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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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  #521  
Old 05-01-2021, 10:44 AM
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Originally Posted by igs View Post
Pointing a gun at someone is an act of assault. It has nothing to do with keeping or bearing.
Pointing a gun at someone is a method of carry used by both police and regular people in some special circumstances. Restricting the circumstances when such "carry" is allowed is an example of a restriction that is not an infringement.
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  #522  
Old 05-01-2021, 11:14 AM
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Originally Posted by TrappedinCalifornia View Post
What was that? You haven't been able to convince enough people to agree with you so we can do something about it; i.e., exercise our right, our duty it to throw off such Government? Is that an 'infringement' on our rights? Is it a dereliction of our duty? Or, is it simply a lack of desire and/or ability to exercise our theoretical rights in a practical and successful manner...
Agreed, conservatives and anyone who refers to themselves as such is literally useless and admits to having feet of clay that cares more about preserving an evil system rather than fighting for actual values or principles.

The founders didn't convince *enough* people, they convinced the *right* people and chose a judicious time where the French wanted to pay back the English for the French-Indian war, and the Russians also wanted to blunt the British ambitions. Along with a careful cabal of rich guys with connections abroad. But aside from the Christian nation of England, and powerful orators like William Wilberforce, freedom and liberty are not given, but won and paid in blood.
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Otherwise, the two societies cannot coexist and, at some point, one will be 'eliminated' if the physical space is to be jointly occupied.
Correct. And when it comes to organizing principles of society, to philosophical starting points, there can NOT be competition or the alternative. To quote one of MY favorite movies, "There can only be one". Since the industrial age, ideologies are totalistic because of the economic implications.

The free-market and Labor-Importation lobby can't abide by a Export-Cartel and Servile economy. The War of Secession ended not just with the end of voluntary union, but the end of the Slave economy even in UNION states. This leads most people to conclude the civil war was ABOUT slavery, rather than it was ABOUT secession, and the mission creep and totalizing nature of the war forced it to become about slavery and the economic implications.

Since then, all wars cannot brook competition except for complete destruction and remaking of the other countries.

The Franco-Prussian war starts as what is Germany, who is Germany and becomes who will fall under the Iron Chancellor's economic system and economic zone including the world's first worker's compensation.

The Second Boer War starts as England attempting to expand their colonial hold in Southern Africa, and eventually becomes a war of identity that leads to the very first concentration camps to destroy the ability of Boers to conduct their guerilla war and leads to the complete takeover of South Africa by the British Empire, with all the economic and logistical implications.

The Great War starts as the conflict between who can have colonies or surface fleets large enough to protect their colonial trade, then becomes about the principle of self-determination of small countries, and the economic destruction of Germany becomes a foregone conclusion.

The Japanese Wars of occupation start as giving Japan a different place to become a great power because they were shut out of Europe and become about securing supplies and labor force to give them an independent trade and economic zone so they can't be embargoed (they eventually are).

The even Greater war starts as an economic impossibility of paying War Indemnities with a broken economic zone, turns into an identity and ideology based war, and then with the entry of the USA, becomes about who will be Hegemon of the world- USSR or USA? And victory for the USA, and defeat of Germany is either if we pastoralize Germany and condemn 10s of Millions of Germans to starve to death, or if we implement an industrial Germany based on complete repudiation of Wartime German ideology and myths. Same with Japan. And to lightly touch on an entire library worth of books, kicks off the decolonization of the world as colonial economies are BTFO and replaced with "free trade" hegemony, or Soviet subversion, and Non-Aligned countries that attempt to play one side then the other, notably India and Israel.

All this is to say... acting like you can be left alone has been simply untrue since at least the civil war, and likely the French Revolution truly kicked off the ideological war. If you're not fighting for the supremacy of your ideas, you are going to be defeated by your opponents and have your ideology wiped out. Conservatives have been complaining about the totalization of war and ideologies since the Civil war and still talk about states rights, which were vanquished in the 1860s and national sovereignty was vanquished worldwide in the 1940s... but they still insist on the losing principle.


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Originally Posted by TrappedinCalifornia View Post
That's the very basis of the current brouhaha. The 'balance point' is, potentially, being 'reset' and not everyone is in agreement as to where that 'point' needs to be. The Founders clearly intended it to favor the individual and society (Government) was created with the idea of creating 'order,' but protecting individual rights/liberties. When speaking about 330+ million individuals with different positions on the spectrum of opinion regarding a 'proper' balance... I remember something from History on that too...

The real trick? Not displeasing all of the People all of the time.
No, the real trick is deciding when to spend political capital to do something very unpopular but shift the schwerpunkt of ideology and economics. Democrats fought public opinion and implemented the civil rights act, brown v. board, the Hart-Cellar act, social security expansion, fought long enough to keep them, and now they are considered sacrosanct and forever shifted the board.

Nixon did this with closing the Gold window.

Carter did this with nuclear power regulations destroying the ability of national nuclear power to ever be viable.

Reagan did this with financial deregulation.

Clinton did this with NAFTA.

Bush 2 did this with middle east occupation and fighting generational wars to secure land for Genie Energy and Israeli security and territorial ambitions.

Obama did this with Gay Marriage and Healthcare.

Trump attempted to do this with the Wall, economic populism, and withdrawal from the Mid-East and retrenchment in the Pacific (psychologically more than physically) which is being fought as strongly and with as much expertise as any opposing side has ever managed to muster.

Keeping people happy is stupid thinking. Knowing when you can get away with making them unhappy yet reap worthwhile gains that forever change the entire strategic game is what matters.

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Originally Posted by TrappedinCalifornia View Post
Insofar as Originalism and looking 'foolish,' you might wish to discuss that with the likes of Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. You know. The five Justices who we are depending upon for a favorable ruling; all of which being described or self-described as "Originalists/Textualists" to one degree or another.
And they're all liars perhaps with the exception of Thomas, and contingent on Alito. Gorsuch doesn't believe in Originalism except to cloak his true motivations or preferences, as his "originalist" ruling on gender should demonstrate. And frankly, as long as people like you still feel you can point to these meek "champions" to do the fighting for you and secure your future you are useless as an ally because you don't even understand how decisions are made or power is exercised.
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  #523  
Old 05-01-2021, 11:39 AM
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  #524  
Old 05-01-2021, 1:30 PM
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Originally Posted by TrappedinCalifornia View Post
Okay. But, realize that the difference between 1760 and 1773 is slight and that first 'definition' was the original/primary meaning, even if taken in isolation as distinct from the second. BOTH meanings held weight at the time of the Founding and while you 'dismiss' the first almost entirely, I note that both need to be understood in conjunction with one another.
I don't dismiss the first on the basis of preference, I dismiss it on the basis of logic. See below.

Furthermore, the definition I quoted is identical in both the 1755 and the 1773 version (which is obviously the most applicable version). See page 1114 of the PDF of the first part of the 1773 version. The definition is identical to the 1755 version's definition.

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Your argument...



My argument...
Your argument fails to understand my argument. Yes, the Constitution is a contract. So what? That doesn't help your argument, because for it to be material to your argument, then your argument (remember that we're discussing the definition of "infringed" as used in the 2nd Amendment) amounts to that contract saying, in the 2nd Amendment, "this contract shall not be violated". Well, no kidding. That's the entire point of a contract. And additionally, that point is already covered by the Supremacy Clause, making such an interpretation of the 2nd Amendment redundant.

So: is the right to keep and bear arms a law or contract? Because that is what the 2nd Amendment says shall not be infringed. No. The Constitution is a law or contract. The right is independent of contracts.

But let's suppose for the moment that the term "infringed" solely means "broken", as you appear to argue. What does it mean for the right to be broken? Does it mean, as we usually think, that it means for it to be rendered inoperable? I would argue that it cannot mean solely that here. Why? Because that would mean that any restriction or combination of restrictions is allowable so long as the right hasn't been eviscerated (meaning, can still be exercised in some manner, in some place, and at some point in time).

But that amounts to the argument that the founding generation understood that it was permissible for the government to restrict you to one firearm, possessed solely within the home, with only one round of ammunition for it. No, it is ridiculous to argue such a thing when the founding generation had just come out of a shooting war in which the private arms and ammunition of the citizenry were instrumental in their victory and when the rallying cry for the war itself was liberty.

But if the 2nd Amendment protects against more than total evisceration of the right, then that means the meaning of the term "infringed" cannot solely be that which refers only to evisceration, which means that its definition must encompass more than just the first definition.


So it's not that I ignore the nature of the Constitution here, it's that I'm applying the most sensible definition on the basis of the context.


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What I am arguing is that "shall not be infringed" is referring to the exercise of the right insofar as the protections afforded by the 2nd Amendment. The 2nd Amendment does NOT confer the right. That right exists separate from the 2nd Amendment or Government. That's the very basis of a 'natural right.'
And nothing that I say contradicts that. My point is that the term "infringed" in the context of its use in the 2nd Amendment was quite clearly understood by the founding generation to at least include "to hinder" in its meaning, which is an exact match for today's usage of "to restrict".


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While some may consider ANY 'hindrance' to the exercise of the right to be equivalent to 'destruction' of the right, such is not the case;
This, too, misunderstands my argument.

My argument is not that hindrance and destruction are the same. It is that if hindrance is disallowed, so too must destruction as a natural consequence. This is logically so because destruction of a right is the most complete form of hindrance of it.


With respect to "limitations on the right", I believe that you misunderstand the point of all that. It's not that certain infringements of the right are allowed, it's that the scope of the right itself is not unlimited. The scope of the Constitutional right is, per Heller, that which was understood at the time of its adoption. A claimed infringement on the right cannot be an infringement unless that which it infringes upon falls within the scope of the right. That scope is limited.

So it is not improper to say that the 2nd Amendment allows no restriction upon anything within the scope of the right as that scope was understood by the founding generation. That's what the plain text of the 2nd Amendment says and means. It is proper to say the the 2nd Amendment allows restrictions upon those things with respect to keeping and bearing arms that the founding generation understood to be outside of the scope of the right.

That might seem like mere pedantry. But it's not. It completely changes how one properly evaluates whether or not a restriction is allowed by the 2nd Amendment.
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Old 05-01-2021, 2:01 PM
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Pointing a gun at someone is a method of carry used by both police and regular people in some special circumstances. Restricting the circumstances when such "carry" is allowed is an example of a restriction that is not an infringement.
No, it's not a "method of carry". It is a use of the arm, and an expressive use of it at that. There is a crucial difference there. Carry is a way that one keeps the arm available for use, but is not in and of itself a use of the arm. Pointing the arm at someone is a use of the arm.
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  #526  
Old 05-01-2021, 3:29 PM
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No, it's not a "method of carry". It is a use of the arm, and an expressive use of it at that. There is a crucial difference there. Carry is a way that one keeps the arm available for use, but is not in and of itself a use of the arm. Pointing the arm at someone is a use of the arm.
Carrying in hand is most certainly a method of carrying. I "carry my groceries into the house" and I "carry my luggage," I don't "cook my groceries into the house" or tell the porter to "use my luggage to my room."

So you believe a restriction that prohibits carrying firearms in hand is an infringement?
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Old 05-01-2021, 3:51 PM
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Carrying in hand is most certainly a method of carrying.
But it is not "carrying in hand" that we're talking about here, it's intentionally pointing the weapon at someone else that we're talking about here. The latter is most certainly not mere carry, it is use.


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So you believe a restriction that prohibits carrying firearms in hand is an infringement?
If it is merely carry of the firearm in hand that is being prohibited, then yes I believe that to be an infringement.

If it is pointing the firearm at someone else that is being prohibited, then no, I don't believe that to be an infringement (of course, that depends on the specifics. It won't do to prohibit that in all circumstances because that would, as a side effect, prohibit defensive use of the firearm). And that is so because pointing a firearm at someone is not carry, it is use.

That said, if the founding generation believed carry in hand to not fall within the scope of the right, then restrictions on that are allowable, my personal beliefs to the contrary notwithstanding.


Where things get murky is with respect to accidentally sweeping someone when you're carrying. Is it permissible to restrict that? If the founding generation believed that sweeping people while carrying to not be within the scope of the right, then a restriction on that is permissible. But that is not what you were referring to.
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  #528  
Old 05-01-2021, 4:04 PM
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That said, if the founding generation believed carry in hand to not fall within the scope of the right, then restrictions on that are allowable, my personal beliefs to the contrary notwithstanding.
So we do agree that not every restriction is an infringement and that some restrictions are not an infringement and that believing that "shall not be infringed" means no restrictions whatsoever is not a correct interpretation of the 2A?
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Old 05-01-2021, 4:57 PM
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So we do agree that not every restriction is an infringement and that some restrictions are not an infringement and that believing that "shall not be infringed" means no restrictions whatsoever is not a correct interpretation of the 2A?
That's correct. Not every restriction on keep and carry is an infringement.

The 2nd Amendment says that the right shall not be infringed. That means what it says. But it requires that one understands what the right covers, i.e. the scope of the right. And the scope is that which the authors of the 2nd Amendment understood it to be.

Because the Constitution is a written document, the "right" referred to in the 2nd Amendment is that which the authors of the 2nd Amendment understood it to be. The whole point of a written document is to convey the understanding of its authors. And that is why the proper scope of the right is that which the founding generation understood, at least when the understanding of the authors cannot be ascertained. The founding generation was the direct audience of the Constitution, so when one cannot directly ascertain the intended meaning of the words by reference to that which the authors wrote, one must go further afield, and consult what the direct audience understood it to be. This is doubly so because the document itself was agreed upon through consensus, thus indicating that there was substantial consensus on the intended meaning. The founding generation at large was the intended audience.

Of course, neither the authors of the 2nd Amendment nor the founding generation itself are around to clarify any ambiguities that might arise in attempting to understand what the authors intended to convey. Dealing with this is exactly the purpose of historical analysis. The purpose is to reveal, as much as possible, the intended meaning behind the words the authors wrote.


Now, some might argue that the Constitution, being a relatively old work, does not fit well with modern needs, and thus one needs to "interpret" it in a modern context. That argument might hold water but for one thing: the fact that the authors of the Constitution provided a mechanism for amending it. The entire point of that mechanism is to make it possible to alter it to meet the needs of modern times. To insist on "interpreting" it in a modern context anyway, then, is to effectively insist on giving it arbitrary meaning on the basis of the vagaries of the current times. But if one is going to give something what amounts to arbitrary meaning, then one may as well dispense with the thing in the first place, and do whatever one wants, since that's effectively what one will do under those circumstances anyway. The Constitution might as well not exist at all then.

So, either:
  1. The Constitution carries its original intended meaning as best as is possible to ascertain, or
  2. The Constitution is a meaningless piece of paper that doesn't exist in practice.

Now, it's important to understand one thing with respect to the original intended meaning, particularly as applied to rights. The original understanding of rights, just as the understanding of rights is today, is primarily conceptual. We understand "speech" to be "communication", and know that communication has many forms, some of which are uniquely modern. The right to free speech was never specifically about the right to write with pen and paper, but rather encompasses all means of communication. Similarly, the understanding of the right to arms is not "the people have the right to keep and bear muskets" (the arms that were available at the time), but rather "the people have the right to keep and bear, at a minimum, whatever arms are not inappropriate for securing themselves and a free state". Rights serve purposes, and it is for those purposes that we have them, and it is, above all else, the original understanding of those purposes that defines the scope of the right.

This is why people have the right to communicate amongst themselves on the internet. And it is why people have the right to keep and bear modern military rifles, semiautomatic handguns, and a whole host of other weaponry that is present now. And it's why "common use" is the wrong test of whether or not a weapon is protected, since "common use" is in part an artifact of the effect of laws. Machine guns, for instance, would certainly be in "common use" today were it not for the effects of law. We know this because they were in "common use" immediately prior to the enactment of laws against them. But whether or not they are, or would be, in "common use" is irrelevant as long as they are not inappropriate for the purposes behind the right.

All of which is to say: if something is not inappropriate for the originally understood purposes behind a right, laws which restrict that something are infringements upon the right. Heller's claim that the "fit" between the prefatory clause (which announces one of the purposes of the right) and the protection of the right can be arbitrarily small is an invalid claim on its face. The Court was plainly wrong in saying that, and it doesn't matter that it's the Supreme Court that said it, because their claim amounts to the claim that destruction of an explicitly announced major purpose of the right is allowable by way of restrictions upon it that conflict with that purpose. The Heller Court insists that the right is detached from the purpose, but this is exactly wrong. Rights exist because of their purposes. What is true is that the right to arms exists for purposes that the 2nd Amendment doesn't explicitly state, and thus the protection of the right extends to those purposes as well. The purpose stated in the 2nd Amendment isn't the only purpose of the right or its protection, but it is a purpose nonetheless, and thus restrictions which would conflict with that purpose are just as null and void as are restrictions that would conflict with any of the other purposes the founders understood the right to have.

So, to summarize, yes, restrictions on "keep" and "bear" are allowable, so long as those restrictions are on things that are outside the original understanding of the scope and purposes of the right.
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  #530  
Old 05-01-2021, 5:10 PM
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That's correct. Not every restriction on keep and carry is an infringement.
Agreed - I was responding to a statement that any restriction is an infringement and that "absolutist" means that there can be no restrictions, both of which are incorrect. Restrictions are not necessarily infringement and "absolutist" means that the *minimum standard of review for core 2A should be strict scrutiny, not that any restriction fails automatically.

(* "Minimum" signifies that the whole interest-balancing approach might not be appropriate, another can of worms, but that the effective restriction analysis must be very stringent and in favor of the right.)
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Old 05-01-2021, 6:06 PM
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Agreed - I was responding to a statement that any restriction is an infringement and that "absolutist" means that there can be no restrictions, both of which are incorrect. Restrictions are not necessarily infringement and "absolutist" means that the *minimum standard of review for core 2A should be strict scrutiny, not that any restriction fails automatically.

(* "Minimum" signifies that the whole interest-balancing approach might not be appropriate, another can of worms, but that the effective restriction analysis must be very stringent and in favor of the right.)
In what follows, when I say "originally understood" or "original understanding", I refer to the understanding of the authors of the work (law, Constitution, etc.) in question or, when that cannot be ascertained, the understanding of the authors' contemporaries.

Scrutiny is, generally, wholly inappropriate for determination of whether or not the right protected by the 2nd Amendment is being infringed. There is one exception (see below). The reason for this is clear:
  1. The scope of the right protected by the 2nd Amendment is that which was originally understood
  2. The plain meaning of the text of the Constitution is that which was originally understood, and is clear. The 2nd Amendment says "shall not be infringed" and the originally understood meaning of that term is easily ascertained by reference to historical sources.
  3. The Court is not allowed to violate the plain originally understood meaning of the Constitution by letting an infringement, as measured by the originally understood meaning of the Constitution and the original understanding of the scope of the right, stand.
  4. Scrutiny does not in any way ask what the original understanding of the scope of the right was, nor does it seek to find the originally understood meaning of "infringed" as used by the 2nd Amendment.

All of which is to say that because "scrutiny" can result in the law being upheld when the law infringes upon the right as originally understood, it is wholly inappropriate as a mechanism for ascertaining infringement except when original understanding of the scope of the right is impossible to glimpse.

The Court is tasked with handling "cases and controversies". "Interpreting" the law, which includes the Constitution, is sometimes necessary for that. But that necessary power does not confer the power to define the Constitution or laws underneath it in a way that conflicts with their originally understood meanings. "Interpreting" here means, quite clearly, ascertaining the meaning of that which is being interpreted as intended by its originator, not as intended by the Court. And the command of the Constitution is clear: the right shall not be infringed, and that's that.

If the law imposes upon something that falls outside of the scope of the right as originally understood, then the law can stand in the face of the 2nd Amendment. But in that case, scrutiny is not needed, at least for a determination of 2nd Amendment violation. And where the law imposes on something that falls within the originally understood scope of the right, it doesn't matter what scrutiny has to say about it -- letting the law stand under those conditions is a clear violation of a direct command of the Constitution.

Which logically means that scrutiny is off the table as a legitimate way of determining whether or not a law infringes upon the right, save for when the originally understood scope of the right as regards the law in question is completely impossible to even partially determine. Under those conditions, it is appropriate to presume that the activity in question falls within the scope of the right (and thus that the law infringes) if the scrutiny check would reject the law in question.

For the things that have been raised to the courts thus far, there is no excuse for employing scrutiny at all.


Oh, one other thing: the 2nd Amendment is an amendment to the Constitution. This means that whenever there is a conflict between anything that preceded it, which includes conferred powers, and the 2nd Amendment, it is the 2nd Amendment, and not that which it conflicts with, which wins.
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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.

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Old 05-01-2021, 6:24 PM
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Here is a good article discussing a very important new book by Stephen Halbrook examining the “right to bear arms” back to the 1300’s.

https://reason.com/volokh/2021/05/01...k-book-review/

I guarantee the majority in NYSPRA v. Corlett will cite to this book and the sources discussed in this book.
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Old 05-01-2021, 7:06 PM
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Originally Posted by Elgatodeacero View Post
Here is a good article discussing a very important new book by Stephen Halbrook examining the “right to bear arms” back to the 1300’s.

https://reason.com/volokh/2021/05/01...k-book-review/

I guarantee the majority in NYSPRA v. Corlett will cite to this book and the sources discussed in this book.
And yet Stephen Halbrook completely misrepresents the reason why the South upheld bans on concealed carry while striking down bans on open carry - by putting forth the "contingency" argument.



The southern courts were very specific about why concealed carry bans were upheld and why open carry convictions and bans were struck.

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Old 05-01-2021, 10:38 PM
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I don't dismiss the first on the basis of preference, I dismiss it on the basis of logic.
What you appear to be engaged in is an 'exercise' which ignores some things; as speedrracer suggests, 'cherry picks' others; and weaves them into an 'argument' which sounds reasonable, but is vulnerable to... logic.

Quote:
Originally Posted by kcbrown
Furthermore, the definition I quoted is identical in both the 1755 and the 1773 version (which is obviously the most applicable version).
Yet, all versions contain the first, primary definition; i.e., "broken." You 'emphasize' one definition over the other, whereas I have bluntly stated that...

Quote:
Originally Posted by TrappedinCalifornia
BOTH meanings held weight at the time of the Founding and while you 'dismiss' the first almost entirely, I note that both need to be understood in conjunction with one another.
Also mooting the idea of a 'contract.'

Quote:
Originally Posted by kcbrown
Yes, the Constitution is a contract. So what?... for it to be material to your argument, then your argument... amounts to that contract saying, in the 2nd Amendment, "this contract shall not be violated"... And additionally, that point is already covered by the Supremacy Clause, making such an interpretation of the 2nd Amendment redundant.
The Bill of Rights was an addendum to what we both agree was an existing contract; i.e., the Constitution. At the time of the Founding, the Constitution was an 'evolving' document and was not considered 'fully ratified' until 1790; with the Bill of Rights being ratified in 1791. The Preamble to the Bill of Rights states the purpose of the 'addendum;' i.e., not 'everyone' was satisfied that the Constitution was sufficient unto itself or was fully 'protective' of individual or state rights...

Quote:
...THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution...
Thus, logically and procedurally, it makes sense that 'reinforcement' would be intrinsic; i.e., "the Supremacy Clause" is still a matter of debate in terms of what does/doesn't fall within its domain; i.e., it generally establishes the Constitution and federal law as supreme. Application to specifics is what is still open to 'challenge.' Put another way, States can pass State-specific laws and the Federal Government cannot preempt them before taking effect; preemption generally requiring a challenge in the Courts to resolve the 'conflict' or perceived 'conflict.' It's that very basis upon which many argue over whether the 2nd Amendment precludes (or should preclude) many State laws; i.e., if it is fully protective of "the right," then how can a State 'infringe' upon "the right?"

Quote:
Originally Posted by TrappedinCalifornia
...That is why the Bill of Rights is, specifically, understood to be and was intended to be limitations on Government action in the context of breaking the social contract with regard to pre-existing, natural rights. Thus, the 2nd Amendment isn't strictly about "the right" so much as it is about the codification of the right and what is 'permissible' insofar as Government restriction(s) on the exercise of that right... Thus, "hinder" would be understood as roughly synonymous with "break;" i.e., breaking in the sense of creating an hindrance to the exercise of the right through violation of the 'contract' that was the Constitution/Bill of Rights. Such is NOT, by definition, a "destruction" of a right...
This brings us to...

Quote:
Originally Posted by kcbrown
So: is the right to keep and bear arms a law or contract? Because that is what the 2nd Amendment says shall not be infringed. No. The Constitution is a law or contract. The right is independent of contracts.
Yes. The RIGHT exists independent of Government...

Quote:
Originally Posted by TrappedinCalifornia
What I am arguing is that "shall not be infringed" is referring to the exercise of the right insofar as the protections afforded by the 2nd Amendment. The 2nd Amendment does NOT confer the right. That right exists separate from the 2nd Amendment or Government. That's the very basis of a 'natural right.'

Thus, the 2nd Amendment can be said to recognize the right, but it speaks, specifically, to what Government can/can't do in terms of the exercising of the right. The 'social contract' therefore speaks to the exercising of the right within society and given that there were and have been restrictions on the exercising of the right via not only laws, but social conventions, traditions, and tolerance for both, the 'contract' is somewhat malleable in terms of what was intended vis a vis 'limitations' on the exercise of the right. How malleable is the question at hand.
You then create a straw man to bolster your argument...

Quote:
Originally Posted by kcbrown
But let's suppose for the moment that the term "infringed" solely means "broken", as you appear to argue.
I didn't say it 'solely' meant. I said they have to be understood in conjunction with one another; i.e., that hinder would have been understood as a 'subset' of broken, not the other way 'round or, as you argue, that 'hinder' would supersede the primary/original definition. Your premise is that the 2nd Amendment is about 'the right' and, 'tangentially,' about the exercising of the right...

Quote:
Originally Posted by kcbrown
What does it mean for the right to be broken?
According to both of us, the right exists regardless of 'contract' or 'Government.' Thus, how can Constitution/Amendment do anything except RECOGNIZE the right as existing?

It can't. That is why the 2nd Amendment speaks to the "why" of codification. As Scalia argued in Heller...

Quote:
...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...
Codification of the right was recognition of the right, a statement of "what is." What you appear to be wrestling with is that the 2nd Amendment is not, grammatically, 'perfect' in terms of what it recognizes and what it protects. Such traditionally forms the basis for many of the problems we have. Thus, we are, in many respects, left with interpretation, which is the current that has carried us into trepidatious waters. Why trepidatious? As I said: "How malleable is the question at hand." Or, as you state it...

Quote:
Originally Posted by kcbrown
Does it mean, as we usually think, that it means for it to be rendered inoperable? I would argue that it cannot mean solely that here. Why? Because that would mean that any restriction or combination of restrictions is allowable so long as the right hasn't been eviscerated (meaning, can still be exercised in some manner, in some place, and at some point in time).
Such is precisely what we have been 'fighting' in the courts; i.e., that very phrasing often being posited as the apparent mindset of the courts. Yet, as we've seen at SCOTUS in Thomas' dissent in Friedman...

Quote:
...The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist... And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns... The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles... The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting... Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons...
The 'conservative Justices,' who now, ostensibly, hold the majority at SCOTUS, seem more prone to what we have always understood than the lower courts, in some respects, continue to argue...

Quote:
Originally Posted by kcbrown
...that the founding generation understood that it was permissible for the government to restrict you to one firearm, possessed solely within the home, with only one round of ammunition for it...
To the point, as you allude to, of reductio ad absurdum.

Quote:
Originally Posted by kcbrown
But if the 2nd Amendment protects against more than total evisceration of the right, then that means the meaning of the term "infringed" cannot solely be that which refers only to evisceration, which means that its definition must encompass more than just the first definition.
Which is what I have said. The difference is where we place our emphasis. That emphasis is premised on two differing perspectives. Mine is that the 2nd Amendment recognizes the right and protects exercise of the right. Your's is that the 2nd Amendment protects the right and that exercise of the right is synonymous with the right. Thus, when you say...

Quote:
Originally Posted by kcbrown
So it's not that I ignore the nature of the Constitution here, it's that I'm applying the most sensible definition on the basis of the context.
Your argument makes sense... IF... we accept your premise. As has been noted, exercise of the right has ALWAYS had 'limitations.' Such is not in dispute. The degree of acceptable limitation is what is open to question. Were we to accept your premise, then one could sensibly and reasonably argue that the Founders actively engaged in "destroying the right" via the 2nd Amendment and by the practices which were in place at the time.

Quote:
Originally Posted by kcbrown
My point is that the term "infringed" in the context of its use in the 2nd Amendment was quite clearly understood by the founding generation to at least include "to hinder" in its meaning, which is an exact match for today's usage of "to restrict".
As I have said, it does include 'hinder.' I also agree that it is approximately synonymous to 'restrict.' However, the contract (the 2nd Amendment) was, as has been established, not created with the idea of 'absolutely no restrictions.' Thus, at issue, is what limitations (restrictions) were permissible within the context of what the Founders understood them to be and how should those limitations be applied in the modern context.

Put another way, what degree of 'hindrance' to the exercising of the right to keep and bear arms was considered 'acceptable' without infringing upon the right to a point where the right itself is compromised and what is the modern equivalency?

Quote:
Originally Posted by kcbrown
My argument is not that hindrance and destruction are the same. It is that if hindrance is disallowed, so too must destruction as a natural consequence. This is logically so because destruction of a right is the most complete form of hindrance of it.
Logically, that is a propositional fallacy. "If A, Then B." It presumes that any form of hindrance in the exercise of the right will result in complete hindrance (destruction) of the right itself. As I have noted, a 'restriction' on the exercise of a right within the context of society is not, by definition, a violation of the right, no matter how, individually, we may perceive it as such. But, it does speak to what is actually the source of some of our frustration with the court when we talk about "the question posed."

A court can only deal, directly, with the question posed and is very limited in how far it can 'stray' from that question. It's just like Heller when Scalia noted, in effect, that the decision did not address the entirety of the field that is 2nd Amendment jurisprudence. The decision(s) must be focused on the issue/question at hand in the case.

Our frustration is that what we see today is a patch quilt of restrictions. No single patch is, in and of itself, necessarily violative of the right. Our question is whether an assemblage of restrictions violates the right itself, thus violating or breaking the social contract. Unfortunately, that is not how the restrictions have been put in place and that's not how the courts, primarily, deal with issues. In fact, it's likely the very reason that SCOTUS narrowed the question in the case this thread is dedicated to. If you'll recall, SCOTUS acted similarly with Heller.

In many respects, we are arguing to a similar end...

Quote:
Originally Posted by kcbrown
So it is not improper to say that the 2nd Amendment allows no restriction upon anything within the scope of the right as that scope was understood by the founding generation. That's what the plain text of the 2nd Amendment says and means. It is proper to say the the 2nd Amendment allows restrictions upon those things with respect to keeping and bearing arms that the founding generation understood to be outside of the scope of the right.
The difference is that, by definition, you are correct, in theory, that any hindrance of the right is within the scope of the right. Thus, no restriction is, technically, 'outside' the scope of the right. But, that's not what the 'contract' is about. The contract speaks to how much 'compromise of the right' is acceptable/expected vis a vis the individual's exercise of the right within the context of society and at what point that compromise, in effect, 'destroys' the right itself.
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Old 05-01-2021, 11:55 PM
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Originally Posted by kcbrown View Post
...Heller's claim that the "fit" between the prefatory clause (which announces one of the purposes of the right) and the protection of the right can be arbitrarily small is an invalid claim on its face. The Court was plainly wrong in saying that, and it doesn't matter that it's the Supreme Court that said it, because their claim amounts to the claim that destruction of an explicitly announced major purpose of the right is allowable by way of restrictions upon it that conflict with that purpose. The Heller Court insists that the right is detached from the purpose, but this is exactly wrong...
That's not what Heller said. That is an interpretation of Heller which is at odds with what Scalia specifically warned in Heller. It was not 'detachment' from the 'purpose.' It was a demonstration that the 'militia' was not the SOLE purpose for the amendment; i.e., even if it was the primary motivation, it was not the sole purpose and, thus, not the sole basis of the right.

Scalia very carefully worded the Heller decision and 'seeded' other, traditionally lawful acts, throughout the decision...

Quote:
...The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home...
Unconnected with, as in "not exclusively dependent upon."

Such as, not "limited to," self-defense within the home.

Those aren't my, personal, interpretations. They are based on precisely what Scalia said in the decision...

Quote:
...JUSTICE STEVENS places great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment... It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. In any case, what JUSTICE STEVENS would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense . . . must sometimes have been almost overwhelming.” ...

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 thinks it significant that the Virginia, New York, and North Carolina Second Amendment proposals were “embedded . . . within a group of principles that are distinctly military in meaning,” such as statements about the danger of standing armies... But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right... Other than that erroneous point, JUSTICE STEVENS has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast, New Hampshire’s proposal, the Pennsylvania minority’s proposal, and Samuel Adams’ proposal in Massachusetts unequivocally referred to individual rights, as did two state constitutional provisions at the time... 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...

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 limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right...
In short, as Scalia noted in Heller, don't confuse "a" or even "the" primary reason for codification with what was codified.

Thus, Heller actually says precisely what you argue...

Quote:
Originally Posted by kcbrown
Rights exist because of their purposes. What is true is that the right to arms exists for purposes that the 2nd Amendment doesn't explicitly state, and thus the protection of the right extends to those purposes as well. The purpose stated in the 2nd Amendment isn't the only purpose of the right or its protection, but it is a purpose nonetheless, and thus restrictions which would conflict with that purpose are just as null and void as are restrictions that would conflict with any of the other purposes the founders understood the right to have.
As I just said in the previous post, we do differ a bit here...

Quote:
Originally Posted by kcbrown
So, to summarize, yes, restrictions on "keep" and "bear" are allowable, so long as those restrictions are on things that are outside the original understanding of the scope and purposes of the right.
...in terms of agreeing that any restriction, by definition, theoretically falls within the 'scope' of the right. Where we disagree is that the 2nd Amendment delineates or speaks to what is accepted/expected in terms of an individual's 'compromise' of that scope in exchange for societal interaction/inclusivity and where any limitation(s), in effect, 'destroy(s)' (i.e., negates/moots) the right itself.

In a sense, what you posit is what Breyer stated in his Heller dissent...

Quote:
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by JUSTICE STEVENS—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are— whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do...
Except, that's precisely what the majority did do. No where does the majority claim the prefatory clause (the reason for codification) is 'detached' from the 'operative clause' (what was codified). Instead and to the contrary, the posit was that the right is (and, by derivative, the 'limitations' are) not 'dependent' solely on service in a 'militia'...

Quote:
...The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” ... Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose...

...But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause...

...This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”...

Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause...

3. Relationship between Prefatory Clause and Operative Clause

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied 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...
In short, it was the dissent which argued that the majority 'detached' the purpose from the protection. Instead, what the majority did was argue precisely what you claim, that the overt purpose for the codification did not limit the right to that, specific purpose.
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Old 05-02-2021, 1:16 AM
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Originally Posted by lowimpactuser View Post
...And they're all liars perhaps with the exception of Thomas, and contingent on Alito. Gorsuch doesn't believe in Originalism except to cloak his true motivations or preferences, as his "originalist" ruling on gender should demonstrate. And frankly, as long as people like you still feel you can point to these meek "champions" to do the fighting for you and secure your future you are useless as an ally because you don't even understand how decisions are made or power is exercised.
Leaving everything else aside, they're not my 'champions' and I didn't refer to them as such. Instead, I said...

Quote:
Originally Posted by TrappedinCalifornia
The five Justices who we are depending upon for a favorable ruling; all of which being described or self-described as "Originalists/Textualists" to one degree or another.
...in direct response to your declaration...

Quote:
Originally Posted by lowimpactuser
There is no way mentioning originalism makes you look like a fool who has as much power as Emperor Norton and people respect you as much, Norton in his Formal jackets and you in your bowties.
Those are the individuals we are, by default, dependent upon when it comes to SCOTUS and 2nd Amendment rulings. (I deliberately excluded Roberts because he isn't so much of a 'coin toss' as he is, or has become, more akin to a 'politician' than a 'Justice' in many respects; but, he too has been described as having a claim to being an "Originalist.") SCOTUS is, Constitutionally, as expressed by the Supreme Court on its website...

Quote:
...the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution...
That doesn't make them the 'final arbiter,' period. That power resides with We the People. However, it does make them a significant factor in how decisions are made and how power is exercised. (Isn't that precisely why we claim the Left wants to 'stack the Court,' in an effort to further bolster their exercise of power?) Thus, if by default, you are dependent upon, primarily, 55% of the membership, which is a 'balance' many have striven toward over the last several decades, then you cannot simply dismiss them as 'cowards' and 'meek' because you disagree with their take on certain issues. No one is ever going to agree with 100% of the rulings of any Justice, let alone 'group' of Justices, 100% of the time.

In this case, our dependence involves something of a 'gamble;' which, by definition, means 'uncertainty.' We've a fair inclination of how Thomas and Alito lean. But, no one here, including their supporters, is completely confident in Gorsuch, Kavanaugh, or Barrett when it comes to 2nd Amendment rulings. Yes. There is considerable HOPE. However, given that Gorsuch and Kavanaugh have been a 'mixed bag' in terms of their decisions overall and Barrett is still, primarily, an 'unknown' as a SCOTUS Justice, I don't believe anyone approaches being 'absolute' in their confidence.

Remember too, it is ill-advised to exclusively equate "Originalism/Textualism" with 'stout, unwavering conservatism.' Why? Because this country has always been premised on liberal (small "l," which is decidedly different than modern Liberalism, capital "L") principles. While small "l" liberal is more closely equated with small "c" conservative, there's a reason for the differentiation and such is not semantics nor insignificant.

While it is judicious to have something more than a 'single option' and legitimate to question motives/agenda (I share some concerns regarding Gorsuch and his overall philosophy), dismissing them out-of-hand with epithets isn't constructive. Why?
  • There are many 'forms' of Originalism/Textualism; not a single, immutable understanding.
  • We do not know, yet, with any certainty how they intend ruling.
  • No, single ruling is going to encompass the entirety of what we desire (or what we loathe). As I have noted, this is a 'long-game' of incremental steps and, as much as we would prefer it to be otherwise (at least in some respects), cannot come down to a single decision on the part of the Judiciary. It's taken many years to get where we are and there is no, 'magic' reset button which will instantly 'take you back' to a different era; even if Hillary Clinton may think otherwise.
  • As such, each ruling sets a base for subsequent rulings to come. At least, that appears to have been Scalia's plan; a plan which Thomas appeared to support and is attempting to continue momentum for.
So, while you are not entirely 'wrong' (despite the 'spin' you've placed on some of the historical events you cite), the primary source of your issue seems to be the same 'uncertainty' we all have, coupled with a lack of 'faith' in the System in terms of how it now exists and who the players are. While valid insofar as a personal opinion (and, as I just said, not entirely 'wrong'), it is not necessarily a 'truthful' or even factually accurate indictment of the players and where we stand now; if for no other reason than the very 'uncertainty' which underlies it. Instead, it is an expression of the frustration we all feel, to one degree or another, regarding being where we are now and the 'uncertainty' many of us feel shouldn't exist, but does.
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Old 05-02-2021, 10:21 AM
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Quote:
"Captain Preston, what made you go to the Concord Fight [on 19 April 1775]?"
"What did I go for?"
"Were you oppressed by the Stamp Act?"
"I never saw any stamps, and I always understood that none were ever sold."
"Well, what about the tea tax?"
"Tea tax, I never drank a drop of the stuff, the boys threw it all overboard."
"But I suppose you have been reading Harrington, Sidney, and Locke about the eternal principle of liberty?"
"I never heard of these men. The only books we had were the Bible, the Catechism, Watts' psalms and hymns and the almanacs."
"Well, then, what was the matter?"
"Young man, what we meant in going for those Redcoats was this: we always had governed ourselves and we always meant to. They didn't mean we should."[4]
[...]
Quote:
Here is the central problem in American history, as liberty and freedom are essential values in American culture. Scholars have attempted to study it in many ways.
The leading approach might be called the text-and-context method. It begins with American texts on liberty and freedom and fits them into an explanatory context that is larger than America itself. Historians have discovered many different contexts by this method. They variously told us that the meaning of American liberty and freedom is to be found in the context of Greek democracy, Roman republicanism, natural rights in the middle ages, the civic humanism of the Renaissance, the theology of the Reformation, English Commonwealth tradition in the 17th century, British opposition ideology in the 18th century, the treatises of John Locke, the writings of Scottish moral philosophers, the values of the Enlightenment, and the axioms of classical liberalism.
All these approaches have added to our knowledge of liberty and freedom but none of them comes to terms with captain Preston. As he reminded us, the text-and- context method refers to books he never read, people he never knew, places he never visited, and periods that were far from his own time. [5]
https://scholars-stage.blogspot.com/...new-right.html

All this angels dancing on the head of a pin, "what is anarchy, what is originalism" legalism is worth a bucket of warm spit if you don't have a tradition, aesthetic, and society that doesn't require long talmudic tracts and interpretations to follow. You will never get your Captain Prestons to win your freedom.

I guess if I have to choose an originalism based on a founding father, I'll give you Patrick Henry:

Quote:
...Patrick Henry's ideas of natural Liberty were not learned from treaties of political theory. His idea of a “state of nature” was not the philosophical abstractions that it had been for Locke. Thomas Jefferson said of Patrick Henry with only some exaggeration that he “read nothing, and had no books.” Henry's lawyer-biographer William Wert wrote, “of the science of law he knew almost nothing, of the practical law he was wholly ignorant. He was not only unable to draw declaration or a plea, but incapable, it is said, of the most common or a simple business of his profession, even the mode of ordering a suit, giving a notice, or making a motion in court.” Patrick Henry's principles of natural Liberty were drawn from the political folkways of the border culture in which he grew up….
Not for nothing is this incredibly scholarly "originalism" that is supposed to be the only expression of right wing sentiment basically created and reified by Catholics and their insistence on slavish loyalty to Rome rather than Anarchic liberation from decadent and fallen Capitals that Luther declared sovereignty need not come from Apostolic Succession...

Quote:
Originally Posted by TrappedinCalifornia View Post
Leaving everything else aside, they're not my 'champions' and I didn't refer to them as such. Instead, I said...
Subtle distinction between being "your champion" and "the champion fighting for you". I don't think you champion them insofar as your political system and admitted method of power requires them to fight for you as a champion like Hector vs. Achilles or like a champion in trial by combat. Except instead of guilt or innocence, it's your rights on trial...

Quote:
Originally Posted by TrappedinCalifornia View Post
Those are the individuals we are, by default, dependent upon when it comes to SCOTUS and 2nd Amendment rulings. (I deliberately excluded Roberts because he isn't so much of a 'coin toss' as he is, or has become, more akin to a 'politician' than a 'Justice' in many respects; but, he too has been described as having a claim to being an "Originalist.") SCOTUS is, Constitutionally, as expressed by the Supreme Court on its website...
Constitutionally, as defined by themselves, of course. John Marshall and his usurping power and sovereignty and all...

Quote:
Originally Posted by TrappedinCalifornia View Post
That doesn't make them the 'final arbiter,' period. That power resides with We the People. However, it does make them a significant factor in how decisions are made and how power is exercised. (Isn't that precisely why we claim the Left wants to 'stack the Court,' in an effort to further bolster their exercise of power?) Thus, if by default, you are dependent upon, primarily, 55% of the membership, which is a 'balance' many have striven toward over the last several decades, then you cannot simply dismiss them as 'cowards' and 'meek' because you disagree with their take on certain issues. No one is ever going to agree with 100% of the rulings of any Justice, let alone 'group' of Justices, 100% of the time.
I dismiss no one as a coward merely for disagreeing with me. I've met many enemies who I consider to be far more courageous than purported "allies". Kavanaugh is a coward for taking all women clerks because he wanted to virtue signal he lurvs his stronk women, and is the GREATEST advocate of stronk women so there, you mean Senatorial confirmation inquisition! They are cowards because they are provably so, in physical courage, personal life choices, and policy choices. Again, I exempt Thomas for leaning in to the Kulturkampf. He realized long ago there is no dignity to the court or the pomp and procession, and regularly is lambasted for his wife's naked activism and coordination with regular political pressure. Alito has started to opine a bit in public (leaked) and in the dissents. Frankly, I consider this a duty, and refusal to do so a dereliction of duty, or as you said, cowardice of leaders to refuse to do their duty. Accusations of cowardice requires a knowable, objective expectation of duty and knowing rejection due to fear or personal failing which is why I'm outlining in very clear terms what I expect.

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Originally Posted by TrappedinCalifornia View Post
In this case, our dependence involves something of a 'gamble;' which, by definition, means 'uncertainty.' We've a fair inclination of how Thomas and Alito lean. But, no one here, including their supporters, is completely confident in Gorsuch, Kavanaugh, or Barrett when it comes to 2nd Amendment rulings. Yes. There is considerable HOPE. However, given that Gorsuch and Kavanaugh have been a 'mixed bag' in terms of their decisions overall and Barrett is still, primarily, an 'unknown' as a SCOTUS Justice, I don't believe anyone approaches being 'absolute' in their confidence.

Remember too, it is ill-advised to exclusively equate "Originalism/Textualism" with 'stout, unwavering conservatism.' Why? Because this country has always been premised on liberal (small "l," which is decidedly different than modern Liberalism, capital "L") principles. While small "l" liberal is more closely equated with small "c" conservative, there's a reason for the differentiation and such is not semantics nor insignificant.
Correct, and that is the crux of the issue: originalism was crippled because of the uneasy alliance against British despotism that was fractured by the civil war, and backwoods anarchic Jacksonian contingent was banished in the post-civil war ethos, and the uneasy alliance was rekindled through abandoning Reconstruction, otherwise characterized as benign neglect of the self-determination of these Scots-Irish rather than their preferences being codified into law. The fact that these people and their preferences were not fossilized due to being bad subjects for this particular kind of ossification and preservation in law is being used to deny their primacy and their contributions to originalist thought. It is simply untrue, uncharitable, and attempts to dispossess True Original Americans who forged this nation from their birthright.

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Originally Posted by TrappedinCalifornia View Post
While it is judicious to have something more than a 'single option' and legitimate to question motives/agenda (I share some concerns regarding Gorsuch and his overall philosophy), dismissing them out-of-hand with epithets isn't constructive. Why?
  • There are many 'forms' of Originalism/Textualism; not a single, immutable understanding.
  • We do not know, yet, with any certainty how they intend ruling.
  • No, single ruling is going to encompass the entirety of what we desire (or what we loathe). As I have noted, this is a 'long-game' of incremental steps and, as much as we would prefer it to be otherwise (at least in some respects), cannot come down to a single decision on the part of the Judiciary. It's taken many years to get where we are and there is no, 'magic' reset button which will instantly 'take you back' to a different era; even if Hillary Clinton may think otherwise.
  • As such, each ruling sets a base for subsequent rulings to come. At least, that appears to have been Scalia's plan; a plan which Thomas appeared to support and is attempting to continue momentum for.
And this is all agreed to heartily by me... I just happen to think having a never-satisfied radical faction throwing vegetables at the mandarins of the leaders is frankly how English as well as Early American progress was made, or to quote someone you might be more familiar with-
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FDR was, of course, a consummate political leader. In one situation, a group came to him urging specific actions in support of a cause in which they deeply believed. He replied: "I agree with you, I want to do it, now make me do it." He understood that a President does not rule by fiat and unilateral commands to a nation.
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Originally Posted by TrappedinCalifornia View Post
So, while you are not entirely 'wrong' (despite the 'spin' you've placed on some of the historical events you cite),
Spin? Don't I merit the same description of
Quote:
Originally Posted by TrappedinCalifornia View Post
  • There are many 'forms' of Originalism/Textualism; not a single, immutable understanding.
Quote:
Originally Posted by TrappedinCalifornia View Post
the primary source of your issue seems to be the same 'uncertainty' we all have, coupled with a lack of 'faith' in the System in terms of how it now exists and who the players are. While valid insofar as a personal opinion (and, as I just said, not entirely 'wrong'), it is not necessarily a 'truthful' or even factually accurate indictment of the players and where we stand now; if for no other reason than the very 'uncertainty' which underlies it. Instead, it is an expression of the frustration we all feel, to one degree or another, regarding being where we are now and the 'uncertainty' many of us feel shouldn't exist, but does.
Expression of frustration? It simply is a statement that the opposition has a reliable mechanism to get what they want and I do not. I think it not an expression of frustration that the M16 I am issued has no cleaning kit in a SE Asian humid jungle, but a valid critique that the opposition is issued arms that have a manual of arms suited to fighting and winning whereas I'm being told by Whiz-kids who ran Ford Motor company I can get by with beautiful space age weapons that have fatal flaws due to intellectual elites having no idea about the nitty-gritty importance of things like clean-burning powder and cleaning kits because they haven't fought in the trenches but think they can train McNamara's Misfits to increase their IQ before getting shot by Charlie.

And all that whining, complaining, etc. lead to many, many studies that backed up the criticisms and condemned smartboy programs like Project 100,000 and the botched procurement for M16 ammunition and lead to far better programs and a far more effective fighting force.
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Old 05-02-2021, 12:47 PM
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Originally Posted by TrappedinCalifornia View Post
What you appear to be engaged in is an 'exercise' which ignores some things; as speedrracer suggests, 'cherry picks' others; and weaves them into an 'argument' which sounds reasonable, but is vulnerable to... logic.
Well, let's see if that's truly the case, shall we?


Quote:
Yet, all versions contain the first, primary definition; i.e., "broken." You 'emphasize' one definition over the other, whereas I have bluntly stated that...
I "emphasize" one definition over the other because it is more applicable in the context of its use, namely that the right shall not be "infringed".


Quote:
Also mooting the idea of a 'contract.'
I don't moot the idea that the 2nd Amendment, or the Constitution, is a "contract". But I do moot the notion that the only, or even primary, meaning of "infringed" is with respect to the contract.

The founders were not generally known for being redundant or putting unnecessary wording into the Constitution. And remember, too, Marbury v Madison's admonition that no reading of any part of the Constitution is allowable if it renders the text in question without effect. That clearly includes wording that is read to be completely redundant in the presence of other wording.


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The Bill of Rights was an addendum to what we both agree was an existing contract; i.e., the Constitution. At the time of the Founding, the Constitution was an 'evolving' document and was not considered 'fully ratified' until 1790; with the Bill of Rights being ratified in 1791. The Preamble to the Bill of Rights states the purpose of the 'addendum;' i.e., not 'everyone' was satisfied that the Constitution was sufficient unto itself or was fully 'protective' of individual or state rights...
Yes, that much is true. But it is not that the Constitution is a contract or supreme law that was in dispute or viewed as insufficient, it is that they believed the existing wording of the Constitution was insufficient to protect the most important rights from a government with the supremacy conveyed by that same Constitution.


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Thus, logically and procedurally, it makes sense that 'reinforcement' would be intrinsic; i.e., "the Supremacy Clause" is still a matter of debate in terms of what does/doesn't fall within its domain; i.e., it generally establishes the Constitution and federal law as supreme. Application to specifics is what is still open to 'challenge.' Put another way, States can pass State-specific laws and the Federal Government cannot preempt them before taking effect; preemption generally requiring a challenge in the Courts to resolve the 'conflict' or perceived 'conflict.'
But that's not the result of uncertainty surrounding the supremacy clause, but rather whether the federal government's preemption attempt falls within the powers explicitly assigned to the federal government by the Constitution. Put another way, nobody disputes that the Constitution, or the laws passed under it, are supreme when those laws are proper expressions of the powers conferred by the Constitution to the federal government.

But even if you're correct here, and the 2nd Amendment somehow bolsters the Constitution's contractual nature, it still says that the right shall not be "infringed". To argue, then, that it is the law or contract that shall not be "infringed" is to argue that the right itself is a law or contract. That is a characterization that I would obviously dispute. And, it seems, so do you, because:

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Yes. The RIGHT exists independent of Government...
The right exists independent of government, and independent of law or contract as well.

To be clear, I don't believe you're arguing here that the right itself is a law or contract. I just wanted to make it clear that the object of the term "infringed" in the 2nd Amendment is not a law or contract.


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You then create a straw man to bolster your argument...
Well, let's see, shall we?


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I didn't say it 'solely' meant. I said they have to be understood in conjunction with one another; i.e., that hinder would have been understood as a 'subset' of broken, not the other way 'round or, as you argue, that 'hinder' would supersede the primary/original definition. Your premise is that the 2nd Amendment is about 'the right' and, 'tangentially,' about the exercising of the right...
Well, if that's your argument then we're not really arguing, just saying the same thing in a different way.

But let me put it this way so as to make things as clear as I can: one can restrict exercise of the right without breaking it. But one cannot break the right without restricting exercise of it. Therefore, if one prohibits restrictions on the exercise of the right, one therefore winds up prohibiting breakage as a consequence.

This means that it is sufficient to interpret "shall not infringe" as prohibiting restriction in the context of the 2nd Amendment, because prohibition of restrictions winds up prohibiting breakage as a consequence.


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Codification of the right was recognition of the right, a statement of "what is." What you appear to be wrestling with is that the 2nd Amendment is not, grammatically, 'perfect' in terms of what it recognizes and what it protects.
I can't say whether or not the 2nd Amendment is "grammatically perfect". But if one interprets "infringe" to mean "restrict" then it is most certainly sufficient, provided one has a reasonable understanding of the founders' understanding of the scope of the right.


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Which is what I have said. The difference is where we place our emphasis. That emphasis is premised on two differing perspectives. Mine is that the 2nd Amendment recognizes the right and protects exercise of the right. Your's is that the 2nd Amendment protects the right and that exercise of the right is synonymous with the right. Thus, when you say...
I would say that it protects the right by way of protecting exercise of it. A right that cannot be exercised is no right at all.


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Your argument makes sense... IF... we accept your premise. As has been noted, exercise of the right has ALWAYS had 'limitations.'
And this is what I disagree on. It is not exercise of the right that has always had limitations, it is exercise of keep and bear that has. This is a subtle but monumentally important distinction.

Here, let me put it this way: the right in question is about "keep and bear" of arms. The scope of the right encompasses a subset of "keep and bear". Restrictions on exercises of "keep and bear" which fall outside of that scope are not prohibited by the 2nd Amendment. Restrictions on exercises of "keep and bear" which fall inside of that scope are prohibited. The 2nd Amendment says this plainly: the right shall not be infringed.

Again, it is not exercise of the right that has always had "limitations", it is exercise of keep and bear that has. This is a subtle but monumentally important distinction.


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Such is not in dispute. The degree of acceptable limitation is what is open to question. Were we to accept your premise, then one could sensibly and reasonably argue that the Founders actively engaged in "destroying the right" via the 2nd Amendment and by the practices which were in place at the time.
One could make that argument only if one were to also argue that the practices in place at the time imposed upon actions which those same founders believed to fall within the scope of the right.


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As I have said, it does include 'hinder.' I also agree that it is approximately synonymous to 'restrict.'
And I would argue that this is sufficient to cover, as a practical matter, the other meanings.


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However, the contract (the 2nd Amendment) was, as has been established, not created with the idea of 'absolutely no restrictions.'
It wasn't created with the idea of "absolutely no restrictions" on keep and bear. It was created with the idea of "absolutely no restrictions" on the right with the scope they understood it to have.


Quote:
Thus, at issue, is what limitations (restrictions) were permissible within the context of what the Founders understood them to be and how should those limitations be applied in the modern context.
That's the general issue. But how you think about that matters enormously. Again, it is the right, with the scope it was understood to have at the founding, that shall not be infringed. The meaning of the words is plain, and vitally important.


Quote:
Logically, that is a propositional fallacy. "If A, Then B." It presumes that any form of hindrance in the exercise of the right will result in complete hindrance (destruction) of the right itself.
Again, that is not the meaning or argument I was trying to convey. Hopefully my explanation above has taken care of this. But to reiterate: one can restrict exercise of the right without destroying it. But one cannot destroy the right without restricting exercise of it. Therefore, if one prohibits restrictions on the right, one therefore winds up prohibiting destruction as a consequence.

This renders the use of the "break/destroy" definition of "infringe" redundant in the 2nd Amendment context if "infringe" also carries the "restrict" meaning.


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In many respects, we are arguing to a similar end...
I would say so, yes.


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The difference is that, by definition, you are correct, in theory, that any hindrance of the right is within the scope of the right. Thus, no restriction is, technically, 'outside' the scope of the right.
Not quite. The right has a scope. The right is to "keep and bear arms". The scope of the right as understood by the founders is a subset of the various things that one can do to "keep and bear arms". That which falls within that subset is off limits to restriction, period. That which falls outside that subset might still be off limits to restriction, but not for reasons of infringement of the right.


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But, that's not what the 'contract' is about. The contract speaks to how much 'compromise of the right' is acceptable/expected vis a vis the individual's exercise of the right within the context of society and at what point that compromise, in effect, 'destroys' the right itself.
No, it doesn't. The contract doesn't say anything about compromise of the right. If anything, it says that there is no compromise with respect to the right. The wording in the contract is plain: the right shall not be infringed.

Now, you can attempt to argue that the words do not carry their plain meaning, particularly as understood by the founders, and may courts do. But my argument is that any such argument is invalid on its face, because the Constitution is a written work that carries meaning, and the proper meaning of any written work is that which its authors intended. This is why, when we are uncertain as to the meaning of something that was written, we ask the author(s) if we can. Because it is their intended meaning that matters, not what we think that meaning should be.
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Old 05-02-2021, 1:58 PM
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Poor KcBrown, I come from people that wrote the Constitution you're defending so much, but because of the "conservatism" of people you're debating with they're never gonna agree to get rid of rewrites they call "addendums" to the contract we think was pretty good, so far better to argue from first principles or "f*ck off yankee and leave me alone or I'll bury you out back and have the pigs eat your bones".

These people are fundamentally incapable of even dealing with moderate criticism of these complete rewrites of the constitution that swallow the original constitution, like Christopher Caldwell's declaration the Civil Rights Act is a new, superseding Constitution: https://www.americanthinker.com/arti...rrectness.html

Unless someone can credibly argue their libertarianism, conservatism, right wing-ism, socialism, Monarchism can actually rewrite or fundamentally alter this new controlling constitution that swallows virtually the 1st and 4th and you could make arguments for the 5th amendment and 8th amendment, then you're pissing into the wind.

These are the people who if Catholic would argue that Protestantism needs to compensate the Catholic church for compensation with interest of Church properties before Protestantism can even be hope to be considered legitimate.

The first principles of the Founders were winning a war against Despots who wished to oppress them, politically cleansing the country of recalcitrant loyalists, and then figuring out through a process of failure and trial of a governing structure to preserve this arrangement. Given that there is no buy-in of originalism by the other side and total war for what they want to accomplish, I humbly propose the founders didn't adhere to the Takings clause of the constitution for restitution to Princeton college or the Tea merchant who had an involuntary party on his ship, and this is the true Originalist position when faced with an opponent who has no regard for Law except that of Dictatorism- that which they dictate is law.

At the very least Kc, you're gonna need to form an alliance with those who are less interested in arguing Talmudic interpretations to get what they want at your expense or scholarly tracts about nothing and people more concerned with getting what they want and being left to live how they please that is similar to your own.
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Old 05-02-2021, 2:27 PM
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That's not what Heller said. That is an interpretation of Heller which is at odds with what Scalia specifically warned in Heller.
Really?

It is true that Scalia argued that the right is not limited to its stated militia purpose. But Scalia doesn't end it there. No, Heller says this, directly:

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783 at 2817
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 limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
(bolded emphasis mine)

If mere expansion of the right beyond the militia purpose were the issue, then a restriction on battlefield weapons would not even be mentioned. It makes no sense to say that expansion of the right past the militia purpose would enable restrictions of battlefield weapons, because expansion of a right does not ever enable restrictions upon that right that were previously disallowed. But it makes perfect sense to note that restrictions on battlefield weapons result in a poor fit between the right and the stated purpose if the intention is to exclude the militia purpose from the scope of the right.

That last sentence is plain: the Court will interpret the right in the same way regardless of how poorly the effect of the resulting interpretation fits with the originally understood militia purpose. But to insist on that is to insist that the right is independent of its stated purpose. Were this not the case, then that last sentence would be a non-sequitur, since one cannot announce that the interpretation of the right is unaffected by the fit between that interpretation and the stated purpose for that right if the stated purpose of that right adds to the scope of, and thus the proper interpretation of, that right.


And the paragraph above calls out the M-16 as an example of a battlefield weapon on which a ban would survive if the only objection to that ban is the militia purpose, thanks to the Court's purpose-independent interpretation of the right. The M-16 is likely the most widely used battlefield weapon in use today. If prohibitions on even that cannot be defended against on the basis of militia purpose, then no battlefield weapons can.

So yes, it really is detachment from the militia purpose. The above is crystal clear on that. If the degree of fit is allowed to be arbitrarily small then that is detachment. And here, the Court explicitly says that it doesn't matter how poor the fit is between its interpretation of the right and the stated militia purpose -- it will interpret the right the same way regardless. That is detachment from purpose, period.


Now, the reason that battlefield weaponry here is important is that we know that the original understanding of the right included battlefield weaponry, because that's what was provided by and used by the private citizens to fight the Revolutionary War and, furthermore, we know that the militia purpose includes battlefield weaponry because the founders had a deep distrust of standing armies and, furthermore, expected the militia to participate in fending off military invasion, which would place the militia square onto the battlefield.

So to insist, as the Court here does, that the originally understood militia purpose is not sufficient to overcome restrictions on battlefield arms really is for it to insist that the right is strongly, if not completely, disconnected from the 2nd Amendment's stated purpose for it. After all, it claims in essence that "the now-limited fit between the prefatory clause and the protected right cannot change our interpretation of the right", which means that, according to the Court, the scope of the right does not expand to fulfill its stated purposes!!

But as I've argued, the scope of the right is defined by, at a minimum, its originally understood purposes. That means that if something is necessary to meet a purpose of the right, then that something cannot be prohibited. Which means that the scope of the right does expand to fulfill its purposes, most especially its explicitly stated one.

So: the Court here doesn't merely state that the purpose of the right includes more than that which the 2nd Amendment states, it goes so far as to explicitly claim that its interpretation of the right is independent of the 2nd Amendment's stated purpose for it and, furthermore, that said independence can result in legitimate restrictions on the right that would not survive if the stated purpose of the right were sufficient to disallow such restrictions. A poor fit between its interpretation and the stated purpose would not be allowed by its interpretation of the right if that last were not true.


But, again, that flies directly in the face of what I've said: the originally understood purposes of the right define the minimum scope of the right. Which is another way of saying that if a restriction imposes upon one of the originally understood purposes of the right, that restriction is disallowed by the 2nd Amendment because that purpose defines a scope that is part of the total scope of the right. And the 2nd Amendment is plain: no restriction on anything which falls within the originally understood scope of the right is allowed, period.

Because the scope of the right is defined at a minimum by the purposes for the right, the fit between that part of the right that derives from the right's purposes and those purposes MUST always be as perfect as humanly possible. For the Court to insist, then, that it's allowed to interpret the right so as to result in a poor-to-nonexistent fit between the right and its stated purpose is for it to directly contradict the intention of the founders and the entire reason that rights exist in the first place.

It may be that the militia cannot meet its stated purpose in practice due to "modern developments", but the government is not allowed to cause that failure through restrictions placed upon its ability to keep and bear arms! The 2nd Amendment plainly disallows such restrictions, and that's that.
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Old 05-02-2021, 3:34 PM
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Really?

It is true that Scalia argued that the right is not limited to its stated militia purpose. But Scalia doesn't end it there. No, Heller says this, directly:



(bolded emphasis mine)

That last sentence is plain: the Court will interpret the right in the same way regardless of how poorly the effect of the resulting interpretation fits with the originally understood militia purpose. But to insist on that is to insist that the right is independent of its stated purpose. Were this not the case, then that last sentence would be a non-sequitur, since one cannot announce that the interpretation of the right is unaffected by the fit between that interpretation and the stated purpose for that right if the stated purpose of that right adds to the scope of, and thus the proper interpretation of, that right.


And the paragraph above calls out the M-16 as an example of a battlefield weapon that could survive a ban if the only objection to that ban is the militia purpose, thanks to the Court's purpose-independent interpretation of the right. The M-16 is likely the most widely used battlefield weapon in use today. If prohibitions on even that cannot be defended against on the basis of militia purpose, then no battlefield weapons can.

So yes, it really is detachment from the militia purpose. The above is crystal clear on that. If the degree of fit is allowed to be arbitrarily small then that is detachment. And here, the Court explicitly says that it doesn't matter how poor the fit is between its interpretation of the right and the stated militia purpose -- it will interpret the right the same way regardless. That is detachment from purpose, period.


Now, the reason that battlefield weaponry here is important is that we know that the original understanding of the right included battlefield weaponry, because that's what was provided by and used by the private citizens to fight the Revolutionary War and, furthermore, we know that the militia purpose includes battlefield weaponry because the founders had a deep distrust of standing armies and, furthermore, expected the militia to participate in fending off military invasion, which would place the militia square onto the battlefield.

So to insist, as the Court here does, that the originally understood militia purpose is not sufficient to overcome restrictions on battlefield arms really is for it to insist that the right is strongly, if not completely, disconnected from the 2nd Amendment's stated purpose for it. After all, it claims in essence that "the now-limited fit between the prefatory clause and the protected right cannot change our interpretation of the right", which means that, according to the Court, the scope of the right does not expand to fulfill its stated purposes!!

But as I've argued, the scope of the right is defined by, at a minimum, its originally understood purposes. That means that if something is necessary to meet a purpose of the right, then that something cannot be prohibited. Which means that the scope of the right does expand to fulfill its purposes, most especially its explicitly stated one.

So: the Court here doesn't merely state that the purpose of the right includes more than that which the 2nd Amendment states, it goes so far as to explicitly claim that its interpretation of the right is independent of the 2nd Amendment's stated purpose for it and, furthermore, that said independence can result in legitimate restrictions on the right that would not survive if the stated purpose of the right were sufficient to disallow such restrictions. A poor fit between its interpretation and the stated purpose would not be allowed by its interpretation of the right if that last were not true.


But, again, that flies directly in the face of what I've said: the originally understood purposes of the right define the minimum scope of the right. Which is another way of saying that if a restriction imposes upon one of the originally understood purposes of the right, that restriction is disallowed by the 2nd Amendment because that purpose defines a scope that is part of the total scope of the right. And the 2nd Amendment is plain: no restriction on anything which falls within the originally understood scope of the right is allowed, period.

Because the scope of the right is defined at a minimum by the purposes for the right, the fit between the right and its purposes MUST always be as perfect as humanly possible. For the Court to insist, then, that it's allowed to interpret the right so as to result in a poor-to-nonexistent fit between the right and its stated purpose is for it to directly contradict the intention of the founders and the entire reason that rights exist in the first place.
That's because YOU like so many other people explicitly ignore that Scalia pointed out that there are TWO militias.

One preexisting - The Militia that comes from the preexisting The People.

That preexisting militia has the exact same commonly held arms suitable for self-defense for the purpose of confrontation as The People it comes from.

Ones created - Those militias created by States and by Congress under Article I, Sec. 8, Cls 12-13. They can be funded to whatever extent State legislatures and Congress desire and likewise armed to whatever extent they desire. They are created as a subset from the preexisting Militia of the People.

It is in THAT context that Scalia's discussion about the M-16 makes sense.

Simple everyday able bodied males (The Militia - preexisting) going about their normal business on an average day ARE NOT going to have, keep or bear the same arms that (created) militias such as the National Guard or State created and organized standing militias are going to have - weapons of war such as machine guns, rockets, mortars, cannons, portable nukes, cannisters of poisonous gas, rpgs, hand grenades, etc.

Scalia had no desire to redefine the right for technological changes - just like we don't redefine the right because of public opinion.

If an arm is suitable for self-defense for the purpose of confrontation - not unusually dangerous, concealable or INDISCRIMINATE - then it is likely protected for the The People (preexisting) and its Militia (preexisting).

If an arm is unusually dangerous, indiscriminate by design or nature, concealable - then it is likely NOT protected - and thus mostly likely to be found to belong to the domain of the Military and militias created under Article I, Sec. 8, Cls 12-13.

=8-(

This was exactly the determination that was made for stun guns in Caetano v. Massachusetts 2016. The stun gun Jamie Caetano had was a single target - discriminate - non-overpenetrating, individually controllable arm suitable for self-defense for the purpose of confrontation presenting little or no danger to innocent bystanders.. And Jamie Caetano used it exactly as that - for the purpose of self-defense - nothing more.

There was no need to re-interpret the 2nd Amendment for the stun gun Jamie Caetano possessed - its design intent and actual use already made it stand out as an as arm protected by the 2nd Amendment.

SCOTUS noted the obvious, and then proceeded to tear into Boston and the State of Massachusetts - politely calling them out for the *******s they were - tyrants using their power to destroy a vulnerable person - instead of using their power to assist.

=8-|
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Old 05-02-2021, 3:59 PM
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That's because YOU like so many other people explicitly ignore that Scalia pointed out that there are TWO militias.

One preexisting - The Militia that comes from the preexisting The People.

That preexisting militia has the exact same commonly held arms suitable for self-defense for the purpose of confrontation as The People it comes from.

Ones created - Those militias created by States and by Congress under Article I, Sec. 8, Cls 12-13. They can be funded to whatever extent State legislatures and Congress desire and likewise armed to whatever extent they desire. They are created as a subset from the preexisting Militia of the People.

It is in THAT context that Scalia's discussion about the M-16 makes sense.
No, it doesn't. The reason it doesn't is that the militia purpose is stated in the very instrument that protects the right to arms. If the militia purpose of the security of a free state were something that the founders understood to be satisfied through the created militias, then:
  1. The prefatory clause would not be present in the 2nd Amendment in the first place, because one does not need to protect the right of the people to keep and bear arms for militia duty when the people are going to be supplied arms by the very government that would otherwise restrict them, and
  2. If the purpose was to protect the right of the states to arm their militias then the 2nd Amendment would have called out the right of the states and not, or perhaps in addition to, the right of the people.

It is the very wording of the 2nd Amendment that makes it plain that the founders intended the people to be able to keep those arms that are necessary for them to perform their militia duty, as it was originally understood, independently of what the governments might furnish them on top of that.

And like I said, it was privately owned arms supplied by the citizenry that were instrumental in the Revolutionary War. Those arms included battlefield weaponry. Muskets back then were the M-16 of today, but the citizens provided privately owned arms all the way up to artillery and gunships. They were battlefield arms. So to argue, as you do here, that battlefield arms are not protected is to argue against the very thing that the founders understood viscerally through their direct experience in war.

Not to mention that maintaining the security of a free state includes keeping the very government that you refer to in check, through force of arms if absolutely necessary, and quite possibly against that very government's own standing army. That, too, requires battlefield arms, and the founders understood that because they had rebelled against what amounts to their own government, coming up against standing armies of that government with their own private battlefield arms. To insist that the founders believed that the government they were founding was incapable of becoming tyrannical is to insist that they were dullards, because anyone with any sense at all can see that if the government they were rebelling against had become tyrannical, nothing guarantees that the government they themselves would form after wouldn't ever do the same -- and since the stated purpose of the 2nd Amendment is the militia's duty to maintain the security of a free state, with the protection of arms as the stated means of doing that, it is quite obvious and logical that the founders intended the citizenry to retain the means to engage even their own government on the battlefield if it should prove necessary.

The purpose of the right defines the minimum scope of the right. The purpose here is the security of a free state, against enemies both foreign and domestic, and against enemies of all shapes and sizes. That requires battlefield arms, which means those very arms are protected by the 2nd Amendment as understood by the founders, and that's that.

If the people in our society don't like the consequences of the protection of arms by the 2nd Amendment as originally understood, then there is a ready-made way to change that: Constitutional amendment. If modern battlefield weaponry is regarded by modern society as being truly too potent to be protected from restriction then getting such an amendment passed should be a piece of cake. But that is the only proper way to accomplish it. The courts are not authorized to change the meaning of the Constitution to suit their own modern tastes, no matter how much social pressure there might be to do so, and that's that. Until such time as such an amendment takes place, the only legitimate decision on the part of the courts is to strike any such prohibitions, period. Proper interpretation of the Constitution demands nothing less. Anything less is paying mere lip service to "originalism". Either fully adhere to the Constitution as its authors intended it to mean, or accept that you adhere to the "living constitution" approach. There is no in between.
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Old 05-03-2021, 12:31 AM
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The 2nd Amendment applies to:

1. The People (preexisting - commonly held arms suitable for self-defense)
2. The Militia (preexisting - ALL able bodied men, exact same arms as The People they come from)
3. The Polity (Created by preexisting The People, protected by their preexisting Militia).

Article I, Sec. 8, Cls 12-13 covers State created and Congress created militias drawn as a subset - a select group - from The Militia - trained and regulated to make into a more effective fighting force.

Starts on p.22, DC v. Heller.

Scalia made the distinction.

There's a point to it.

=8-(
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Old 05-03-2021, 1:44 AM
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Quote:
Originally Posted by mrrabbit View Post
The 2nd Amendment applies to:



1. The People (preexisting - commonly held arms suitable for self-defense)
Not just arms suitable for self defense. All arms suitable for any and all militia purposes, plus those suitable for any other purposes of the right to arms, plus any additional arms that the founders understood to be protected.


Quote:

2. The Militia (preexisting - ALL able bodied men, exact same arms as The People they come from)

3. The Polity (Created by preexisting The People, protected by their preexisting Militia).



Article I, Sec. 8, Cls 12-13 covers State created and Congress created militias drawn as a subset - a select group - from The Militia - trained and regulated to make into a more effective fighting force.



Starts on p.22, DC v. Heller.



Scalia made the distinction.



There's a point to it.


Yes, there is a point to it. But limiting the arms that the citizenry can possess by right is not part of it.



The purpose of empowering Congress to create subset militias and to arm and train them is precisely in order to ensure that the resulting militias will have the necessary capabilities. The right to keep and bear arms ensures that the citizenry can possess the equipment and training it needs to perform its militia duties. It doesn't guarantee that the citizenry will possess that equipment and training. That is the purpose of the Congressional power, and again, limiting the arms that the citizenry can possess by right is not within that purpose, nor can it be -- for such limits are forbidden by the 2nd Amendment, which because it is an amendment overrides all else in the Constitution that precedes it that might otherwise conflict with it.
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Old 05-03-2021, 2:55 AM
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Originally Posted by kcbrown View Post
Really?
Yes. Really.

All this brings us back to the same place we started in this thread where...

Quote:
Originally Posted by speedrrracer View Post
That's a poorly cherry-picked explanation devoid of anything resembling logic.

"The context of the use of the definition"? Sorry, but that's gibberish, devoid of any etymological or legal utility.

And even if we did fall to the 2nd definition, you very strangely skip over the first entry "to destroy" and choose "to hinder"? Since when is a secondary entry preferred over a primary entry? That's very odd behavior coming from you; I certainly would have expected the opposite...
Quote:
Originally Posted by TrappedinCalifornia
...Except that the Constitution, including the Bill of Rights, is precisely that... a contract. It is why such can be... amended and/or "altered and abolished" as it is the basis of our form of Government. Bear in mind that the Constitution and the Bill of Rights do not convey any rights; they/it simply espouses, references (directly and indirectly), and protects such rights. Otherwise, based on 'contractual' logic, a right can be 'amended, altered, and abolished.' Such is contrary to the very essence of "natural rights."

However, the exercise of those rights is what the 'social contract' that is the Constitution was specifically about. That is why the Bill of Rights is, specifically, understood to be and was intended to be limitations on Government action in the context of breaking the social contract with regard to pre-existing, natural rights. Thus, the 2nd Amendment isn't strictly about "the right" so much as it is about the codification of the right and what is 'permissible' insofar as Government restriction(s) on the exercise of that right...

The question would be whether it carried both meanings at the time of the Founding and, even if it did, which meaning was intended to be conveyed by the Founders?...

It's about the 2nd Amendment (and the Constitution as a whole) being a 'contract' which offers certain protections regarding the exercise of a right. Thus, violation of (infringement on) the contract is not, by definition, a destruction of a right. It is violation (a 'breaking of') the contract; i.e., the protections afforded to the exercise of the right. As a result, the 'destruction' is of the contract, not the right when it comes to infringement...

In a sense, what you are practicing is legerdemain in a (seeming?) effort to equate restrictions on the exercise of the right with 'destruction' of the right. Clearly, that was not the Founder's intent or understanding as they, themselves, recognized and as Scalia argued in Heller...

A discussion over the extent to which 'limitations' on the exercise of the right becomes a violation (or 'destruction') of the right itself was something that Scalia openly acknowledged was "to be determined," in and after Heller...

It was something he contended post-Heller, actively inviting cases so as to allow the Court to further clarify both the expansiveness of the "right" and what was permissible insofar as "limitations;" i.e., where the boundary lines are between permissible limitations and destruction/obviation of the right...
You then accused me of failing to understand your argument. On the contrary, I understand it. The problem is, as I stated...

Quote:
Originally Posted by TrappedinCalifornia
...You then create a straw man to bolster your argument...

I didn't say it 'solely' meant. I said they have to be understood in conjunction with one another; i.e., that hinder would have been understood as a 'subset' of broken, not the other way 'round or, as you argue, that 'hinder' would supersede the primary/original definition. Your premise is that the 2nd Amendment is about 'the right' and, 'tangentially,' about the exercising of the right...

According to both of us, the right exists regardless of 'contract' or 'Government.' Thus, how can Constitution/Amendment do anything except RECOGNIZE the right as existing?

It can't. That is why the 2nd Amendment speaks to the "why" of codification...

...The difference is where we place our emphasis. That emphasis is premised on two differing perspectives. Mine is that the 2nd Amendment recognizes the right and protects exercise of the right. Your's is that the 2nd Amendment protects the right and that exercise of the right is synonymous with the right...

Your argument makes sense... IF... we accept your premise. As has been noted, exercise of the right has ALWAYS had 'limitations.' Such is not in dispute. The degree of acceptable limitation is what is open to question. Were we to accept your premise, then one could sensibly and reasonably argue that the Founders actively engaged in "destroying the right" via the 2nd Amendment and by the practices which were in place at the time...

Put another way, what degree of 'hindrance' to the exercising of the right to keep and bear arms was considered 'acceptable' without infringing upon the right to a point where the right itself is compromised and what is the modern equivalency?

Quote:
Originally Posted by kcbrown
My argument is not that hindrance and destruction are the same. It is that if hindrance is disallowed, so too must destruction as a natural consequence. This is logically so because destruction of a right is the most complete form of hindrance of it.
Logically, that is a propositional fallacy. "If A, Then B." It presumes that any form of hindrance in the exercise of the right will result in complete hindrance (destruction) of the right itself. As I have noted, a 'restriction' on the exercise of a right within the context of society is not, by definition, a violation of the right, no matter how, individually, we may perceive it as such...

The difference is that, by definition, you are correct, in theory, that any hindrance of the right is within the scope of the right. Thus, no restriction is, technically, 'outside' the scope of the right. But, that's not what the 'contract' is about. The contract speaks to how much 'compromise of the right' is acceptable/expected vis a vis the individual's exercise of the right within the context of society and at what point that compromise, in effect, 'destroys' the right itself...
So...

You have presented "cherry-picked" information (something I've referred to as acontextual parsing); emphasize a secondary definition as the primary one (make the primary definition a subset of the secondary rather than the other way 'round); offer dismissal turned acceptance turned dismissal of the Constitution as a 'contract;' legerdemain to claim the 2nd Amendment does what it, by definition, cannot do; accusations that the audience (me) fails to understand your argument as a substitute for recognition of the "why" behind not 'accepting' your argument; creation of a straw man (more than once); a propositional fallacy; and frankly, a misrepresentation of what was said in Heller.

Misrepresentation? Yes. I tried to offer you a more 'complete' version of the discussion and you are, instead, fixated on a portion as being the 'summation' of the overall discourse...

Quote:
Originally Posted by kcbrown
It is true that Scalia argued that the right is not limited to its stated militia purpose. But Scalia doesn't end it there...
Discussion related to the M-16 is a point in the discourse, not the entirety of the argument being made. Yet, you expand on that as if it were the entirety of the decision and the sole basis upon which it was made...

Quote:
Originally Posted by kcbrown
If mere expansion of the right beyond the militia purpose were the issue, then a restriction on battlefield weapons would not even be mentioned. It makes no sense to say that expansion of the right past the militia purpose...
It makes no sense because your premise is flawed. Scalia was not expanding the right. He was, in fact, arguing against a reduction of the right to solely a 'militia purpose.' Once again, you are succumbing to what Scalia specifically warned the dissent was unacceptable; confusing/conflating "a" or "the" reasoning behind codification for what was codified. In a sense, you are arguing the same (or a very similar) straw man Scalia showed the dissent was utilizing.

Quote:
Originally Posted by kcbrown
So yes, it really is detachment from the militia purpose.
Yes. It was. But, 'detachment,' not 'exclusion.' What the dissent was arguing was that militia service was the SOLE and ONLY ACCEPTABLE rationale for keeping/bearing arms. What Scalia was demonstrating was the militia service was simply ONE of myriad reasons for the right to keep and bear arms. Simply because many of the Founders viewed militia service as "a" or "the" primary motivation for codification of the 2nd Amendment didn't make it the ONLY motivation; it simply made it the one "all" could agree to as 'sufficient' unto itself vis a vis the codification. Once again, as previously posted, from Heller...

Quote:
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...

Other than that erroneous point, JUSTICE STEVENS has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia... 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...
Note the portion I emphasized. What was codified were the liberties, not necessarily the right itself. Written differently, it could have said...
The reason we present this codification is primarily, though not exclusively, due to concern regarding potential elimination of the militia in favor of a standing army. Given a consensus that a militia is necessary to the protection of a Free State, we recognize the fundamental right of the People to keep and bear arms as a critical factor in the regulation (i.e., training and preparedness) of a militia. Therefore, any infringement of the liberties associated with the People's right to keep and bear arms, beyond those limitations already commonly understood, shall not be permitted insofar as such limitations would conflict with the right itself to the point of obviating the right.
While such loquacity may be indicative of modern 'legalese,' it neither fit the style of the time nor was it felt necessary as, at the time, there was 'common understanding' as to what it meant. But, as I indicated earlier, that's part of the problem. As you acknowledge...

Quote:
Originally Posted by kcbrown
The 2nd Amendment says that the right shall not be infringed. That means what it says. But it requires that one understands what the right covers, i.e. the scope of the right. And the scope is that which the authors of the 2nd Amendment understood it to be.
Yet, every one of us continues to impart an 'unique' interpretation of what was understood or, more accurately, we tend to infuse what we wish it to be into a claim of what was understood. Unfortunately, what subsequent generations view as 'desirable' does not always comport with Original Intent; which is why amending the Constitution was made, comparatively, difficult. Such holds true for all sides of the controversy and there is no getting away from it. Again, it's why Scalia said "very carefully," beginning with what was known to be 'understood' by the Founders. (Simply because there are those who would 'short cut' the process and would portray 'their truth' over 'facts' to more readily jibe with their 'desires of the moment,' does not negate or change what was understood.)

cont'd...

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Old 05-03-2021, 2:55 AM
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But, to continue... You create yet another straw man, misrepresenting what was specifically stated in Heller...

Quote:
Originally Posted by kcbrown
...After all, it claims in essence that "the now-limited fit between the prefatory clause and the protected right cannot change our interpretation of the right", which means that, according to the Court, the scope of the right does not expand to fulfill its stated purposes!!
As previously posted from Heller...

Quote:
...But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause...

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied 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...
Scalia then expanded...

Quote:
...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...

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...
Note the portion I emphasized. The purpose of codification, not what was codified. Such comports, precisely with...

Quote:
Originally Posted by kcbrown
But as I've argued, the scope of the right is defined by, at a minimum, its originally understood purposes. That means that if something is necessary to meet a purpose of the right, then that something cannot be prohibited. Which means that the scope of the right does expand to fulfill its purposes, most especially its explicitly stated one.
Once again, the reason for codification (the prefatory clause) was not solely or exclusively the 'scope of the right' itself; i.e., the stated purpose was not what the Founders understood to be the ONLY purpose of the right. Thus, the right doesn't expand to meet the purposes perceived in that the purposes perceived were myriad. Remember, the 'scope of the right' is, in theory, infinite. The exercise of the right, however, is limited and forever has been/will be. What Heller is establishing is that the 'scope of the right' cannot be reduced to the one, stated purpose behind codification of the 2nd Amendment.

Which means yet another misrepresentation...

Quote:
Originally Posted by kcbrown
So: the Court here doesn't merely state that the purpose of the right includes more than that which the 2nd Amendment states, it goes so far as to explicitly claim that its interpretation of the right is independent of the 2nd Amendment's stated purpose...
The Court said that it is not solely reliant upon the stated reason for codification in determining what limitations 'infringe' upon the right. Service in the militia is simply ONE of the purposes, acknowledging it as, likely, the consensus as to the primary purpose for codification (not the primary purpose inherent to the right itself) at the time of ratification.

Quote:
Originally Posted by kcbrown
And the 2nd Amendment is plain: no restriction on anything which falls within the originally understood scope of the right is allowed, period.
Which is what Scalia argued in Heller and continued to argue publicly. It was precisely what he said in response to Chris Wallace in relation to how 'modern circumstances' should be interpreted vis a vis the right to keep and bear arms and Scalia's response was "very carefully," beginning with original intent/understanding.

In fact, much of your argument is demanding that Heller must say what Heller said...

Quote:
Originally Posted by kcbrown
the fit between that part of the right that derives from the right's purposes and those purposes MUST always be as perfect as humanly possible...
Heller...

Quote:
It fits perfectly, once one knows the history that the founding generation knew and that we have described above.
Quote:
Originally Posted by kcbrown
It may be that the militia cannot meet its stated purpose in practice due to "modern developments", but the government is not allowed to cause that failure through restrictions placed upon its ability to keep and bear arms! The 2nd Amendment plainly disallows such restrictions, and that's that.
Heller...

Quote:
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 limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Again, you are looking for 'perfection in the language' and, lacking that perfection (which is unattainable) your preference is for 'structural changes' via a Constitutional Convention; i.e., a subset of what you admit in Post #361 of this thread...

Quote:
Originally Posted by kcbrown
...Surprises the hell out of me that they did, though, given their, er, "performance", with respect to the election lawsuits.

Quote:
On a serious note, this all but proves that courts are political even if it's only because the activist side is pulling to the left in a political way. We really need activists that pull to the right to counter the leftists...
Exactly. Which is precisely what @lowimpactuser has been arguing for some time. It has taken me a while to swing around to that point of view, but given the events that have happened over time, I'm now firmly in that camp as well. We have the morons on the other side to thank for that. They could have played things rationally and people like myself would have remained firmly in the "do things the right way no matter what" camp. But no, they had to go off the deep end, and now people like myself are "radicalized" in that we now believe that the only workable approach is to do whatever it takes to win, and to do things the right way only when doing so does not adversely affect the prospects of winning.
I suppose that's the reason myself and, apparently, others have expected something different than what you now proffer.

In a nutshell, many of us are still working with what we actually have and attempting to 'make it better' in the vein Scalia intended with Heller. That doesn't mean or even imply 'contentment' with what we have. Neither does it mean or imply 'satisfaction' with how the process has been skewed, sending us down a path, in many ways, directly contrary to what was originally intended. But, it is what we have to work with; whatever its potential flaws. (We have discussed that before as well; i.e., that there are inevitable 'flaws' in Heller due to the necessity of 'compromise' Scalia was confronted with in getting the "Heller Five" on board.)

You (as well as others) are prepared to no longer work 'within the System' we inherited and have 'radicalized' to the point of seeking a new and different System. While that is your right, bear in mind that such would represent a "Fundamental Change" akin to what the Left is proffering; i.e., perhaps different in intent/direction/destination, but fundamental change nonetheless, even if you envision it as 'returning things' to they way you feel was 'intended.' In a sense, it's similar to the arguments for/against moving out of California; where some wish to 'abandon' what exists in search of an alternative, while others seek to 'fight,' with the hope of, someday, rectifying the situation.

Thus, it comes down to a matter of 'faith' in what was originally intended to be and our ability, as a nation, to bring ourselves back on course toward that ideal.

Speaking of which, I believe we've now hijacked this thread on a specific case SCOTUS just granted cert to by turning it into one more akin to your two-year old thread... On open carry, concealed carry, and Heller. I still have 'faith' (though, admittedly, the depth of that faith diminishes year-to-year), others do not. A relatively recent post from that thread...

Quote:
Originally Posted by lowimpactuser View Post
Any questions for people who still believe this is about legal policies rather than morality, good vs. evil, who whom?

Or is there still some "my magical legal argument will make tyrants suddenly see the light" apologists who want to chime in how this really is just a setback and if it had been argued X way or submitted Y brief the courts would be FORCED to respect gun rights?
While I enjoy our 'conversations,' I think we need to allow this thread to return its focus to NYSRPA v. Corlett and allow the more generic 'carry and Heller' to proceed on the other thread if we can't simply 'agree to disagree.'

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Old 05-03-2021, 10:15 AM
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Originally Posted by TrappedinCalifornia View Post
I suppose that's the reason myself and, apparently, others have expected something different than what you now proffer.

In a nutshell, many of us are still working with what we actually have and attempting to 'make it better' in the vein Scalia intended with Heller. That doesn't mean or even imply 'contentment' with what we have. Neither does it mean or imply 'satisfaction' with how the process has been skewed, sending us down a path, in many ways, directly contrary to what was originally intended. But, it is what we have to work with; whatever its potential flaws. (We have discussed that before as well; i.e., that there are inevitable 'flaws' in Heller due to the necessity of 'compromise' Scalia was confronted with in getting the "Heller Five" on board.)
That's just the thing though: If you admit Heller was a compromise, and at least possibly not fully true to originalism but originalism with critical weakening and failure points engineered in why the hell should we regard it as sacrosanct? One political side simply disliked Plessy v. Ferguson and decided instead of "working within the system" decided to destroy it completely and utterly, with much faulty logic and supposition. Why do we lack the moral case where we can prove Heller is fatally flawed because of political considerations yet we can't lobby and demand a "wrongly decided and political hackery the day it was written"? Do you really think the other side cares about legal provenance rather than sheer political consequences? Do you really think most normal apolitical people know or even care sufficiently to do anything about living constitutionalism vs. originalism? I demand that we throw off self-imposed fetters and demand people on our side tell me what benefit we have from such a ball and chain no one is giving us a handicap for.

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Originally Posted by TrappedinCalifornia View Post
You (as well as others) are prepared to no longer work 'within the System' we inherited and have 'radicalized' to the point of seeking a new and different System. While that is your right, bear in mind that such would represent a "Fundamental Change" akin to what the Left is proffering; i.e., perhaps different in intent/direction/destination, but fundamental change nonetheless, even if you envision it as 'returning things' to they way you feel was 'intended.' In a sense, it's similar to the arguments for/against moving out of California; where some wish to 'abandon' what exists in search of an alternative, while others seek to 'fight,' with the hope of, someday, rectifying the situation.
And what mechanism of power do those in California have of changing things? If the law means nothing to the other side but a thin veneer of justification that can be thrown over whatever they want, instead of the driving force behind everything, the law is simply too weak to force the other side to back down. I care not for law if it condemns 10 innocent men to jail and one guilty man to go free, and I cheer for anarchy if it frees or keeps free 10 innocent men and sends one guilty man to jail. Law itself is a means to an end, that being order and rule of law. If rule of law can exist without a legal system for a long period of time, then logically the legal system is simply vestigial. This is utopianism akin to classical Marxism, where the Socialist superstate eventually gives way to self-governing local communes. Great in theory, horrific in practice. When I hear a great theory but terrible practice I tend to say that is a flawed system that should be torn down or replaced. Maybe I'm a radical for deciding government systems should be judged off real world performance rather than theory. So be it.

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Originally Posted by TrappedinCalifornia View Post
Thus, it comes down to a matter of 'faith' in what was originally intended to be and our ability, as a nation, to bring ourselves back on course toward that ideal.

Speaking of which, I believe we've now hijacked this thread on a specific case SCOTUS just granted cert to by turning it into one more akin to your two-year old thread... On open carry, concealed carry, and Heller. I still have 'faith' (though, admittedly, the depth of that faith diminishes year-to-year), others do not. A relatively recent post from that thread...



While I enjoy our 'conversations,' I think we need to allow this thread to return its focus to NYSRPA v. Corlett and allow the more generic 'carry and Heller' to proceed on the other thread if we can't simply 'agree to disagree.'
Great. NYSRPA v. Corlett depends entirely on the political winds at the time, e.g. if there are mass casualty shootings and riots over the entire block of riot programming they have planned, from Kyle Rittenhouse to the Ahmaud Arbery case to the Taser-taser-bang cop to probably mass casualty shootings in "retaliation" for things and the FBI proudly uncovering many, many right wing extremist plots that they luckily had highly competent informants plan, argue for, cajole, bully, arm, transport to, and otherwise help make possible where it wouldn't exist. We have roughly a year and 1/3rd for some very tight script-writing to influence the weathervane-based court. I expect suspense, drama, and raising stakes and careful narrative balancing that would put game of thrones to shame.

As for Heller, my above belief on it still has many ripe fruits waiting to be plucked.

Heller either was authentic originalism so originalism has fatal flaws like it not questioning long-standing prohibitions because justice delayed is how justice has always been and courts have no ability to alter previous judgements except if it's for other people and against the interests of white original founding Americans. Got it. If that's what originalism is, then I'd personally send it on a trip through the streets of Monrovia with gold chains locked to the wrist and neck and an announcement of the gold-laden originalism fettered by golden handcuffs.

Or Heller was authentic originalism that had strategic failure points agreed to so that it would change very little in terms of unjust laws, and so is a Trisomy abortion that had no real viability except from heroic life-saving measures applied to keep this terrible chimera with no viability or chance of a good quality of life alive at major expense to parents, hospital, society, doctors, nurses, etc. And Heller should be honored with removal of these expensive life-support measures, and when Heller inevitably succumbs to the fatal flaws engineered to its poor body, we honor Heller with a grave and remembrances every year, and recall that one time Heller almost did something, and recalled in happiness and fondness rather than in vain hopes of it amounting to something in this world and the inevitable disappointment that is not Heller's fault, but the fault of the parents who expected a star athlete out of a sickly, engineered-to-fail body that instead we should have comforted, cuddled, and waited for the inevitable.

Or Heller was not originalism at all, but a changeling that fooled everyone for 10+ years and when people denounced it as not real originalism, Originalist fanboys shouted down the doubters and quieted them. Thus Originalism can't even be properly recognized by its own fans, and thus has no real constituency and so is useless.

Preferably, we get to work making a new child to take the place Heller holds in our dreams of the future (NEVER taking the place it held in our hearts as our first-born), except this one won't need to be on life support and never open it's eyes after the first steps of McDonald before collapsing into a coma it never woke up from. Heller had the same promise everyone sees in a strong 2 year old, but when it lapses into a coma and doesn't achieve the things that Brown does, nor Roe, nor Shelley, nor Title 9, it's time to admit that having missed all the benchmarks other stronger children have this one is unlikely to meet any further benchmarks. Thus, if we want a strong child, a strong champion, then simply we need to make a new one instead of expecting one with brittle bone disease to fulfill our dreams of a football champion in the family.

But please, explain to me why fighting for Heller makes more sense than a stronger, newer, more recent ruling that can either implement something other than originalism which failed, or implement authentic originalism which Heller failed to do.
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Old 05-03-2021, 12:36 PM
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Originally Posted by TrappedinCalifornia View Post
You then accused me of failing to understand your argument. On the contrary, I understand it.
If you truly understand it, then why did you say this:

Quote:
I didn't say it 'solely' meant. I said they have to be understood in conjunction with one another; i.e., that hinder would have been understood as a 'subset' of broken, not the other way 'round or, as you argue, that 'hinder' would supersede the primary/original definition.
The above indicates that you do not understand my argument, because the above means that in the 2nd Amendment context, you need both the "restrict" definition and the "eviscerate" definition, at a minimum.

But my claim isn't that the "hinder" definition supersedes the others, my claim is that it is a necessary and sufficient definition for 2nd Amendment purposes. If you use "hinder", you don't need the others. And this is so precisely because if you have the "restrict" definition, its use in the 2nd Amendment also gets you the effects that the "eviscerate" definition does. So while the term's meaning may include both things, you only need the "restrict" portion of it. And if you dispute this, then please, tell us exactly how one could possibly eviscerate the right without restricting it, because that's what it would mean to need both.

This is exactly consistent with what you've said: that "hinder" is a subset of "broken". But remember that the use of the term in the 2nd Amendment is in the context of negation: shall not be infringed. Which means that the set of things that are to not be restricted is a superset of the set of things that are to not be broken. This is why it is "hinder", and not "broken", which is necessary and sufficient in the context of the 2nd Amendment.

And I argued, via reductio ad absurdum, that you need the "restrict" portion of the definition. You cannot do without that.

But remember what @speedrrracer said that I was responding to:

Quote:
Quote:
To infringe is to restrict. Shall not be infringed means shall not be restricted.
Except that's not what it means, and most importantly, not what it meant when it was adopted
His claim is that the definition at the time of adoption doesn't include "restrict". It is that claim that I was originally responding to. But you yourself acknowledge that it does include "restrict".

Well, if it includes "restrict", then exactly what are we arguing about here?


You also go on to reiterate:

Quote:
Your premise is that the 2nd Amendment is about 'the right' and, 'tangentially,' about the exercising of the right...
after I explicitly said:

Quote:
I would say that it protects the right by way of protecting exercise of it. A right that cannot be exercised is no right at all.

It is true that I've been using protection of exercise of the right interchangeably with protection of the right itself. But I know of no way to protect the right except through protection of exercise of it. This is something that I expected would be understood at the outset, which is why I've been comfortable interchanging these two things from the start. That said, the 2nd Amendment says that the right shall not be infringed, so if there exists some way of infringing upon the right without infringing upon its exercise, then that is also forbidden by the 2nd Amendment.


Quote:
Discussion related to the M-16 is a point in the discourse, not the entirety of the argument being made. Yet, you expand on that as if it were the entirety of the decision and the sole basis upon which it was made...
Discussion related to the M-16 is a point in the discourse, but it is a point that indicates conflict between what the Court claims and what the 2nd Amendment itself says combined with what the founders clearly understood it to mean.

The Heller dissent was attempting to argue that the right is limited to the militia purpose. The majority argued that the right is not limited to the militia purpose, but in doing so it also argued that the militia purpose has no effect on the right. And we know this precisely because the majority claims that the "fit" between the right and the militia purpose is allowed to be arbitrarily small, and uses the most popular battlefield weapon in use by the United States today as an example of a weapon that would not be protected by the militia purpose based on the Court's interpretation of the right when the founders' understanding of the right clearly includes protection of battlefield weaponry precisely because of the militia purpose!

Either the scope of the right is that which the founders originally understood it to be, which means it includes the scope that arises from the militia purpose, is thus not independent of the militia purpose, and thus includes battlefield weaponry most especially like the M-16, or the proper interpretation of the right is somehow "independent" of the militia purpose, in which case the scope is not that which the founders understood it to be. Which is it?


Quote:
Once again, you are succumbing to what Scalia specifically warned the dissent was unacceptable; confusing/conflating "a" or "the" reasoning behind codification for what was codified.
It is not the reasoning behind codification that I am using here, it is a reason for the right to exist in the first place that I'm using. The prefatory clause states one of those reasons. It doesn't just state the reason the right is codified, it states a reason that the right exists, and its presence in the 2nd Amendment proves that the founders understood that purpose of the right to be present. And this is why you cannot dispense with the militia purpose when determining what falls within the scope of the right. Nor can you dispense with any other originally understood purpose of the right.

And yet, dispensing with that militia purpose when determining the scope of the right is exactly what the Court says it does, for it says that its interpretation of the right is independent of the militia purpose.


Quote:
Yet, every one of us continues to impart an 'unique' interpretation of what was understood or, more accurately, we tend to infuse what we wish it to be into a claim of what was understood.
Well, we are all only human, after all. I do my best to remove my own personal biases from the equation, but I'm sure I'm not perfect in doing so.
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Old 05-03-2021, 7:40 PM
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That's just the thing though: If you admit Heller was a compromise, and at least possibly not fully true to originalism but originalism with critical weakening and failure points engineered in why the hell should we regard it as sacrosanct?
"Sacrosanct" probably isn't the appropriate term given that I said it was the first step and something to be improved upon rather than left inviolate; i.e., specifically what appeared to be Scalia's plan.

What's your alternative? Throwing out both Heller and McDonald, the latter being based primarily upon Heller, because the former doesn't meet your idea of 'perfection?' So... You would give up the foundational precedent of "individual right" and begin again... where?

Quote:
Originally Posted by lowimpactuser
Why do we lack the moral case where we can prove Heller is fatally flawed because of political considerations yet we can't lobby and demand a "wrongly decided and political hackery the day it was written"?
Show me where I maintain that it is 'fatally flawed.' I said that it has inevitable flaws due to the necessary compromise Scalia confronted. Specifically, we now know that Kennedy was responsible for Scalia being forced to equivocate via existing restrictions ("longstanding tradition of...") and acknowledgment that the 2nd Amendment is not 'unlimited,' both assertions being true and, in fact, being the basis of over two centuries of debate regarding the limitations on exercise of the fundamental right. The fact that the Left has chosen to reduce Heller to, essentially, those two or three sentences does not make the case 'fatally flawed' and, in fact, as we've noted, is something that Thomas (with Scalia signing on) has referred to as a 'crabbed reading.' Put another way, the Left's deliberate misinterpretation/misrepresentation of Heller doesn't, by default, make the case 'fatally flawed.'

What I reference as 'flaws' are what Scalia was referring to in Heller and beyond as, to paraphrase, continued need for definition or definition refinement. Scalia knew and we have to accept that 2nd Amendment advocates weren't going to get it "ALL" in a single bite. What he knew was that the FIRST STEP involved getting SCOTUS to acknowledge an "individual right;" thus, forestalling the Left getting the Court to declare it a "collective right," the latter being a distinct possibility given the 5-4 split on the Court and the difficulties involved in achieving even that.

Once Scalia got that, then he got incorporation, forcing the States to recognize it as an individual right. Ultimately, that is the 'success' of Heller and there is no other SCOTUS precedent which can be cited which specifically declares such. Yet, your argument is that it should be undermined, abandoned, and replaced because it doesn't give us everything in a single case; i.e., what you define as 'fatally flawed?'

Quote:
Originally Posted by lowimpactuser
Do you really think the other side cares about legal provenance rather than sheer political consequences?
Even Roe v. Wade didn't give abortionists everything in a single case. It created precedent upon which subsequent decisions (and legislation) were made. Unlike Heller, however, Roe v. Wade does have 'fatal flaws.' Yet, the Left defends it (politically and legally) for the same reason; i.e., throw it out and they lose the precedent, thus impacting all subsequent decisions/legislation. It's one of the very reasons that SCOTUS is so hesitant in re-examining and/or overturning precedent. In fact, just today...

Over Thomas dissent, high court rejects West Point case

Quote:
...Thomas said in a dissent that the high court should have taken the case to reconsider a 70-year-old precedent that prevents members of the military from suing the United States when they are injured while doing their duties.

It is the second time in as many years he has noted his disagreement when the court has declined to revisit the issue. Thomas says the case the court decided decades ago has led to bizarre and surprising results, including barring the former cadet's case...
As noted in the article, Thomas said in the dissent...

Quote:
...Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell. There is precedent for that approach...
Similarly, what Thomas and others have argued with regard to Heller is a need to "rein in" the misapplication/misrepresentation of the intent, not overturn the precedent of an individual right. How does the Court do that? By clarifying the intent, which is precisely what Scalia was doing; i.e., inviting more cases by which the scope of the right and the permissible limitations could be delineated. Thus, once again, giving 'voice' to the idea that the issues surrounding the 2nd Amendment were not going to be resolved in a single case.

Similarly, NYSRPA v. Corlett is not going to 'cure all ills' when it comes to 'bearing arms' or what we refer to as 'carry.' If you look back, the predictions (expressed hopes) are, for the most part, consistent with what we got from Heller, that carry outside the home is permitted. Subsequent to that, the issue will become refinement/clarification via additional cases which allow for addressing specifics. The inherent Achilles' Heel of such an approach is what Scalia, Thomas, we, et al. have been frustrated by... the refusal of SCOTUS to grant cert to additional cases.

This is why some were 'shocked,' others were surprised and hopeful, while still others are 'concerned' over SCOTUS granting cert to NYSRPA v. Corlett. No one knows, with certainty, what the decision will involve. Broad vs. narrow, clarification vs. new precedent, expansive vs. reductionist... The list of possibilities goes on.

Quote:
Originally Posted by lowimpactuser
I demand that we throw off self-imposed fetters and demand people on our side tell me what benefit we have from such a ball and chain no one is giving us a handicap for.
It's not "self-imposed" so much as being the System we have to work with at this time. What you or I... DEMAND... or, more accurately, what we would prefer (in some instances), is irrelevant. As I indicated in response to you previously, frustrations we all feel, to one degree or another, regarding being where we are now and the 'uncertainty' many of us feel shouldn't exist, but does, won't suffice as a 'permission slip' to simply ignore the System as it currently functions. Neither does such angst appear sufficient to compel a clearly defined 'majority' to 'change the System' in a Constitutionally stipulated process. Thus, we are left with the "mechanism(s)" we have within the System as it exists.

Quote:
Originally Posted by lowimpactuser
Great. NYSRPA v. Corlett depends entirely on the political winds at the time...
Hysteria, polemics, and speculative assertions based on personal perceptions aside, as I just noted, NO ONE knows where this case is going insofar as what the decision will entail. Well, I guess it could be said that the Justices who granted cert have an idea of where they feel it should go; but, that 'thinking' has not been made public. Thus, running around "with our hair on fire" isn't particularly informative or productive.

Quote:
Originally Posted by lowimpactuser
As for Heller, my above belief on it still has many ripe fruits waiting to be plucked.

Heller either was authentic originalism so originalism has fatal flaws...
As we've discussed before, it is hazardous and inaccurate to equate interpretations of a specific judicial philosophy with the ultimate outcome of a given case. Such is particularly the circumstance when you have 9 Justices, each at a different point on the spectrum of judicial philosophy, contributing to the outcome of a case which is focused on a 'narrow' question rather than the entirety of a philosophical issue.

Are there 'limits' to any and all judicial philosophies? Absolutely. But, once again, that's why even Scalia noted BEGINNING with 'original intent.' Heller was not 'pure' Originalism, nor was it ever likely or ever intended to be. But, as Gorsuch noted, the approach of Originalism is preferable to that of a Living Constitutionalist. Why? Because the latter live "in the moment," with a preference for an 'elitist understanding' rather a more colloquial one and, as a result, there is no consistency (or very little). In fact, that is what has spawned the 'crabbed reading of Heller," where lower court judges wish to retain the ability to rule as they see fit rather than be 'hampered' by a standard. For precisely the same reason, it's why many scream for a definitive standard of scrutiny; i.e., a demand for unalterable and utterly predictable consistency. (Though, as I have warned over time, many would soon discover a sense of 'unease' with that, depending upon the case/issue.)

All of which is why SCOTUS tends to be consistent in its hesitance to overturn their own precedent. Instead, what many will claim/accept is 'overturning' precedent is actually more along the lines of 'refining' or 'clarification' where the 'flaws' are addressed, but the primary ruling remains relatively consistent. It's just like the threads we've had related to Qualified Immunity. Several Justices have expressed overt interest in 'clarifying' Qualified Immunity from the "always completely immune" misapplication it has become to a more nuanced approached to what is often a necessary protection. The 'struggle' is in how to achieve that.

It's just like the Thomas dissent I just cited with regard to West Point...

Quote:
At a minimum, we should take up this case to clarify the scope of the immunity we have created. Without any statutory text to serve as a guide, lower courts are understandably confused about what counts as an injury “incident” to military service.
Lacking an ability or willingness to create such clarification, then maybe the Court needs to start over entirely so as to create more clearly refined parameters. Put another way, let's stay with the main idea, but if we can't use subsequent cases to refine/clarify that idea, then maybe we need to go back and re-present the main idea in a more nuanced way. Unfortunately, what he is up against is the obvious and, thus, part of the basis of the 'hesitancy'... If he can't get them to refine/clarify an existing precedent, how is he going to get them to create 'new' precedent which has the desired nuance?

Quote:
Originally Posted by lowimpactuser
Preferably, we get to work making a new child to take the place Heller holds in our dreams of the future (NEVER taking the place it held in our hearts as our first-born), except this one won't need to be on life support and never open it's eyes after the first steps of McDonald before collapsing into a coma it never woke up from...
Which is the point I just made. Heller didn't 'lapse' into a coma. It was never allowed to 'grow.' This is the frustration Scalia, Thomas, Alito, and even Kavanaugh have expressed in one form or another, to one degree or another. It was, in essence, 'abandoned' to survive on its own at too 'young' a stage of development.

It's precisely what people HOPED that NYSRPA vs. New York would herald, a beginning of the necessary process of refinement/clarification. Disappointed by the mooting of that case, it's what many HOPE that NYSRPA v. Corlett will represent. But, it's also why many, including myself, caution not to invest "too much hope" for a broad, all-encompassing, ruling.

Quote:
Originally Posted by lowimpactuser
But please, explain to me why fighting for Heller makes more sense than a stronger, newer, more recent ruling...
Keeping with your analogy of a "2-year old" as the "needed vehicle," that 2-year old has only taken its first steps. It isn't, yet, in a position to 'walk,' let alone 'run.' We now have an "Individual Right" which is incorporated to the States. Now, we need clarification from SCOTUS that the right allows for the liberty of exercising the right outside the home. That's the next step.

After that, it becomes a matter of the "2-year old" putting the STEPS together in a WALKING form that imparts consistency and keeps balance. Once that is achieved, the next stage is in mastering a RUNNING form that is not only consistent, but allows for increasing stamina.

If all of the above doesn't 'make the case' and you still desire a more 'radical' solution, then it's up to you to make YOUR case, not based on hyperbolic rants about Originalism or what "they" do or how "they" act, but based on a reasoned, achievable process which is not vulnerable to the same types of things which has brought us to where we currently are with the existing System.

Just like with the Newsom Recall. It's one thing to scream that he needs to be 'cast out.' It's another thing to make such an option available. Then it's something else again to have a viable alternative ready to be 'immediately' put in place rather than simply leaving a void to be filled by... you hope... a 'better' alternative... before it is filled by... something else that you might feel is 'worse,' but someone else feels is 'better.'

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Old 05-03-2021, 9:21 PM
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Originally Posted by TrappedinCalifornia View Post
Keeping with your analogy of a "2-year old" as the "needed vehicle," that 2-year old has only taken its first steps. It isn't, yet, in a position to 'walk,' let along 'run.' We now have an "Individual Right" which is incorporated to the States. Now, we need clarification from SCOTUS that the right allows for the liberty of exercising the right outside the home. That's the next step.
Unfortunately, since we get a favorable ruling every 12-14 years (okay two if you count Heller and McDonald seperately, I dont) my grandkids, in 50 years will be able to carry a 6 shot revolver concealed in their front yard if they have a permit and maybe go to the range where their bolt gun is stored to target shoot.

SCOTUS has been derelict in their duty to protect the 2A and for every clarification that we get from them the anti-gun state and local polity will enact unconstitutional laws up to and including those that SCOTUS has already ruled on (see the recent spat of safe storage laws).
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Old 05-03-2021, 9:22 PM
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If you truly understand it, then why did you say...
We're becoming repetitive. As I said, what you are claiming is a lack of understanding isn't that. It's not a lack of understanding, it's about why I don't accept your argument. As we have agreed, in some respects, we're after a similar end. Our emphasis, however, differs and continuing to argue over those emphases is distracting from the topic of this thread. It's just like...

Quote:
Originally Posted by kcbrown
But my claim isn't that the "hinder" definition supersedes the others, my claim is that it is a necessary and sufficient definition for 2nd Amendment purposes...
Thus, 'hinder' supersedes the other definitions, in your mind. Otherwise, it would NOT be sufficient, unto itself, which is what I have argued. Again, it has to do with your premise...

Quote:
Originally Posted by kcbrown
And if you dispute this, then please, tell us exactly how one could possibly eviscerate the right without restricting it, because that's what it would mean to need both.
As I have said, the 2nd Amendment does not address "the right" beyond recognizing the existence of the right. What it specifically addresses is the exercise of the right. That is where the 'hinder' portion of the definition of 'infringe' comes into play.

My emphasis is the emphasis which is placed on ALL the rights listed in the Bill of Rights. Each focuses on exercise of the right. Grammatically, the terms used in relation to the rights recognized in each Amendment are all verbs, not nouns. Verbs, by definition, express an act, occurrence, or mode of being. Conversely, a noun is the subject of the verb; i.e., the subject of the action.

Thus, "to keep and bear" is the act. The act of what? The right to arms. Similarly, "speech" is an act. Act of what? Expression. But, as 'speech' is an utterance, you have "press," which is another act of expression. "Peaceably assemble" is an act of the right of association. "Petition the Government" over what? The right to disagree with actions taken by the Government.

Quote:
Originally Posted by kcbrrown
This is exactly consistent with what you've said: that "hinder" is a subset of "broken". But remember that the use of the term in the 2nd Amendment is in the context of negation: shall not be infringed.
Which is where our emphases diverge; i.e., over what is being negated. You claim it is the right itself. My claim is that it is the exercise of the right, such exercise being a 'social agreement/contract.'

As we agree, the scope of the right is virtually infinite in the context of what it encompasses, at least in theory. That is the basis of the term 'freedom' as it applies to rights. Freedom is the ability to act without constraint or hindrance. It's why the right exists outside the strictures of Government; i.e., God-given means that only God has the ability to apply constraints on the right.

On the other hand, Liberty involves choice. Choice of what? The actions taken based on the freedoms (rights) one has. That is very much within the purview of "Government" in that governments are established to create rules or norms to which members of the community said "Government" encompasses adhere in the interest of being part of that community. Thus, 'hindrance' on the actions taken as a derivative of the rights one has is, by definition, what governments can and do address.

Put another way, Government is a social contract among individuals who agree that some 'hindrance' of their individual rights is permitted and acceptable in the interest of community. That is specifically what the Bill of Rights was addressing; i.e., the 'degree' of hindrance which was viewed as acceptable. That was the very reason for codification of the Bill of Rights as a whole... to prevent misconstruction or abuse of its [Government's] powers, that further declaratory and restrictive clauses should be added." Which is to say that violation of the acceptable degree of hindrance is what is broken; i.e., the social contract is broken in that the contract is violated.

Such is precisely what the Declaration of Independence is addressing when it states...

Quote:
...they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security...
Destructive of what ends? The securing of the rights, not the rights themselves, but the securing of the rights. How are such rights 'secured?' By the degree to which one is allowed to ACT upon those rights. What are the abuses? Unacceptable constraints (hindrance) on the ability to ACT upon those rights.

Thus, what is being 'destroyed' (broken) is not the right itself, but the ability to act upon that right and, thus, the acceptability of the social contract as it was conceived and implemented. As we continuously observe, if guns (arms) are outlawed, only outlaws will have guns (arms). The right and the ability to act upon that right remain regardless of Government or its edicts. The consequences of acting on the right, however, are proscribed by Government; in the case of the U.S., in theory, as represented by what We the People deem 'acceptable limitation.' Thus, what actions and the degree of those actions are what "law" addresses, including the Supreme Law of the Land, the Constitution.

As a result...

Quote:
Originally Posted by kcbrown
Which means that the set of things that are to not be restricted is a superset of the set of things that are to not be broken. This is why it is "hinder", and not "broken", which is necessary and sufficient in the context of the 2nd Amendment.
It is NOT the presence of "hindrance," but the degree of "hindrance" which is at issue. Which is why...

Quote:
Originally Posted by kcbrown
And I argued, via reductio ad absurdum, that you need the "restrict" portion of the definition. You cannot do without that.
...we agree that both aspects are necessary. However, your reductio ad absurdum is a propositional fallacy in that you posit that ANY reduction, by necessity, means 'allowable' reduction to an unacceptable extreme. My argument is that 'agreed upon' or 'commonly understood' reduction is precisely the basis of the 2nd Amendment and the modern furor stems from a growing sense that one side has violated (broken) and is ever-increasingly violating (breaking) what has traditionally been viewed as 'commonly understood' vis a vis the 'social contract.'

While my argument might seemingly allows for 'complete' elimination of the ability to act upon the right as what is 'commonly understood' to be 'allowable limitation,' note that I provided the caveat of what has traditionally been viewed as 'commonly understood;' i.e., the limitations as understood originally and under which the 'social contract' was conceived, ratified, and under which it has been enforced. As I have alluded to, as Scalia and others in the Judiciary have noted, those limitations were, themselves, limited and nothing has changed insofar as the contract, despite how some individuals may feel personally. As I just noted, however, one 'side' is now encroaching upon changes which delineate a fundamental change in what has been 'traditionally understood' and they are doing so outside the process by which the 'social contract' (the Constitution) stipulates such changes need to be made; which is where the break/breaking of the social contract comes in.

Quote:
Originally Posted by kcbrown
Well, if it includes "restrict", then exactly what are we arguing about here?
What we are 'arguing about' is...

Quote:
Originally Posted by kcbrown
It is true that I've been using protection of exercise of the right interchangeably with protection of the right itself. But I know of no way to protect the right except through protection of exercise of it. This is something that I expected would be understood at the outset, which is why I've been comfortable interchanging these two things from the start. That said, the 2nd Amendment says that the right shall not be infringed, so if there exists some way of infringing upon the right without infringing upon its exercise, then that is also forbidden by the 2nd Amendment.
Which, as been documented, repeatedly, was not the case. There were commonly understood 'infringements' (hindrances) on the ability to exercise the right before, during, and after ratification, acknowledged by the Founders themselves. Once again, in theory, you are correct insofar as "the right." What you fail to acknowledge is that the 2nd Amendment recognizes the right and expresses what shall not be 'infringed;' i.e., what was commonly understood to be restrictions (hindrances) on an individual's ability to exercise their right as part of the community. That lack of differentiation colors the remainder of your argument. Just like...

Quote:
Originally Posted by kcbrown
The Heller dissent was attempting to argue that the right is limited to the militia purpose. The majority argued that the right is not limited to the militia purpose, but in doing so it also argued that the militia purpose has no effect on the right.
Because it doesn't. Even were the 2nd Amendment to be entirely eliminated, were enemies, both foreign and domestic, to attempt a takeover, would 'the right' of the People to take up arms and fight still exist? Absolutely. We know this for a fact in that is precisely what the Colonists did prior to the codification of the 2nd Amendment. It's what the Declaration of Independence stipulates. A primary (though not exclusive) reason for the codification, as we have explored, was concern that elimination of the 'organized' militia and replacement by a standing army answerable to the Government, would create an imbalance between the 'power' held by the People and the 'power of Government,' particularly in its immediate applicability.

The rest is, as I have said, becoming repetitive as it is colored by the premises I have, once again, addressed. Just like...

Quote:
Originally Posted by kcbrown
It is not the reasoning behind codification that I am using here, it is a reason for the right to exist in the first place that I'm using.
A natural right is not dependent upon reasons for existing. A natural right simply exists. That is why it exists separate from and regardless of Government. What you are doing is perilously close to declaring it a legal right, which are rights created and granted by Government...

Quote:
Originally Posted by kcbrown
The prefatory clause states one of those reasons. It doesn't just state the reason the right is codified, it states a reason that the right exists, and its presence in the 2nd Amendment proves that the founders understood that purpose of the right to be present. And this is why you cannot dispense with the militia purpose when determining what falls within the scope of the right. Nor can you dispense with any other originally understood purpose of the right.
Once again...

Quote:
Originally Posted by kcbrown
And yet, dispensing with that militia purpose when determining the scope of the right is exactly what the Court says it does, for it says that its interpretation of the right is independent of the militia purpose.
...you misrepresent what was said and it's part of why we have become repetitive. Heller did not "dispense" with the militia portion, nor did it declare the purpose of a militia to be meaningless insofar as utilization of the right. It said that exercise of the right is not solely dependent upon the stated purpose of the militia.

In short, once again, you are conflating "the right" with what was considered (what was commonly understood as) "acceptable exercise" of "the right" within society. Which is why I have been 'challenging' you on the basis of...

Quote:
Originally Posted by kcbrown
Well, we are all only human, after all. I do my best to remove my own personal biases from the equation, but I'm sure I'm not perfect in doing so.
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Old 05-03-2021, 9:48 PM
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...SCOTUS has been derelict in their duty to protect the 2A and for every clarification that we get from them the anti-gun state and local polity will enact unconstitutional laws up to and including those that SCOTUS has already ruled on (see the recent spat of safe storage laws).
So... What options do we have to address such dereliction?

Soap box? Ballot box? Jury box?

Simply because we have not had the desired level of success doesn't mean the System is broken or that such 'dereliction' is immutable. It doesn't even mean that such laws are, by definition, "unconstitutional" or "unacceptable" to the larger community. It means the methods being used to implement them are "extra-constitutional" and, thereby, "unconstitutional" if a sufficient number of We the People reject them as inappropriately implemented and enforced.

Does that necessitate getting a sufficient block of We the People to recognize and agree? Well, if you are reliant upon the Soap box and, by derivative, the ballot box, then... "Yes." The issue then becomes what qualifies as "necessarily sufficient."

As has been well-established, that's why most of us voted for Trump; i.e., the opportunity to impact the Jury box or, more specifically, the Judiciary? Isn't that what we're seeing now in the 9th, a potential movement of the pendulum in terms of how the 9th rules and the exercise of power the Left has been able to exert with the 9th? Isn't that what we are hopeful of with regard to the new members of SCOTUS; a change in the overall approach which favors more traditional understandings and is less 'activist' in the context of 'inappropriate' implementation and enforcement?

I understand the frustration and empathize/sympathize with it. Such doesn't change the fact, however, that our options remain the same as always. Don't like the options available under the current System? There's always the 'final option;' i.e., changing the System. Of course, changing the System isn't, by necessity, solely dependent upon the Cartridge box. In fact, look at how the System has been 'altered' by the Left without a 'shot being fired' in the context of how we generally contextualize the Cartridge box. (While violence involving firearms has been used, the scale involved is more along the lines of creating a 'rationale' when it comes to utilization of the Soap/Ballot/Jury boxes.)

Simply because the Left has used the other three options BETTER (more effectively) than 'our side' has in recent decades, doesn't mean such options are no longer available to us. It means that we are going to have to become better and more efficient at utilizing them. Short of that, all you may find left is the Cartridge box and, I submit that box is, pragmatically, the most difficult to employ in an effective manner to generate the desired ends. There are reasons that it is the 'final option' or, phrased differently, the 'option of last resort.' Even more specific to your point, that box does not assure anyone that a 'resolution' would be in the offing any more quickly, judiciously, or effectively than what the other options provide for.
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Old 05-03-2021, 10:14 PM
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What happened here?
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Old 05-03-2021, 10:22 PM
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What happened here?
If by that, you mean that the thread appears to have been 'hijacked' and has moved too far away from NYSRPA vs. Corlett to be simple 'topic drift,' then I agree and noted so above...

Quote:
Originally Posted by TrappedinCalifornia
...While I enjoy our 'conversations,' I think we need to allow this thread to return its focus to NYSRPA v. Corlett and allow the more generic 'carry and Heller' to proceed on the other thread if we can't simply 'agree to disagree.'
If you meant something else, then you're probably going to have to be more specific.
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Old 05-03-2021, 10:43 PM
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What's your alternative? Throwing out both Heller and McDonald, the latter being based primarily upon Heller, because the former doesn't meet your idea of 'perfection?' So... You would give up the foundational precedent of "individual right" and begin again... where?
Look to where Brown V. Board does for deciding "separate but unequal is inherently unequal" for their proof, or for the logic in Roe v. Wade. Both decisions have far more respect and impact today then the actual federal 2nd amendment.

Yes, throw it out, and say shall not be infringed means shall not be infringed and it was wrong the day it was decided. Every gun law goes under a rubric to be decided like businesses have to get government pats on the head to ensure they're not violating protected classes.


Quote:
Originally Posted by TrappedinCalifornia View Post
The fact that the Left has chose to reduce Heller to, essentially, those two or three sentences does not make the case 'fatally flawed' and, in fact, as we've noted, is something that Thomas (with Scalia signing on) has referred to as a 'crabbed reading.' Put another way, the Left's deliberate misinterpretation/misrepresentation of Heller doesn't, by default, make the case 'fatally flawed.'
The decision is fatally flawed because if originalism is so good, pure, and all we need to succeed and win, then the fact it was adulterated makes it impure and thus falls down. The mental gymnastics you must go through to maintain originalism is a worthwhile doctrine despite conserving nothing and never being able to given true voice is amazing.

Originalism could argue for itself if there were pure cases of Thomas writing about spanking and it fundamentally changing jurisprudence in a narrow but influential way.

Originalism could argue for itself if there were impure cases of Scalia writing about guns and while impure it fundamentally changing jurisprudence in a broad and powerful way.

Originalism neither gains pragmatism that works from being watered down nor defends itself purely and looks like a government in waiting. It looks like a sad excuse to refuse to forcefully advocate and deliver for their constituency.

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Originally Posted by TrappedinCalifornia View Post
What I reference as 'flaws' are what Scalia was referring to in Heller and beyond as, to paraphrase, continued definition or definition refinement. [...] Yet, your argument is that it should be undermined, abandoned, and replaced because it doesn't give us everything in a single case; i.e., what you describe as 'fatally flawed?'
No, instead of talking like a hedge fund philosopher I'm talking like a debt collector. I don't care what loans may be paid back under what generous rates of return at an indeterminate point in the future. I care about what we have now as hard assets, hard proof of the validity of the position. Law is not about platonic ideals that can never be effected. Law is about justice, and if ten guilty men go free to save one innocent man, not about the disposition of innocence. This intellectual masturbation is all meant to conceal the absolute failure of the system and to attempt to use jargon to claim the emperor is clothed you rube, just wait a little longer and you'll see finery that will make you ashamed of ever doubting it. Heller moved gun rights forward a tiny bit in D.C. Heller opened the door for McDonald. McDonald opened the door for Illinois to basically go shall-issue. It's not nothing... but it's no Brown v. Board or Roe, yet I'm being asked to defend it as if it's even greater than either.

Quote:
Originally Posted by TrappedinCalifornia View Post
Unlike Heller, however, Roe v. Wade does have 'fatal flaws.' Yet, the Left defends it (politically and legally) for the same reason; i.e., throw it out and they lose the precedent, thus impacting all subsequent decisions. It's one of the very reasons that SCOTUS is so hesitant in re-examining and/or overturning precedent.
Bullshi7. Speak plainly. They are "hesitant" to revisit something for progressive causes that isn't just right. They will though. They will never revisit a ruling that would reward the heartland at the expense of the coastal areas. Period. And this is more salient than "hesitancy", this is "rare for X, never for Y", and that is far more important and telling than a mere "rare"...
Quote:
Originally Posted by TrappedinCalifornia View Post
Similarly, what Thomas and others have argued with regard to Heller is a need to "rein in" the misapplication/misrepresentation of the intent, not overturn the precedent of an individual right. How does the Court do that? By clarifying the intent, which is precisely what Scalia was doing; i.e., inviting more cases by which the scope of the right and the permissible limitations could be delineated. Thus, once again, giving 'voice' to the idea that the issues surrounding the 2nd Amendment were not going to be resolved in a single case.
And we did that. What exactly happened? Denial after denial. The courts refused to protect it aggressively like they did with the 14th amendment, with Brown, with Civil rights act, and all the other "rights" for the other side. The very disparity in treatment is not a footnote, it's the entirety. I care less for the US constitution in Liberia than for the unwritten constitution in England at the same time. Outcomes are what matter, not words, not papers, not ideas. NYSRPA looks very likely to begin to prove me wrong... but it still doesn't prove me wrong that the rights were abandoned for 10 years and that in fact this is a completely different disposition and thus trusting in this mechanism to treat our side the same way before the law as the other side is simply wrong, so it is simply natural for me to look for other venues that won't treat me so badly.

Quote:
Originally Posted by TrappedinCalifornia View Post
The inherent Achilles' Heel of such an approach is what Scalia, Thomas, we, et al. have been frustrated by, the refusal of SCOTUS to grant cert to additional cases.

This is why some were 'shocked,' others were surprised and hopeful, while still others are 'concerned' over SCOTUS granting cert to NYSRPA v. Corlett. No one knows, with certainty, what the decision will involve. Broad vs. narrow, clarification vs. new precedent, expansive vs. reductionist... The list of possibilities goes on.
And the reason for concern is we have no datapoints to go off of, like we do with SCOTUS taking a case on Brown, the Civil rights act, and other expansions or clarifications of rights. Roe has some guesswork but given how shaky the jurisprudence is and even the likely impact of it compared to repeal of Brown or the Civil rights act, it still doesn't compare.

Hysteria, polemics, and speculative assertions based on personal perceptions aside, [...] isn't particular informative or productive. [/quote]
Tell that to the rioters outside the Chauvin trial or the LA riots and the OJ decision.

Quote:
Originally Posted by TrappedinCalifornia View Post
As we've discussed before, it is hazardous and inaccurate to equate interpretations of a specific judicial philosophy with the ultimate outcome. Such is particularly the case when you have 9 Justices, each at a different point on the spectrum of judicial philosophy, contributing to the outcome of a case which is focused on a 'narrow' question rather than the entirety of a philosophical issue.
Is it though? Living constitutionalism and the hand-selection process for the left has not delivered them a Warren or Roberts yet.

Quote:
Originally Posted by TrappedinCalifornia View Post
But, as Gorsuch noted, the approach of Originalism is preferable to that of a Living Constitutionalist. Why? Because the latter live "in the moment" and, as a result, there is no consistency (or very little). In fact, that is what has spawned the 'crabbed reading of Heller," where lower court judges wish to retain the ability to rule as they see fit rather than be 'hampered' by a standard. For precisely the same reason, it's why many scream for a definitive standard of scrutiny; i.e., a demand for unalterable and utterly predictable consistency.
And even scrutiny itself is a court-invented doctrine which is why howls for scrutiny is continuing to encourage would-be John Marshalls and why I refuse to do so. Judges should be personally snubbed, made fun of, and otherwise made into community pariahs as a rule for their conduct in courtrooms and for their standing aside from justice.

Quote:
Originally Posted by TrappedinCalifornia View Post
All of which is why SCOTUS tends to be consistent in its hesitance to overturn their own precedent.
Bull$hi7 again. Their "hesitance" ONLY APPLIES TO PROGRESSIVE POLICIES. IT IS BLANKET DENIAL FOR NON-PROGRESSIVE DOCTRINES.

Quote:
Originally Posted by TrappedinCalifornia View Post
Lacking an ability or willingness to create such clarification, then maybe the Court needs to start over entirely so as to create more clearly refined parameters. Put another way, let's stay with the main idea, but if we can't use subsequent cases to refine/clarify that idea, then maybe we need to go back and re-present the main idea in a more nuanced way. Unfortunately, what he is up against is the problem of... If he can't get them to refine/clarify an existing precedent, how is he going to get them to create 'new' precedent which has the desired nuance?
Simple. Give qualified immunity to any citizen who removes a person who leads to restriction on the right to bear arms. This is never going to happen because all your words are an attempt to dress up a lack of will as a lack of ability.

Quote:
Originally Posted by TrappedinCalifornia View Post
It's precisely what people HOPED that NYSRPA vs. New York would herald, a beginning of the necessary process of refinement/clarification. Disappointed by the mooting of that case, it's what many HOPE that NYSRPA v. Corlett will represent. But, it's also why many, including myself, caution not to invest "too much hope" for a broad, all-encompassing, ruling.
See, that is why I'm saying a new child, not bringing Heller back. The most likely explanation is that it was abandoned due to political cowardice rather than faults in Heller itself. I personally don't care and don't wish to take a chance on something that already failed. I prefer a different vehicle that hasn't been tried simply because the failure of Heller means there is no benefit to Heller over a new founding myth of gun rights.

Quote:
Originally Posted by TrappedinCalifornia View Post
Keeping with your analogy of a "2-year old" as the "needed vehicle," that 2-year old has only taken its first steps. It isn't, yet, in a position to 'walk,' let along 'run.' We now have an "Individual Right" which is incorporated to the States. Now, we need clarification from SCOTUS that the right allows for the liberty of exercising the right outside the home. That's the next step.

After that, it becomes a matter of the "2-year old" putting the STEPS together in a WALKING form that imparts consistency and keeps balance. Once that is achieved, the next stage is in mastering a RUNNING form that is not only consistent, but allows for increasing stamina.
See, that's the problem. As I noted in my earlier aside, I was comparing Heller to a 2 year old because McDonald was a YEAR AFTER HELLER. I was being GENEROUS to call it 2 years old. If HELLER actually WERE a child Heller would already be speaking, walking, reading books, learning algebra, ideally a few languages, and more. If Heller were NOT doing so, Heller would be considered to be likely to never mature beyond the 2 year old intellectual level it were stuck at. Brown met different benchmarks 10 years on. Shelley did too. Heller is far behind its peers is entirely the point, and believing it will catch up is based off nothing but wishful thinking rather than data.

Quote:
Originally Posted by TrappedinCalifornia View Post
If all of the above doesn't 'make the case' and you still desire a more 'radical' solution, then it's up to you to make YOUR case, not based on hyperbolic rants about Originalism or what "they" do or how "they" act, but based on a reasoned, achievable process which is not vulnerable to the same types of things which has brought us to where we currently are with the existing System.

[...] have a viable alternative ready to be 'immediately' put in place rather than simply leaving a void to be filled by... you hope... a 'better' alternative than Heller... before it is filled by... something else that you might feel is 'worse,' but someone else feels is 'better.'
Well, obviously given your way of looking at problems you care more about defending unjust systems rather than radical solutions that might lead to liberty.

A reasoned, achievable process is always the excuse the right makes for doing nothing in comparison to a reasoned, achievable and unjust process. This same reasoning is why gun rights are denied to people, in that the old unjust system works but "scary anarchy unless you prove it won't!". This is the same reasoning why we can't ever dismantle the surveillance state. You may be trapped in California and frankly I can't find a better metaphor for you than the ending of Don Giovanni,

You are trapped only because you will not repent and accept the radical steps necessary to be saved.
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  #556  
Old 05-04-2021, 12:25 AM
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What happened here?
What happened is that this thread has been subjected to not just "thread drift" or "jacking".

It has been the victim of an avalanche of Not just Walls of Text. But REGURGITATED GIANT WALLS OF TEXT. Of the same quotes OVER AND OVER. Even by the original posters of the quotes. As if they don't really have anything new to share, or add to the discussion. They just relish seeing their own words in print. OVER and OVER and OVER. Adding nothing to the conversation.

Which brings to mind this quote, from Plato.

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Wise men speak because they have something to say; Fools because they HAVE TO SAY SOMETHING.
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  #557  
Old 05-04-2021, 4:38 AM
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Conservative justices rule to have as little impact as possible. They walk on egg shells and make compromise after compromise. Liberal judges do whatever they want and rule however they want. Scalia’s compromised ruling has let lower courts run wild for the last 10+ years.
Yup. Conservative judges tend to see themselves as umpires calling balls and strikes. They don’t want to decide the outcome of the game.
Liberal judges see themselves “players”, who’s job it is to deliver wins for their team.
This tilts the scales of justice very much in favor of the left.

It also means that a win at SCOTUS (nationwide must-issue) will be hollow. If you look at significant cases or laws where there was resistance (abortion, civil rights, Jim Crow laws), they all required or did require, to be defended against numerous challenges and workarounds.

A controversial SCOTUS decision is like a computer program that’s under attack from hackers. It doesn’t matter how strong the security is, the program needs to be continually updated and patched to fend off attacks and stay secure.

Unfortunately, that’s probably not going to happen here. Blue state legislatures will do everything in their power to neuter must-issue carry laws. The courrs will largely bless what they do. And in the years it takes for a case to make it ti SCOTUS, we probably will no longer have 5 strong pro 2A justices.
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Old 05-04-2021, 6:05 AM
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To infringe is to restrict. Shall not be infringed means shall not be restricted.
“The right to keep and bear arms shall not be infringed”.

What “shall not be infringed”?
Answer: “the right”.
What is “the right”?
Answer: Gun rights as they were understood to exist at the 2A was written. The idea was to preserve existing rights, not create a new unlimited right.

Let’s say the dems sweep the 2022 mid terms and get a bunch of governors and favorable state legislatures. Their majority is strong enough to pass a constitution amendment locking-in the right to an abortion. The amendment states “the right to an abortion shall not be infringed”.

Does “shall not be infringed” mean someone can demand an abortion from their doctor (who doesn’t perform abortions) as their baby is being delivered? How about after? Probably not. Some deep blue states might take it that far, but that won’t necessarily be constitutionally protected.

Instead, you’d need to look at RvW and all the laws and cases since then and up to when the amendment was passed to determine the scope of the right, including its limitations, that “shall not be infringed”.
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Old 05-04-2021, 7:14 AM
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What happened here?
Check back in a year or so, or wait until CRPA/NRA send an email advising of a decision. Until then, nothing of value will come out of this thread. It will totally devolve into many, many text walls, enough to paper the White House, and beyond. It’s all tea leaves and minutia, ad nauseam.
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Old 05-04-2021, 8:57 AM
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What happened here?
This:


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Originally Posted by lastinline View Post
Will this thread get to 500 pages?????
I can easily see it going to 5,000 posts prior to a ruling.
This will keep y’all busy for the next year.
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I'll help if you agree to help.
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