starting with the Syllabus and including footnotes...

Quote:
  1. ...making it a crime to carry an unregistered firearm...
  2. ...no person may carry an unlicensed handgun...
  3. ...it prohibits carrying an unlicensed firearm in the home...
  4. ...not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...
  5. ...laws forbidding the carrying of firearms in sensitive places...
  6. ...support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons...
  7. ...the District must permit Heller to register his handgun and must issue him a license to carry it in the home...
  8. ...is a crime to carry an unregistered firearm...
  9. ...no person may carry a handgun without a license...
  10. ...Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty...
  11. ...the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license...
  12. ...seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense...
  13. ...Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service...
  14. ...At the time of the founding, as now, to “bear” meant to “carry.”...
  15. ...When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose...
  16. ...‘wear, bear, or carry... upon the person or in the clothing or in a pocket...
  17. ...citing 1840 state law making it a misdemeanor for a member of certain racial groups “to carry about his person or keep in his house any shot gun or other arms”...
  18. ...Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization...
  19. ...“bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia...
  20. ...“bear arms” did not refer only to carrying a weapon in an organized military unit...
  21. ...most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia...
  22. ...“bear arms” connotes the actual carrying of arms...
  23. ...military discussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms”—though no one thinks that those other phrases also had special military meanings...
  24. ...If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage...
  25. ...if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.”...
  26. ...The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter...
  27. ...the most natural interpretation of Madison’s deleted text is that those opposed to carrying weapons for potential violent confrontation...
  28. ...would not be “compelled to render military service,” in which such carrying would be required...
  29. ...we find that they guarantee the individual right to possess and carry weapons in case of confrontation...
  30. ...we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation...
  31. ...required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.”...
  32. ...Second Amendment right, protecting only individuals’ liberty to keep and carry arms...
  33. ...JUSTICE STEVENS has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia...
  34. ...Nothing in the passage implies that the Second Amendment pertains only to the carrying of arms in the organized militia...
  35. ... Such a belief would of course be nonsensical on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service...
  36. ...cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them...
  37. ...The claim was obviously not that blacks were prevented from carrying guns in the militia...
  38. ...the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly...
  39. ...under JUSTICE STEVENS’ reading of the Second Amendment (we think), the protected right is the right to carry arms to the extent one is enrolled in the militia...
  40. ...the Louisiana Supreme Court held that citizens had a right to carry arms openly...
  41. ...permitted to carry arms openly, unconnected with any service in a formal militia...
  42. ...the claim was not that blacks were being prohibited from carrying arms in an organized state militia...
  43. ...it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional...
  44. ...no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia...
  45. ...Government’s brief spent two pages discussing English legal sources, concluding “that at least the carrying of weapons without lawful occasion or excuse was always a crime”...
  46. ...From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...
  47. ...the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues...
  48. ...or laws forbidding the carrying of firearms in sensitive places...
  49. ...We also recognize another important limitation on the right to keep and carry arms Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”...
  50. ...We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”...
  51. ...the Georgia Supreme Court struck down a prohibition on carrying pistols openly...
  52. ...(even though it upheld a prohibition on carrying concealed weapons)...
  53. ...Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision...
  54. ...That was so even though the statute did not restrict the carrying of long guns...
  55. ...respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement “in such a manner as to forbid the carrying of a firearm within one’s home or possessed land without a license.”...
  56. ...Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home...
All 56 are from the majority opinion in Heller; the remainder are in the dissent(s). Don't see what you say it says.

This is why I and many others suspect your justification is always "read Heller," without ever providing a direct quote from Heller, despite numerous and constant requests (and demands, including from TPTB) for you to produce such.

The cases/references Scalia cites specifically related to the form/manner of 'carry' revolve around the idea that...

Quote:
“As the Constitution of the United States, and the constitutions of several of the states... declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.”
A source of controversy as to manner. Yes. Decided on the State level. Yes. He specifically did not propose an absolute in terms of a "default exercise" in the manner of carry and, instead, was noting that the "default exercise" was "carry" (to bear) and that the manner was and has been determined at the State level.

Isn't that what the author of the piece posted at The Federal Society was conveying? Isn't that precisely what I have said? "Manner of carry" can be regulated so long as some form of "carry" is available? Not contingent on one or the other; but, "some form available."

We read Heller. We quoted from Heller. Quoted were direct, definitive statements from the majority decision, on point as regards what the "default exercise" of the right is. What Scalia acknowledged, later in Heller, was...

Quote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms...
All of that is taken directly from Heller.

On the other hand, what you are doing is PRECISELY what Scalia specifically said in Heller (in the above quote) should NOT be done. (Note what I highlighted in the quote.) You have taken their "incomplete historical analysis" and turned it, through interpolation, into the "full scope" of the right to bear (carry) as the default exercise.

In other words, you have not only turned the declared "default exercise" in Heller on its head (taking it from a general right "to bear" and declaring it to be a specific manner of carry), you have done what Heller explicitly said not to do in declaring that Heller addressed what it deliberately went out its way not to address. As has been observed, Scalia was very overt that Heller did not address the scope of the right beyond it being an individual right to keep and bear. The accepted/acceptable limitations (or, conversely, the expansiveness of the liberties) would have to be determined in future cases; i.e., they were not determined in Heller.

Once again, THAT is what Heller actually says. Simply, ad nauseam, repeating "Heller says" and "read Heller" and even providing links to the case in general, but with no quotes or direct, line references to support your contentions, isn't the same as actually having read it yourself or demonstrating that you actually understand what it says, let alone demonstrate knowledge of what it actually says.
  #643  
Old 06-13-2021, 1:33 AM
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Well I'll be damned. Mr Rodent finally posted at least a single sentence that most can agree with.

Quote:
Again, always go to the actual authoritative source...NOT a third party trying to position itself as an authority.
And by posting it. He has SELF debunked every post he ever made regarding Heller.

Because "We the People" see SCOTUS itself as the "actual authority".

And Mr Rodent as trying to position himself as an "authority".

Even though, NOT ONCE has he supported any premise of his, with an actual;
Quote:
"QUOTE from SCOTUS on HELLER"
  #644  
Old 06-13-2021, 5:27 AM
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"Go to Heller. Use the "Find" tool. Just try "carry."

How to locate the "Find" tool?

Thanks
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  #645  
Old 06-13-2021, 5:37 AM
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Originally Posted by wjackcooper View Post
"Go to Heller. Use the "Find" tool. Just try "carry."

How to locate the "Find" tool?

Thanks
Jack
It'll depend on the browser you're using.

In Chrome, the 3 vertical dots in the upper right hand corner of the screen. Click and "Find" will be on the pull down menu.

In FireFox, it'll be the three horizontal bars in the upper right hand corner of the screen. Click and "Find In Page" will be on the pull down menu.

I don't know about Edge, Opera, etc.
  #646  
Old 06-13-2021, 6:58 AM
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Originally Posted by kcbrown View Post
And yet, they did "reinterpret" the right, with respect to the militia clause.
No they didn't. They clarified what the language meant when it was written and that's different than "reinterpreting."

Interpreting or reinterpreting can be illustrated by the courts deeming that "sex" now also includes "gender" even though there is no such indication anywhere in the law. In essence, interpretation is "whole cloth" with no other support except "because we say so."

Clarification can be shown by the SCOTUS examining why there are things like "prefactory clauses" and the use of such in that particular instance. It is the exact opposite of the above because it uses the constructs of language and grammar as the basis for it's reasoning and application instead of personal/consensus opinion/belief.


Quote:
Either the scope of the right includes the reasons behind it, or it doesn't. If it does, then it's not "reinterpreting" the right when the scope changes due to changes of the conditions that act as inputs to the reasons embodied by the scope. If it doesn't, then the scope of the right is static and unchanging, irrespective of changing conditions. I can't say whether or not the scope of the right includes the reasoning behind it. It could go either way.
The phrase "History and Text" means that what you're trying to say here isn't going to fly.

I also think it's beneficial to understand that judicial decisions on what the law "is", isn't supposed to be subject to the changing winds of society. If society doesn't like a particular law, then they are free to change it as long as that change is within the constraints imposed upon said society. (ie; the Federal and State Constitutions.)

Quote:
SCOTUS did not state whether or not the scope of the right includes any reasons within it. As such, you're not saying anything here that illuminates anything.


Oh: and if the scope of the right doesn't include its reasons, which is what your claim here amounts to, then explain why the state courts bothered to state the reasoning for upholding bans on concealed carry, rather than saying "it's just not part of the right".
SCOTUS did include it's reasoning on the scope of the Right and why that scope exists in that form - The Militia. I'm fairly certain the source of your confusion on this comes from the fact that you seem to believe that lower courts (State courts) can, by including their differing "reasons", somehow avoid obeying the instructions from SCOTUS and that's perfectly fine with you merely because the lower courts "put it in writing" then stamped their official seal on it. Your reliance on Bliss as some kind of "magic talisman" is what tells me this.


Quote:
I used Bliss here to illustrate that there was disagreement within the founding generation on the question, nothing more. The history of Bliss is why I used it to only illustrate disagreement, rather than something more definitive as I had in the past.
Bliss is an anomaly. In it's time, it wasn't universally accepted. Nor in most places, including the Supreme Court, followed or accepted. Were your position on this true, then Miller would have been decided differently.
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  #647  
Old 06-13-2021, 8:30 AM
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Originally Posted by mrrabbit View Post
...Hence why I always say:

Read DC v. Heller yourself!

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
Yep. Pretty much what I figured. Deflection. Declaration with no documentation. Obfuscation with "read Heller," as if what you say is actually in there.

That is your defense of the specific you claimed...

Quote:
Originally Posted by mrrabbit
...They do say that OC is the natural exercise of the right - and reference two state cases examples - detailing the open and honest nature of OC...
...and I couldn't find, period, despite listing the specific instances where the word carry/carrying was used in Heller?

You 'paraphrased' what they said by somehow determining they said that the natural exercise of the right is open carry, despite repeated use of the word "natural" in the decision as it relates to meaning, interpretation, and right of self-defense (as quoted above), not in relation to manner of carry; all while never overtly condemning concealed carry while citing open carry as the right (though specifically citing one reference noting it as controversial at the state level). To do that, you, once again, ignored the fact that Scalia cited the cases as they related to service in the militia and individual rights, specifically declaring that the Court was not interested in determining the scope of the right, including 'manner of carry.' (Remember, Scalia specifically cautioned not to confuse the reason for codification with the right itself.)

Yet, somehow, despite direct citations/quotes, I misrepresent what was actually said?! You then go on to claim...

Quote:
Originally Posted by mrrabbit
...Oh...and you really shouldn't "clip" the quotes from page 39 and 40.

And you left out the entire "meat" of page 54 as it pertains to concealed carry...
The majority opinion is found in the Syllabus and pages 1- 64 of the decision. The list of quotes I provided in relation to "carry" came from... ready?... pages 1, 2, & 3 of the Syllabus, then 1, 2, 3, 10, 11, 12, 13, 14, 15, 16, 17, 19, 22, 28, 31, 34, 28, 39, 40, 41, 42, 46, 47, 51, 54, 55, 57, 58, 64. In other words, I provided the instances where the majority opinion used the word carry/carrying. None of them say what you claimed.

As to pages 39 & 40, why not? Because the first case cited has to do with blacks? Or, because Scalia, inconvenient to your argument, but consistent with mine states...

Quote:
...No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.”

...It is not possible to read this as discussing anything other than an individual right unconnected to militia service...

...the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore
struck down a ban on carrying pistols openly...

...the Louisiana Supreme Court held that citizens had a right to carry arms openly...

...Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons...
I say inconvenient in the sense that such appears to form the basis of your argument, yet it is as I described. Scalia notes limitations are possible. That state courts have experienced/expressed 'controversy' regarding the manner of carry. That the "natural right" is self-defense, not "open carry" per se. Remember, Nunn v State of Georgia may have ruled that banning concealed carry was permissible, but only with the caveat that open carry was permitted. As stated in the "Headnotes"...

Quote:
...A law which merely inhibits the wearing of certain weapons in a concealed manner is valid. But so far as it cuts off the exorcise of the right of the citizen altogether to bear arms, or, under (lie color of prescribing the mode, renders the right itself useless — it is in conflict with the Constitution, and void...
Or, as I said earlier...

Quote:
Originally Posted by TrappedinCalifornia
...Thus, the "default exercise" is "carry" (bear). The "manner of carry" can be regulated so long as some form of "carry" is available. Which is why I and others have maintained that fighting for one or the other (open or concealed) as "the right" is misguided and potentially harmful. It's also why we have stipulated that the most likely outcome is a 'middle ground' where one or the other or both (as appropriate to the jurisdiction) is the most likely outcome; particularly given those Justices we are reliant upon at SCOTUS are also strong proponents of States' rights...

"Manner of carry" can be regulated so long as some form of "carry" is available? Not contingent on one or the other; but, "some form available."...
The Supreme Court of Georgia chose a specific form to allow.

In State vs. Chandler, the court said...

Quote:
...The counsel of the accused requested the court to charge the jury, "that to carry weapons, either concealed or openly, is not a crime in the State of Louisiana; that the Constitution which guarantees to the citizen the right to bear arms cannot be restricted by the action of the Legislature."

The act of the 25th of March, 1813, makes it a misdemeanor to be "found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full view." This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man's right to carry arms (to use its words) "in full open view," which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if neccessary, and of their country, without any tendency to secret advantages and unmanly assassinations...
In other words, what they were referencing was an existing law from 1813 which was put in place as a direct result of specific types of crimes being committed. You choose to emphasize the crimes being committed. What you never seem to acknowledge is that it says the same thing as Nunn, the same thing I have said, and the same thing as the author of The Federalist Society posted piece. The right being referenced is "to bear" (carry). The preference expressed by the State of Louisiana was for open carry due to a rash of crimes having been committed using concealed carry as a means. In short, the argument was that banning concealed carry was permissible because open carry remained, thus the right "to bear" (carry) was not sufficiently infringed in that it was not precluded, just the manner was regulated.

What of Aymette v. State?

Quote:
...The Legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence. The right to keep and bear arms for the common defence is a great political right. It respects the citizens, on the one hand, and the rulers on the other. And, although this right must be inviolably preserved, yet it does no follow that the Legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the Legislature could pass no law upon this subject by which to preserve the public peace, and protect our citizens from the terror which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil of infinitely greater extent to society than would result from abandoning the right itself...
What you choose to emphasize are the hypothetical possibilities the court used as justification for why a state could regulate the manner of carry as evidence that concealed carry is not "the right." Yet, the court specifically stated...

Quote:
...the court confine themselves entirely to the consideration of the distinction between a law prohibiting the right, and a law merely regulating the manner in which arms may be worn. They say there can be no difference between a law prohibiting the wearing concealed weapons and one prohibiting the wearing them openly.

We think there is a manifest distinction. In the nature of things, if they were not allowed to bear arms openly, they could not bear them in their defence of the State at all. To bear arms in defence of the State is to employ them in war, as arms are usually employed by civilized nations. The arms, consisting of swords, muskets, rifles, etc., must necessarily be borne openly; so that a prohibition to bear them openly would be a denial of the right altogether. And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the State, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence.

But a prohibition to wear a spear concealed in a cane would in no degree circumscribe the right to bear arms in defence of the State; for this weapon could in no degree contribute to its defence, and would be worse than useless in an army. And, if as is above suggested, the wearing arms in defence of the citizens is taken to mean the common defence, the same observations apply...
Which was Scalia's reason for the citation; i.e., that commonly used arms were protected for individual self-defense, but that dangerous and unusual weapons were not. To my point, note the court's concern regarding "denial of the right altogether." Once again, the state chose a manner of carry, giving preference to militia useful arms, so as not to entirely infringe upon the right "to bear."

As to page 54...

Quote:
...It is demonstrably not true that, as JUSTICE STEVENS claims... “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself...

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” ... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”...
That is the bulk of page 54 and the first part of page 55, mostly eliminating reference citations. Where in that does it hold that open carry is the natural exercise of the right and that concealed carry is held, by SCOTUS rather than several states in the 19th Century, as unconscionable? How does it differ from what I have purported that Heller holds; i.e., that some form of carry is required to be available, that such is not tied to militia service, that states have been allowed to determine the manner of carry appropriate to their jurisdiction, that commonly used arms were protected for individual self-defense, but that dangerous and unusual weapons were not?

Once again, you are pushing an interpretation/interpolation as what Heller said as opposed to what Heller actually says and specifically references. I give you credit for providing page numbers this time; but, you have yet to establish your case as factually accurate. Further, you have yet to demonstrate that you know what Heller actually says as opposed to what you presume it means.

Last edited by TrappedinCalifornia; 06-13-2021 at 8:38 AM..
  #648  
Old 06-13-2021, 9:30 AM
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Originally Posted by TrappedinCalifornia View Post
It'll depend on the browser you're using.

In Chrome, the 3 vertical dots in the upper right hand corner of the screen. Click and "Find" will be on the pull down menu.

In FireFox, it'll be the three horizontal bars in the upper right hand corner of the screen. Click and "Find In Page" will be on the pull down menu.

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Thank you for your help. Also your posts about “carry” are entirely accurate (my opinion) and are appreciated.

Thanks again!
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Old 06-13-2021, 9:53 AM
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Originally Posted by mrrabbit View Post
YOU read DC v. Heller.


They do say that OC is the natural exercise of the right - and reference two state cases examples - detailing the open and honest nature of OC.

And they do say that CCW may be regulated by the states and prohibitions thereon may be upheld - noting that concealment is preferred by criminals and assassins alike.

=8-|
Opinions below from a random guy on the internet without legal training, and are worth the price you paid for them:

Not only is this flatly incorrect, and as others have noted Heller doesn’t say this, it’s also misleading. The references here are specifically used to support the reading of the 2nd in pre-civil war legislation that the enumerated right was not tied solely to the Militia, but instead was an individual right.

“D
We now address how the Second Amendment was inter*preted from immediately after its ratification through the end of the 19th century….
2. Pre-Civil War Case Law
The 19th-century cases that interpreted the Second Amendment universally support an individual right un* connected to militia service.” Heller, p32 & p37

We could go into p54 as well, but frankly you either are not discussing this in good faith, or are completely intractable. Either way I think continuing the discussion won’t be fruitful.

To argue these examples support OC vs CC is erroneous at best and disingenuous at worst. I give you an “A” for persistence, though.
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  #650  
Old 06-13-2021, 10:00 AM
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I am not pushing an interpretation - that is a strawman that YOU and others here are pushing.
Okay. ALL of us are wrong and you are uniquely gifted with understanding because...

Quote:
Originally Posted by mrrabbit
DC v. Heller says exactly what it says - SCOTUS said it.

Not I.
We can't find it and you refuse to provide specific reference. It doesn't do anyone any good to say "read Heller." We have. We have proven so by providing specific quotes. We can't find it and/or don't see it. You refuse to provide quotations and, instead, vaguely reference the case or page numbers; something I just demonstrated was that the page numbers you reference don't say what you think/claim they do.

Quote:
Originally Posted by mrrabbit
SCOTUS twice (1876 and 2008) noted that ccw regulations may be upheld.

Not I.
There is no debate on this. You act as if we don't understand, despite my, in particular, noting just that. By the way, so can open carry regulations be regulated insofar as court rulings have gone. (Remember, by definition, regulation doesn't have to be solely 'negative;' i.e., restrictive.) But, as SCOTUS has established, though they have failed to recently reinforce, total elimination of "to bear" cannot be justified.

Quote:
Originally Posted by mrrabbit
SCOTUS referenced open carry as the natural exercise - referencing State cases and previous text, history and tradition.

Not I.
Where? Specifically!!! Quote it with citation. Put up or shut up. It's not up to us to prove you right. It's up to you to establish that you are. Where in Heller did they explicitly say that. As I just showed, you are the one not only using that phrase, but spinning that interpretation; contrary to what the text, history, and tradition you pointed to and I documented actually says.

Quote:
Originally Posted by mrrabbit
SCOTUS corrected a plaintiff on the militia, and referenced TWO militias, one preexisting, one created.

Not I.
Yep. But, Scalia specifically noted the 'militia' as the reason for codification, not the right itself.

Quote:
...That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric... Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people... It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the
citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER’s assertion that individual self-defense is merely a “subsidiary
interest” of the right to keep and bear arms... is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself...

JUSTICE STEVENS’ view thus relies on the proposition, unsupported by any evidence, that different people of the founding period had vastly different conceptions of the right to keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties...
Quote:
Originally Posted by mrrabbit
SCOTUS noted that The People (preexisting), The Peoples' Miltiia (preexisting) and both as forming and providing for the security of a free State (Polity) are what are protected under the 2A.

Not I.

SCOTUS noted that the subset of the preexisting Militia created by States and Congress to form a more effective fighting force are creatures of Article I, Sec. 8, Cls 12-13...not the 2A

Not I.
See above.

Quote:
Originally Posted by mrrabbit
If you and others here don't like my continued pointers to DC v. Heller, and don't like what DC v. Heller literally says . . .

. . . take it up with SCOTUS.

Not I.

They own it...

Not I.
What we're taking up with you is the narrative you continue to push. YOU own that in that we have demonstrated that it is NOT what Heller actually says and you continue to refuse to demonstrate how it is; instead, providing vague allusions to the case or page numbers, continuing to repeat the narrative, but never providing quotes in support of your contention or to demonstrate how our understanding is in error.

You have a story and you're sticking to it. Okay. But, what we want to know is why your story is correct and virtually everyone else's version is wrong. Simply saying "you're wrong, SCOTUS said" is NOT proof. Show us where SCOTUS actually said it as opposed to you interpreting/inferring it. As I've said all along, I'm open to the idea that I have it wrong - IF - you can clearly show me where SCOTUS said what you claim they said. Thus far, you haven't done so and actually openly refused to do so; evidently content to declare that I and many others are simply 'wrong' and we should take it up with a SCOTUS who didn't say what you claim they said so far as we can discern.

That's not teaching. That's not providing 'pointers.' That's...

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  #651  
Old 06-13-2021, 10:36 AM
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Originally Posted by mrrabbit View Post
Literal reading of the authoritative public record is NOT an opinion.

It's simply a reference - a pointer.

=8-|
Mmmmm, not biting. I’m upgrading my take on your intent as intractable AND trolling.

No skin off my nose. You are welcome to your opinion, as indefensible as it is.
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  #652  
Old 06-13-2021, 11:00 AM
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So how will Scotus rule open carry is the right in this case when neither plaintiffs nor defendants are even taking this position? And which liberals on the court will join in that opinion?
  #653  
Old 06-13-2021, 11:24 AM
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At 2 minutes 25 seconds.

Notice even Kavanaugh calls out Heller as identifying concealed carry as expressly regulatable in Heller.
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Old 06-13-2021, 12:15 PM
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Of course scotus will say concealed carry can regulated. Just like they would say open carry can be regulated.

The real question are, in a state that has essentially banned open carry and concealed carry is the only viable form of carry, is scotus going to kick the question the way the peruta en banc panel did, will they word their opinion so that open carry is the right, or will they say you have to allow some form of carry and the state may choose that form (where shall issue is the de facto form of carry open or concealed depending on the state).

1) Now that the court is 6-3, Scalia is dead, Kennedy is gone, Robert’s has no say, and it’s been 13 years since Heller, I find it highly unlikely they are going to take the case and kick it the way the peruta en banc panel did. If they wanted to wait for open carry case then they have just denied cert to avoid bad precedent, because it’s a 5.5-3.5 conservative court. They wouldn’t waste a high profile case only to avoid the question.

2) you’re high or have a traumatic brain injury to think scotus is going to tell NYC or LA or SF that they have to allow open carry. It’s simply not how scotus works. They do not push against norms that hard. It’s not their style and hasn’t been for hmmm about 125 years now.

3) scotus will come to the conclusion that traditionally open carry is the protected right because concealed carry was regulated at the time the 2A was ratified. However in today’s modern era, conceal carry is the most popular form of carry. Forcing states to issue conceal carry licenses to law abiding citizens would satisfy the right, and be consistent with the traditional idea that one form of carry can be regulated to the point that the right is “infringed” so long as another form of carry is allowed.

Now regardless of what Heller says and how it was written in order to placate Kennedy so that the individual right could be the majority of a 4-4-1 court (the author is dead), and the noticeable change in court composition, ask yourself, given who scotus is and how they’ve ruled, which one of these scenarios is the most probable outcome? My point is, if you so far disconnected from scotus’s style that you think they are going to tell NYC that they have to allow open carry, how the hell do you possibly think anyone is going to buy the “open is the protected right” argument?
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Old 06-13-2021, 12:42 PM
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Originally Posted by mrrabbit View Post
Wasn't in the question taken up in cert...so doubt it...unless they take it upon themselves to bring it into the discussion.

But would Thomas, Alito, Kavanaugh, Gorsuch or Barrett force it into the discussion?

Usually, that's something we accuse the liberals of doing as part of their "radical" behavior.

They took a broad categorical question and narrowed it upon taking it up on cert - that suggests the discussion will be narrow as well.

=8-|
SCOTUS literally CHOSE to make the question about concealed carry. They didn't mention open, didn't mention concealed, they mentioned carrying outside the home to give the absolute WIDEST possible latitude for SCOTUS and SCOTUS made the question about "concealed carry".

If you want to bullsyit that it wasn't a "real" open carry case it doesn't matter. The fact SCOTUS transformed a case that didn't say concealed carry into a concealed carry case means they can do that with EVERY OTHER CASE. If SCOTUS can't demand concealed carry then they can continue to dodge the question of open carry or even more broadly "bearing arms" because they already have.

If SCOTUS can't mandate or make concealed carry satisfy the right they can deny bearing arms indefinitely with the powers and precedents they've already used. Literally the only case you can make is only the right to carry non-handguns is the right, and since NYSRPA asked about "carrying handguns outside the home for selfdefense" that is not protected. Of course that would contradict your oh so precious Heller protecting handguns...
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  #656  
Old 06-13-2021, 1:18 PM
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No they didn't. They clarified what the language meant when it was written and that's different than "reinterpreting."
Having thought about this, I think I've been less exact than I should have been, conflating the right with protection thereof. It's not the scope of the right that is in question here, it's the scope of its protection. The right is a natural, preexisting one. The only limitations on the scope of the right itself are purely natural, i.e. those limitations that nature itself imposes through natural law, precisely because it is a natural, preexisting right. For the right to be natural, it must arise from nature itself. For it to be preexisting, it must have existed prior to any man-made law.

SCOTUS is engaging in reinterpretation of the scope of the right's protection because the scope they come up with differs from, and is smaller than, the logical understanding of the scope of the right's protection that the founders held.

The plain question is: does the 2nd Amendment protect battlefield weaponry? Well, the founders clearly understood that it did, because their weaponry that they privately held was battlefield weaponry, and they used it to good effect to win the American Revolution against their own government's standing army.

Now SCOTUS is claiming that the protection of the right does not include battlefield weaponry. This is directly at odds with what the founders clearly believed. Not only does logic applied to the founders' situation lead to this conclusion, the founders went so far as to include the militia purpose into the 2nd Amendment, thus codifying a minimum purpose for that protection. But if one interprets the protection of the right to be independent of the stated purpose in the 2nd Amendment, then that violates Marbury v Madison's admonition that:

Quote:
Originally Posted by Marbury v Madison, 5 US 137 at 174
It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.
Well, the militia clause of the 2nd Amendment is part of the Constitution, and the words of the 2nd Amendment don't require the militia clause to be without effect. To read the scope of the 2nd Amendment's protection of the right to exclude battlefield weaponry is to insist that the prefatory clause is not operative with respect to the 2nd Amendment's protection of the right, because for it to be operative here means that it defines a minimum scope of the protection of the right, namely that which is necessary for the militia to be able to carry out its stated purpose: the security of a free State. That purpose requires battlefield weaponry because that purpose includes the ability of the militia to go up against the government's own standing army and prevail (the militia can't guarantee the security of a free State without that ability), and we know that because that's precisely what the founders of the country did in the first place. Hence, the prefatory clause demands that battlefield weaponry be protected, and this is so because the prefatory clause is a purpose for protection of the right.


Quote:
Clarification can be shown by the SCOTUS examining why there are things like "prefactory clauses" and the use of such in that particular instance. It is the exact opposite of the above because it uses the constructs of language and grammar as the basis for it's reasoning and application instead of personal/consensus opinion/belief.
If it did that, then it wouldn't have, in essence, declared that battlefield weaponry isn't protected by the 2nd Amendment, a claim that is clearly at odds with what the founders obviously understood.

The prefatory clause doesn't simply state "the militia" as the purpose for the 2nd Amendment protection. It states the security of a free State. That is the militia purpose, and that is the purpose that defines the minimum scope of the protection the 2nd Amendment affords.

SCOTUS showed that the scope of the 2nd Amendment's protection includes something other than the stated militia purpose, that it also includes self-defense. But the way it did it is by disconnecting the militia purpose from the protection, and that is an invalid approach.


Quote:
The phrase "History and Text" means that what you're trying to say here isn't going to fly.

I also think it's beneficial to understand that judicial decisions on what the law "is", isn't supposed to be subject to the changing winds of society. If society doesn't like a particular law, then they are free to change it as long as that change is within the constraints imposed upon said society. (ie; the Federal and State Constitutions.)
Well, since the law (the 2nd Amendment, in this case) mentions nothing about forms of carry, it's probably fair to say that the protection it affords doesn't change with conditions that involve forms of carry.


Quote:
SCOTUS did include it's reasoning on the scope of the Right and why that scope exists in that form - The Militia. I'm fairly certain the source of your confusion on this comes from the fact that you seem to believe that lower courts (State courts) can, by including their differing "reasons", somehow avoid obeying the instructions from SCOTUS and that's perfectly fine with you merely because the lower courts "put it in writing" then stamped their official seal on it. Your reliance on Bliss as some kind of "magic talisman" is what tells me this.
No, not at all. My thinking was that if the state courts include conditional reasoning for interpreting the protection of the right a certain way, then that is implicit admission that the scope of the protection does change depending upon the validity of those conditions.

See below for Bliss.


Quote:
Bliss is an anomaly. In it's time, it wasn't universally accepted. Nor in most places, including the Supreme Court, followed or accepted. Were your position on this true, then Miller would have been decided differently.
Correct. The conclusion of Bliss wasn't universally accepted. And neither was the opposite of that conclusion. Which means there was disagreement within the founding generation as to whether concealed carry is protected by the 2nd Amendment. That is precisely what I'm saying, nothing more.

I used to believe that Bliss meant that the founding generation more likely than not understood concealed carry to be protected. But now that I'm aware of the history surrounding it, I no longer do. I only use it to point out that there was disagreement as to that. I don't know that it's possible to determine how much disagreement there was. It might have been minimal, or it might have been substantial. But clearly it wasn't so substantial as to prevent an alteration to the Kentucky constitution to negate Bliss.
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  #657  
Old 06-13-2021, 1:19 PM
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Originally Posted by mrrabbit View Post
The plaintiffs pushed a "carry" argument - for which the licensing was for handguns for which the State considers ALL to be concealable.

The State called it a concealed carry case.

The Supreme Court of the United States took it up on cert as a concealed carry and licensing question.

That is literally all we have to go by for this particular case - and all we have as authoritative references are Robertson v. Baldwin, DC v. Heller, McDonald v Chicago, and Caetano v. Massachusetts.

All else is conjecture and opinion.

And yes, there were precedents referenced in DC v. Heller in which certain handguns were recognized for the purpose of open carrying.

Feel free to browse Guncite.com

=8-|
Perfect, so all a state needs to do is call any firearm "concealable" and then it's a concealed carry case. This doesn't help your argument.
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  #658  
Old 06-13-2021, 1:28 PM
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It'll depend on the browser you're using.

In Chrome, the 3 vertical dots in the upper right hand corner of the screen. Click and "Find" will be on the pull down menu.

In FireFox, it'll be the three horizontal bars in the upper right hand corner of the screen. Click and "Find In Page" will be on the pull down menu.

I don't know about Edge, Opera, etc.
Also, if you're using Windows, then hitting ctrl-f (hold the "ctrl" key down and then press "f") will put you into "find mode" irrespective of which browser you're using.

Similarly, on a Mac, command-f (hold the "command" key, which is the one with "command" and a weird squiggly symbol on the bottom row of the keyboard, and then press "f") will do the same.
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  #659  
Old 06-13-2021, 1:52 PM
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Originally Posted by wireless View Post

3) scotus will come to the conclusion that traditionally open carry is the protected right because concealed carry was regulated at the time the 2A was ratified. However in today’s modern era, conceal carry is the most popular form of carry. Forcing states to issue conceal carry licenses to law abiding citizens would satisfy the right, and be consistent with the traditional idea that one form of carry can be regulated to the point that the right is “infringed” so long as another form of carry is allowed.
IMO wireless is correct, but even #3 overshoots what I’m expecting to happen. Forget about OC vs CC, or even the right to carry. Everyone here, understandably for gun owners, wants these rulings to go further than they ever do. Even in Heller, Scalia reminds us of the slow pace of clarifying the Bill of Rights “It should be unsurprising that such a sig*nificant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.”

Given the narrow question at hand, I’ll think we are going to see something along the lines of “Reaffirm possession of firearms is an individual right, commonly used for personal protection. NY law allows for a permit to carry firearms outside the home, therefore they must accept ‘self defense’ as a valid ‘proper cause’ to issue the permit.” Period. There will be reference to the facts (conceal carry in this case) but it won’t affect the constitutionality of CC or OC, which will be left to regulate by the States. It may not even settle the question if ANY form of carry must be allowed. If we were all good to Santa last year, we might get a ruling that says the 2nd enshrines the right of individuals to carry outside the home- which would mean States would need to have SOME form of carry allowed or they are infringing on the right. Regardless, the State retains the ability to regulate nearly all manner and type of permit/permit less carry. That would be a bonus. In no instance will it address open vs concealed as the enumerated right.

We’ll see. In any case, it’s going to be good news. How good will depend on how low your expectations are.
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Old 06-13-2021, 2:50 PM
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Not arguing, just pointing out the particular problem.

States are using the "all handguns are concealable" position to blanket ban all handguns behind a regulatory scheme.

New Jersey, New York, Maryland and others do this.

There are plenty of handguns out there where by design and / or intent were and are not intended for concealment.

=8-|
ATF is literally trying to redefine SBRs right now, and even back to NFA the entire idea behind regulating SBRs and SBS's was to get rid of concealable arms.

If you open courts to being able to define any weapon as concealable, then they can and will define any firearm as concealable from being able to wear a trench coat to having it in a vehicle to disguising it as a bellhop's cart.

Until you get into self-propelled artillery, which are military weapons and per Heller are not protected.

One has to give Rabbit. Either Heller is not the end all be all of the 2nd amendment and, in fact, hopefully we get a ruling that overrules it and says yes, at least radiological dirty bombs are protected if not fission/fusion bombs as well as smaller trifles like killer drone swarms and anti-aircraft arrays and not-even-an-afterthought things like disguised pintle-mounted heavy machine guns in SUVs and trucks...

Or courts have full sovereign authority and ability, and PROVEN HISTORY of being able to completely redefine away any "bear" and thus get possession taken too because the ability to carry/conceal them enters them into the nexus of interstate commerce and thus able to be banned (per Wickard/Raich reasoning).

Sorry, either courts have full authority to destroy Bear in any reasonable way, or they have the ability to protect Concealed carry and are moving that route in NYSRPA. Or possibly both! But there's no reading at this point that courts HAVE to rule in favor of open carry or hear an open carry case when they can transform a question of law that explicitly left it open "carry outside the home" into a concealed carry question.
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  #661  
Old 06-13-2021, 3:18 PM
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But there's no reading at this point that courts HAVE to rule in favor of open carry or hear an open carry case when they can transform a question of law that explicitly left it open "carry outside the home" into a concealed carry question.
If courts can transform a question that was asked into a question they want to answer, then they can likewise issue any decision at any time for any reason, and "justify" it by way of claiming that it answers the altered question.

It also means the court can come up with the answer it wants to issue first, and then transform the question into one that would result in that answer.

We already know that courts engage in ex post facto justification of decisions (rather than using reasoning to arrive at a decision). Now they can take that a step further.

Is the Supreme Court doing that here? Well, the Court had 4 months between the time of cert petition (12/17/2020) and time of grant with the changed question (4/26/2021). That's plenty of time for it to come up with a basic answer first (the details of which might take considerably longer to formulate), for which it can then change the question to match. But it's hard to really say if that's what has happened here. All I can say is that this opens the door wide for such games.

I have to wonder if the Court has done something like this before ...
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  #662  
Old 06-13-2021, 3:44 PM
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If courts can transform a question that was asked into a question they want to answer, then they can likewise issue any decision at any time for any reason, and "justify" it by way of claiming that it answers the altered question.

It also means the court can come up with the answer it wants to issue first, and then transform the question into one that would result in that answer.

We already know that courts engage in ex post facto justification of decisions (rather than using reasoning to arrive at a decision). Now they can take that a step further.

Is the Supreme Court doing that here? Well, the Court had 4 months between the time of cert petition (12/17/2020) and time of grant with the changed question (4/26/2021). That's plenty of time for it to come up with a basic answer first (the details of which might take considerably longer to formulate), for which it can then change the question to match. But it's hard to really say if that's what has happened here. All I can say is that this opens the door wide for such games.

I have to wonder if the Court has done something like this before ...
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  #663  
Old 06-13-2021, 4:10 PM
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Originally Posted by wireless View Post
Of course scotus will say concealed carry can regulated. Just like they would say open carry can be regulated.

The real question are, in a state that has essentially banned open carry and concealed carry is the only viable form of carry, is scotus going to kick the question the way the peruta en banc panel did, will they word their opinion so that open carry is the right, or will they say you have to allow some form of carry and the state may choose that form (where shall issue is the de facto form of carry open or concealed depending on the state).

1) Now that the court is 6-3, Scalia is dead, Kennedy is gone, Robert’s has no say, and it’s been 13 years since Heller, I find it highly unlikely they are going to take the case and kick it the way the peruta en banc panel did. If they wanted to wait for open carry case then they have just denied cert to avoid bad precedent, because it’s a 5.5-3.5 conservative court. They wouldn’t waste a high profile case only to avoid the question.

2) you’re high or have a traumatic brain injury to think scotus is going to tell NYC or LA or SF that they have to allow open carry. It’s simply not how scotus works. They do not push against norms that hard. It’s not their style and hasn’t been for hmmm about 125 years now.
Judge Kavanaugh lists off all things which can be regulated , open carry is not among them.

Judges aren't legislators they can't water down rulings because New York people will go bananas.
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Old 06-13-2021, 4:34 PM
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Judge Kavanaugh lists off all things which can be regulated , open carry is not among them.

Judges aren't legislators they can't water down rulings because New York people will go bananas.
A) They did not go to an in depth analysis of open vs concealed, so I have no idea how you gathered those two things. And Kavanaugh at his confirmation hearing talking about "the opinions in Scalia's Heller" is not the same as having a case in front of him as SCOTUS judge where open carry if open and concealed carry is effectively banned in NYC.

B) LOL what planet have you been living on? Judges aren't suppose to, but that's all they've done since FDR. There's a great SCOTUS blog article that goes into this fact using numbers, but anyone who has been paying attention knows they always consider this.
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Old 06-13-2021, 4:44 PM
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A) They did not go to an in depth analysis of open vs concealed, so I have no idea how you gathered those two things. And Kavanaugh at his confirmation hearing talking about "the opinions in Scalia's Heller" is not the same as having a case in front of him as SCOTUS judge where open carry if open and concealed carry is effectively banned in NYC.

B) LOL what planet have you been living on? Judges aren't suppose to, but that's all they've done since FDR. There's a great SCOTUS blog article that goes into this fact using numbers, but anyone who has been paying attention knows they always consider this.
SCOTUS is not the 9th circuit. Corrupt judges may act in the way your describe, real judges don't ignore prior rulings.

They already ruled in Heller what can be regulated. it can't be ignored, the judges certainly will not ignore it.
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Old 06-13-2021, 5:09 PM
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SCOTUS is not the 9th circuit. Corrupt judges may act in the way your describe, real judges don't ignore prior rulings.

They already ruled in Heller what can be regulated. it can't be ignored, the judges certainly will not ignore it.
In 1954 SCOTUS ignored what they wrote in 1896. In 1873 they invented a non-severable clause that is found no place in the constitution.

We've been living in a corrupt SCOTUS does what they want until someone threatens them. Which FDR did and got what he wanted. Ironically Eisenhower was unwilling to after he appointed Warren and probably should have. I'd trade the Guatemala, Iran, or Cuba coups for a coup of Warren anyday.
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Old 06-13-2021, 5:29 PM
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In 1954 SCOTUS ignored what they wrote in 1896. In 1873 they invented a non-severable clause that is found no place in the constitution.

We've been living in a corrupt SCOTUS does what they want until someone threatens them. Which FDR did and got what he wanted. Ironically Eisenhower was unwilling to after he appointed Warren and probably should have. I'd trade the Guatemala, Iran, or Cuba coups for a coup of Warren anyday.
i don't think it's a good bet that SCOTUS will ignore prior rulings..

mrrabbit would say concealed carry won't be protected, but I suspect they took the case because concealed carry will be protected, that doesn't mean open carry can be banned.
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Old 06-13-2021, 5:53 PM
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i don't think it's a good bet that SCOTUS will ignore prior rulings..
I'm sorry, you're totally right, they did NOT ignore prior rulings. They explicitly repudiated their prior ruling, which, when taken with the ability to invent **** out of thin air like Texas v. White, the two limits on their power- that it has to be in the constitution, and that Stare Decisis restrains them- means there are no restraints on court power but practical Schmittian political limits.

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mrrabbit would say concealed carry won't be protected, but I suspect they took the case because concealed carry will be protected, that doesn't mean open carry can be banned.
I mean... all anything means is what is said. The fact they haven't used the Privilege and immunity clause doesn't mean it's not valid or constitutional... it just means it doesn't matter. Open carry does not matter if it's not used or has no effect. Use it or lose it is the rule of muscle, politics is a power game of which your muscles need to work or else they atrophy...
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Old 06-13-2021, 6:57 PM
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Currently . . . concealed carry is protected insofar as a State's (polity) right to regulate it as it sees fit. It is NOT protected as an individual right.

The people of a state, and the institutions they form decide whether their CCW regulations are permitless, shall-issue, may-issue or no-issue. Not the federal government.


Is SCOTUS taking this up on the question they formed to double down on DC v. Heller?

Is SCOTUS taking this up on the question they formed to start federally regulating what is currently a state right?

Is SCOTUS taking this up on the question they formed to address equal protection issues?

n++;

Lotsa ways they can go with this one...

=8-|
I think they will put a finer point on what regulation is permitted on concealed carry. Each of those regulatory buckets from Heller need this kind of drilling down.
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Old 06-13-2021, 8:21 PM
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Oh yes they did, by disconnecting their interpretation of it from the militia purpose.

They wouldn't have declared that the "fit" between the right and the militia clause could be arbitrarily poor otherwise.


The militia purpose, i.e. the "security of a free State", includes the militia being able to go up against the government's own standing army if/when the government imposes tyranny, and that requires that the militia be able to keep battlefield weaponry, something that the Supreme Court said is not protected.
You are as wrong as ever on this point.

“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim*ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right”
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Old 06-13-2021, 11:33 PM
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You are as wrong as ever on this point.
Am I?


Quote:
“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim*ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right”
Yes, that is the passage from which I derive my claim.

What exactly is the point of even raising the possibility that weapons like the M-16 may be banned, and that the presence of such bans would change nothing about the Court's interpretation of the right or the scope of its protection, unless the Court intends to uphold such bans in the first place? The Court here is using how they interpret the right or the scope of its protection to justify the fact that such bans, if they are to uphold them, would render the fit between the prefatory clause and the protection of the right nearly nonexistent.

The Court here is anticipating this objection: "but your interpretation of the 2nd Amendment would render the militia powerless to fulfill the stated militia purpose!" And it is doing so by saying "yes, well, how we interpret the right and its protection is independent of whether or not that interpretation would render the militia unfit to fulfill its purpose".

But that is precisely my objection here. Doing so renders the stated militia purpose effectless. And that is plainly disallowed by Marbury v Madison.

--

If you nonetheless disagree with the above, then please explain your interpretation of what the Court stated in the above, and explain why they raised the specter of a ban on weapons like the M-16, and how the fit between the militia purpose and the protection of the right to arms can be arbitrarily bad through the Court's interpretation thereof, if the Court has no intention to even consider upholding bans on battlefield weaponry.

Remember: if the militia cannot fulfill its stated purpose due to restrictions on it imposed by the government, then that contradicts the plain intent of the founders. The founders stated the militia purpose precisely because they wanted to ensure that the militia would always be able to fulfill it against all enemies of a free State. Among other things, that's what the Second Amendment is for. You simply don't bother to state a purpose for something you're creating unless you intend that purpose to always be fulfillable by that something. What in the world would be the point otherwise? To wax poetic or something??

One more thing: the litmus test of this is whether or not bans on battlefield weaponry would be upheld by the Court. If they uphold such bans then they will be going directly against the founders' intentions, period, because the founders intended the militia to always be able to fulfill its explicitly stated purpose.
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  #672  
Old 06-14-2021, 12:21 AM
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To act as an impediment...

...by virtue of its own existence as the preexisting body of ALL able bodied males.

100s of times more numerous than a subset drawn from it to create a standing army under Article I, Sec.8, Cls. 12-13.

=8-|

Oh yeah? You tell me how effective the founders would have been against the British army if they didn’t have and use personally owned battlefield weaponry.

You have to be daft to believe that the founders would agree with having their own personal battlefield arms banned. But that’s precisely what the Court is effectively claiming they’d be willing to uphold, even if they couched it in speculative terms.


Suppose the U.S. right now were actually still a British colony. If you took the founders into the present day, and they had to fight a revolutionary war against the modern British military (presume for the moment that Britain would have the same standing as a world power now as they did back then), do you think they would want battlefield weaponry for that? Of course they would. You'd have to be a moron to think otherwise. And that is why battlefield weaponry was, and would still be, understood to be protected: because it's necessary to ensure the security of a free State. Ensuring the security of a free State isn't just about giving the sitting government pause, it's ensuring you can bring it to heel by force, or free yourself of it, if you have to. Because, you know, that's exactly what the founders did in their own back yard.

Battlefield weaponry is a major requirement in a revolutionary war, and makes the difference between winning a revolutionary effort and losing it (there are other things that are necessary, but if you haven't the necessary weaponry then the effort is dead before it begins). Why else do you think we bring in battlefield weapons to support the faction that we want to win when there's some conflict in the world that we have some kind of stake in? You think we do it just for the fun of it?
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  #673  
Old 06-14-2021, 5:12 AM
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Yes, wrong as ever. It is the chasm created by the modern developments, not a re-interpretation of the right by the court that creates the disconnect between the purpose announced in the first clause and the right that is announced in the second clause.

I do believe Scalia was less than clear, in the sense that balancing the right against modern tanks and bombers is not the same as balancing the right against any sort of bearable arms. Try reading the passage differently.

First, although closing of the registration in 1986 is a slow rolling, de facto ban in my opinion, the fact is that M16s are NOT banned, just regulated under the NFA.

Scalia was making an extreme example with ‘M16s and the like’ of how dangerously close we are to effective detachment of the prefatory clause from the right, only to say that the right nonetheless could NOT be reinterpreted.

NOT.

The positioning of the question of whether EVEN M16s MAY be banned, a restriction with which many Americans would agree or indeed believe to be true already, was only to highlight the effective disconnect created by actual modern technology.

Then the court, to my delight and in a bit of a Louisiana Purchase moment, identified in the historical analysis of the right an intrinsic, individual right to self defense that stands alone from the purpose announced in the first clause.
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Old 06-14-2021, 10:02 AM
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Originally Posted by Maestro Pistolero View Post
Yes, wrong as ever. It is the chasm created by the modern developments, not a re-interpretation of the right by the court that creates the disconnect between the purpose announced in the first clause and the right that is announced in the second clause.
Wrong.

By and large, the chasm between modern developments and the ability of the militia and private citizens to have them... is rooted firmly in government enforced infringement of the right. The developments of military arms in civilian hands was fatally crippled by NFA and with a few questions which I WILL answer that even I, going near full AnCap here, don't think are clear.

Great, so what were the big developments that revolutionized warfare in WW1?
Simply put, machine guns, artillery, and real-time communication. You can say grenades and other things were powerful new developments and that's true, but in true militia effectiveness, iirc 1/2 the casualties of WW1 were from artillery. Machine guns forever limited the ability of mass charge tactics, so that Pickett's charge disappears and all you have are Banzai charges (though that's in the future) or Gallipoli. Finally you have u-boats and international shipping. I consider aerial warfare small enough I'll deal with in ww2.

This is the case for why machine guns are a militia necessity and forever changed warfare.
https://www.youtube.com/watch?v=UclsBepOfm4">https://www.youtube.com/watch?v=UclsBepOfm4" type="application/x-shockwave-flash" width="425" height="350">

Horses were basically made obsolete both in cavalry charges and as beasts of burden, but we're not being banned from cars and vehicles. Related to machine guns.

Okay, so ski resorts actually in fact do have artillery...
https://www.nbcnews.com/id/wbna4846442
Actually upon closer reading, they were borrowing it, and in fact even ski resorts limited use of artillery was enough to stress the munitions stockpile.
https://www.nbcnews.com/id/wbna4846442

Others will point out with proper permitting you can own anything. I'm friends with a man who has designed and builds reusable NFA grenades where the spoon is the "receiver" and is going to reactivate an RPG. I'm perhaps a little blessed to know a bit more about this than most. The problem is... due to NFA and their destructive device regulation every munition requires the tax stamp in addition to all the paperwork. This makes the practical barrier to actually acquiring a sufficient stockpile of munitions, whether artillery shells or grenades or claymores to be too high for even private individuals.

This is incredibly important because that's basically what makes artillery... artillery. This is NOT a natural development, or a sudden acceleration of technology. This is 1914 where artillery is the driving development and everything, in fact, is still legal. Farmers can still use dynamite on their farms. This is taken advantage of in a senseless mass killing in 1927 at Bath School, Michigan.
https://infogalactic.com/info/Bath_School_disaster

As for other WW1 developments, you of course have poison gas and trench brooms (short barreled shotguns). The use of poison gas of course is barely used in WW2 due to treaties agreeing to the ban of it in the European theater, though there is some allegations of use on the Eastern front, same as well-documented explosive bullets also banned and not being brought up here. The use of the short-barreled shotgun was considered by Germans to be similar to use of exploding bullets and protested against US use of them, but they were overruled by America which proceeded to keep using them.

Miller famously bans the use of short-barreled shotguns as unsuitable for militia service which quite simply was wrong the day it was decided. As seen above, it was a preferred American weapon for close-in warfare in trenches, and can easily be analogized to urban warfare today. While use of Short barreled Rifles today has largely superseded them, systems like the masterkey SBS for locks and SBRs themselves are for increasing prevalence of armor. For a militia, a SBS makes exactly perfect sense for how cheap and prevalent they are, while perhaps not being as good as SBRs, they are field expedient.

WW2 developments are where things get fascinating. In the inter-war period many countries in Switzerland and Sweden produced a number of anti-tank rifles because tanks were developed but not strategic or important in WW1. Interwar development let people know tanks needed to be opposed, and so very large 20mm rifles like the Lahti and the Solothurne are developed as crew-served anti tank weapons. Given their diameter, these are NFA items. However that's not an insurmountable barrier to register a singular weapon. The problem is the arms development. Simply... tank armor got thicker. Thick enough that simple rifles aren't going to pierce tanks. That's where recoilless rifles and bazookas and the like come in. See 2 paragraphs above.

For fielding tanks, there are privately owned tanks, I have another friend who grew up driving some. The problem again, is that same limiting factor I keep hammering... explosives are too regulated and too expensive because both their expendable nature in addition to extra taxes and paperwork makes the actual functional usage of them useless. That's why you'll see plenty of cannons at Knob Creek but actual artillery was limited, and that issue is fatal. The fact is, explosives and area effect weapons are the crucial link that is missing. These WW1 developments are in most cases man portable and certainly unit and crew service. These infringements are directly tied to NFA.

Finally you have u-boats, or submarines today. Private submersibles do exist, but ironically enough are in many ways more expensive than planes. James Cameron, Ghislaine Maxwell, Jeff Bezos, and Roman Abramovitch, and drug cartels are pretty much the private owners I can think of. This in addition to the expense and the lack of gain- unless you're running drugs or women, there's not much strategic usage that isn't nuclear-powered long endurance submersibles; and even then unless you're actively attacking shipping which again... requires explosives.

Analyzing WW2 developments, we get cryptography, aerial bombing (yes yes, nuclear devices, but that literally only happened twice. Carpet bombing, firestorms, terror bombing, close air support, paratroopers, aerial reconnaissance, are all more common),

When it comes to Cryptography we DID have a big fight in the 90's and we're heating up for another big crypto war and there's a ton of nefarious backdoor efforts by government to destroy this, but technically it's still legal. When it comes to bombing, well... my continual harping on explosives applies, as well as FAA screwing with hardmounted machine guns for CAS or dogfights. We have recreational skydiving, so in fact paratroopers is in fact quite doable aerial reconnaisance is being superseded with satellites and drones, but those are subject to government suppression and signal jamming respectively. Finally, we can look to the cutting edge of warfare, the Armenia-Azerbaijan war where explosive drones (RC, not quadcopter) were used to devastating effect and show the future of small unit warfare. Again... explosives.

https://www.washingtonpost.com/world...38b_story.html

Mass manufacturing became simpler with truly set and forget interchangeable parts without tons of machining. Think sten guns. That genie is out of the bottle.

So now we're just left with the super ridiculous wunderwaffen- atom bombs, v1/v2 rockets, chemical and biological warfare.

I can argue for them... but to save space, let's make it brasstacks simple. Atom bombs haven't decided a war (Stalin was poised to invade Japan, and between Stalin and US invasion Japan wouldn't have been able to do anything and would have ceased in any recognizable form), v1 and v2 rockets are equivalent to missiles and between the drones, cheapened rocketry, and other things are main limiting factor is explosives.

Chemical warfare has been claimed to have been used by Assad vs. civilians... but he's been winning just fine without it, and aside from Saddam gassing people and terror attacks, it simply isn't relevant.

Biological warfare... that's way, way too big to get into. Another post entirely. Covid-19 makes this far too salient to cover in short form.

So ultimately, I conclude it's explosives that matter. And wouldn't you know it! The Weather Underground took advantage of explosives availability, and largely due to revolutionary communists the ability to buy dynamite by farmers and normal people is basically gone. Tim McVeigh found a workaround, and the feds watered down commercially available ammonium nitrate in addition to more paperwork and more scrutiny. The fact is, government has had its hand completely in restricting this. My friend who makes Destructive Devices can't share his plans easily as antiterrorism legislation has made easy sharing and open source designs "terrorism". There probably WOULD be massive simplification and lowered cost, but government has actually abridged 1st and 2nd amendments to destroy the market from being able to solve the high cost of explosives and make militia usage and manufacture viable. These were government and policy choices, not "natural market mechanisms".

Quote:
Originally Posted by Maestro Pistolero View Post
I do believe Scalia was less than clear, in the sense that balancing the right against modern tanks and bombers is not the same as balancing the right against any sort of bearable arms. Try reading the passage differently.

First, although closing of the registration in 1986 is a slow rolling, de facto ban in my opinion, the fact is that M16s are NOT banned, just regulated under the NFA.

Scalia was making an extreme example with ‘M16s and the like’ of how dangerously close we are to effective detachment of the prefatory clause from the right, only to say that the right nonetheless could NOT be reinterpreted.

NOT.

The positioning of the question of whether EVEN M16s MAY be banned, a restriction with which many Americans would agree or indeed believe to be true already, was only to highlight the effective disconnect created by actual modern technology.

Then the court, to my delight and in a bit of a Louisiana Purchase moment, identified in the historical analysis of the right an intrinsic, individual right to self defense that stands alone from the purpose announced in the first clause.
The handwaving about machine guns is a distraction from what really matters. Machine guns make suppressive fire cheap and easy, but anyone could tell that explosives if made cheap enough were always the future. Suppressive fire to overrunning positions with aerial bombardment that can be effectively made on demand by drones changes the battlefield entirely because air superiority suddenly becomes a fractal, minute to minute idea rather than a prevailing condition.

https://www.thedrive.com/the-war-zon...-whats-to-come

TL: DR- the militia clause IS detached from actual protection of weapons because it was always explosives that mattered, not machine guns. Machine guns are fun and cool and certainly helpful and useful to militias. However, given a choice between brrrrrrt and kaboom for militia purposes, it's not even a question what should be protected and necessary. Machine guns are heavily regulated but still available and still usable to a decent degree. Destructive devices are simply not. Not even ski resorts and private corporations can own and operate them. Farmers can't properly remove stumps, and as I know many people who got burned out during California wildfires, stump grinding simply isn't as good, nor is poisoning stumps, as dynamite is. Wildlife management for states is even harmed when it comes to blowing beaver dams. For all intents and purposes, the militia effectiveness with destructive devices has been fatally flawed, and until there is a dramatic loosening of destructive devices we have, effectively, completely neutered the militia.
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  #675  
Old 06-14-2021, 10:50 AM
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Yes, wrong as ever. It is the chasm created by the modern developments, not a re-interpretation of the right by the court that creates the disconnect between the purpose announced in the first clause and the right that is announced in the second clause.
So the Court claims. But my claim is that their interpretation of the right (or its protection) runs counter to the original understanding of the founders. That is the heart of the problem here.

The Court has made it clear how they're interpreting the right (or its protection). But that interpretation is incorrect if it fails to match how the founders clearly interpreted it.

The way the Court interprets the right's protection (that the only arms that are protected are those "lawful weapons" that people held) bootstraps preexisting bans into Constitutionality. It also bootstraps into Constitutionality any bans on new kinds of weapons as long as those bans come into being before the weapons in question can be acquired by law-abiding citizens for lawful purposes. A person cannot possess a "lawful weapon" if the weapon in question was banned from the start, or "regulated" into obscurity like machine guns are, because such weapons are by definition not lawful (more precisely, "not typically possessed by law-abiding citizens for lawful purposes"). This flies in the face of the entire point of the 2nd Amendment: to protect the natural right to keep and bear arms from the predations of government.


So your contention here is that the founders believed that battlefield arms would not be protected by the 2nd Amendment? Because that's exactly what it would have to be for you to consider the Court's interpretation to be valid.

Remember that the founders didn't bring just privately owned muskets and other small arms into the fight. They brought in their own privately owned artillery (cannons, explosives, and such). The claim you and the Court are making here is that the founders would have agreed to bans on the very weapons they used to win the American Revolution. I disagree with that very notion in the strongest possible terms. It is unthinkable to me that the founders were somehow the kind of dullards they'd have to be to agree to such a thing, and yet that's precisely what the Court, and you, are insisting upon.


Quote:
I do believe Scalia was less than clear, in the sense that balancing the right against modern tanks and bombers is not the same as balancing the right against any sort of bearable arms. Try reading the passage differently.
Bearable or not makes no difference here. The 2nd Amendment doesn't say it protects only bearable arms, it just says "arms". If the founders intended to protect only bearable arms, then clearly they would have said as much, no? And in any case, it wasn't just bearable arms that the founders brought into the conflict, it was all the arms they could, bearable or not.


Quote:
First, although closing of the registration in 1986 is a slow rolling, de facto ban in my opinion, the fact is that M16s are NOT banned, just regulated under the NFA.
It doesn't matter. They've been regulated to the point that they are not "typically possessed by law-abiding citizens for lawful purposes".


Quote:
Scalia was making an extreme example with ‘M16s and the like’ of how dangerously close we are to effective detachment of the prefatory clause from the right, only to say that the right nonetheless could NOT be reinterpreted.

NOT.

The positioning of the question of whether EVEN M16s MAY be banned, a restriction with which many Americans would agree or indeed believe to be true already, was only to highlight the effective disconnect created by actual modern technology.
It's not "modern technology" that creates the disconnect, it's the law itself that does. That's the fallacy that you and the Court are operating under. The law defines what is "lawful", but it is precisely to constrain the law that the 2nd Amendment exists at all.

Might the weaponry in question still be rarely possessed by the citizenry? Of course. But we know from history, at least, that machine guns weren't exactly uncommon before the NFA, and we know that it was typical for military issued weapons to be brought home after wars prior to the NFA. The NFA made such weapons uncommon. Through the Court's own reasoning, the NFA bootstrapped itself, and prospective outright bans on machine guns, into Constitutionality.

But rare or not isn't the point of protecting arms. The point of protecting arms is so that, no matter how rare they might be, they can be available to the citizenry in the event they're needed by the citizenry to ensure the security of a free State. More precisely, to ensure that if they aren't available to the citizenry, it's not due to government restrictions or government action.


Purpose is everything. The right itself is a preexisting natural one, but its protection in the 2nd Amendment is not. Its protection has a stated minimum purpose (self-defense adds to that, it doesn't replace it). The Court simply is not legitimately empowered to ignore that purpose, for if the Court is legitimately empowered to do that, then it is legitimately empowered to "interpret" the Constitution in arbitrary ways, up to and including declaring itself the entire ruling body over the country.


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Then the court, to my delight and in a bit of a Louisiana Purchase moment, identified in the historical analysis of the right an intrinsic, individual right to self defense that stands alone from the purpose announced in the first clause.
Don't misunderstand my argument. I'm not saying that the prefatory clause replaces self-defense as "the" purpose for protecting the right. I'm saying that the prefatory clause announces a purpose that cannot be ignored. But ignore it the Court does. And it is plainly incorrect to do so.
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Last edited by kcbrown; 06-15-2021 at 4:20 PM..
  #676  
Old 06-14-2021, 11:41 AM
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The State (polity), is free to draw a subset from within its OWN PREEXISTING MILITIA a body to be further trained and armed as necessary to further add to and increase the impediment necessary to a standing army that a federal government OR a foreign power might impose.
Sorry, this is utterly irrelevant.

If the state has the ability to train and arm the militia for the purpose of maintaining the security of a free State, then there's no need for the militia to possess its own arms in order to maintain the security of a free State, and therefore there's no reason to call out the security of a free State as the reason to protect the right of individual citizens to keep and bear arms.

And yet, the founders did state that very purpose as the reason for individual citizens to possess arms (and for such to be protected from the predations of government).


So no, your claim here is nonsensical.


The citizenry needs to be able to keep all weapons that are necessary for the security of a free State, precisely because it may be necessary to go up against any government, including state governments, in the process of maintaining the security of a free State.

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The preexisting militia is NOT SUPPOSED TO BE THE MILITARY,
No, but it is supposed to be able to go up against it, if necessary.

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NOR ARMED LIKE ONE,
Oh yes it is, precisely because it may need to go up against a military force, and may need to without any government help (indeed, it may be the government's forces that the preexisting militia may need to go up against).

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NOR STANDING AS ONE.
I said nothing about standing as one. I never did. This is strictly about weaponry, not training (necessary though it is), or organization, or anything else.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 06-14-2021 at 11:44 AM..
  #677  
Old 06-14-2021, 12:06 PM
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The citizenry needs to be able to keep all weapons that are necessary for the security of a free State, precisely because it may be necessary to go up against any government, including state governments, in the process of maintaining the security of a free State.
Do you believe access to NFA items is enough to satisfy this need for more effective weapons for militia use ?
  #678  
Old 06-14-2021, 12:18 PM
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Do you believe access to NFA items is enough to satisfy this need for more effective weapons for militia use ?
That is an excellent question. I don't know if the NFA is the only law that impedes the militia's ability to acquire the necessary arms.

What I can say is that the NFA does prevent the militia from acquiring at least some of the arms that are necessary for it to be able to fulfill its stated purpose today.


I recognize that there are other things that might prevent the militia from being able to acquire the necessary arms. The 2nd Amendment is intended to address only government restrictions. Whatever else there might be that would prevent the militia from acquiring the necessary arms, the purpose of the 2nd Amendment is to ensure that the government isn't included in that.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
  #679  
Old 06-14-2021, 1:52 PM
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Originally Posted by kcbrown View Post
That is an excellent question. I don't know if the NFA is the only law that impedes the militia's ability to acquire the necessary arms.

What I can say is that the NFA does prevent the militia from acquiring at least some of the arms that are necessary for it to be able to fulfill its stated purpose today.


I recognize that there are other things that might prevent the militia from being able to acquire the necessary arms. The 2nd Amendment is intended to address only government restrictions. Whatever else there might be that would prevent the militia from acquiring the necessary arms, the purpose of the 2nd Amendment is to ensure that the government isn't included in that.
Then of course there are states such as California that ban the acquisition and possession of NFA items...
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Old 06-14-2021, 2:18 PM
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If the State concludes that its preexisting militia is not up to the job of being an impediment to a tyrant or tyrannical federal government, the State in question is free draw on it and create a militia under Article I, Sec., 8, Cls 12-13 and arm it as it deems necessary.
That's BEYOND stupid. The State still maintains power, but as EXPLICITLY stated in the constitution the 9th amendment reserves powers for the PEOPLE and the 10th amendment- the FOLLOWING one- reserves power for the states OR to the people. The primacy of the PEOPLE SUPERSEDES the primacy of the STATE.

PEOPLE were ALWAYS recognized as sovereign and having rights that in fact could trump BOTH federal AND state power.

YOU are trying to create a tyrannical entity that isn't tyrannical as long as it is a state. Or, to put it simply, YOU believe in monopoly government, just as long as it's a state enterprise. The founders very, very much disagreed with you.

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Originally Posted by mrrabbit View Post
What YOU want is for the preexisting militia to be the same as a standing military.

The founders DID NOT intend for the preexisting militia of the people to be the very body by which the State, a tyrant or a "warlord" would use to impose its will on the very same people.

=8-|
The founders DID want SPONTANEOUS action by the people to overthrow or contest tyranny. Shay's Rebellion AND the Whiskey Rebellion WERE, in fact, failures but the system operating PROPERLY. Not some pissant tyranny that as long as it's a certain size government has a monopoly on sovereignty. The NORTH believed in sovereign communities SMALLER than states and the SOUTH believed in homesteads and a neofeudalism; both loving their state governments dearly but from which resistance was in fact sovereign.

Go ahead and find something that states that State power is fully irrevocably sovereign and neither federal nor tyranny against the people removes their legitimacy. Go ahead.
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