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Thread: The First Amendment Guide to the Second Amendment. Dave Kopel at Volokh Conspiracy

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    The First Amendment Guide to the Second Amendment. Dave Kopel at Volokh Conspiracy

    "As the article explains, post-Heller courts have frequently looked to the First Amendment for guidance on Second Amendment questions. This is sensible, because since the Supreme Court began taking the First Amendment seriously about 75 years ago, a rich body of precedent has been developed. The First and Second Amendments both safeguard natural, pre-existing human rights, whereas Amendments 4-8 are mainly controls on particular government processes, and Amendments 9-10 are interpretive rules.
    [ ... ]
    In Part III, I argue that the First and Second Amendments share several common interpretive principals. These are:
    • The Amendment Is Not Limited to Its Core. First Amendment free speech/press is not only about politics, and the Second Amendment is not only about self-defense.
    • The First and Second Amendments Have Synecdoches. “Press” means more than just printing presses, and “arms” includes more than just weapons.
    • Rights That Are Not Expressly Stated May Be Inferred from Other Rights—Examples Include the Right of Association and the Right of Self-Defense. Both Amendments protect non-textual rights whose existence is readily inferred from the text.
    • Not All Original Practices Are Per Se Constitutional Today. Laws against blasphemy or seditious libel are clear examples in the First Amendment context. They warn us to not accept uncritically every possible municipal gun law from the Founding Era.
    • Both Amendments Accommodate Technological Change. The First Amendment applies to the modern press (e.g., television and blogs), and the Second Amendment applies to modern firearms and accessories.
    • Both Amendments Aim for the Preservation or Restoration of Ordered Liberty and Civic Virtue. They seek to cultivate virtuous, responsible, and self-controlled citizens who will use their rights to improve the moral character of themselves and of the public, and who will preserve constitutionally ordered liberty.
    • Guns and newspapers are not like movies of men having sex with sheep. A point that is perhaps more obvious to the general public than to legal academia.

    http://www.washingtonpost.com/news/v...ond-amendment/

    http://papers.ssrn.com/sol3/Delivery..._code42480.pdf 457 KB 52 pages FREE registration required
    Last edited by Nightmare; 04-22-2014 at 08:09 AM.
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    + infinity

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    Footnote 7

    United States v. Cruikshank, 92 U.S. 542, 551–53 (1875) at 553 (The right to bear arms “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress,” and “has no other effect than to restrict the powers of the national government.”).
    I am responsible for my writing, not your understanding of it.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by Nightmare View Post
    United States v. Cruikshank, 92 U.S. 542, 551–53 (1875) at 553 (The right to bear arms “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress,” and “has no other effect than to restrict the powers of the national government.”).
    Well, it is a quaint notion.....academically speaking. Reality is a wee bit more blunt.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member DaveT319's Avatar
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    That ruling makes no sense whatsoever. How can a right guaranteed by the Constitution NOT be a right guaranteed by the Constitution?!

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    Campaign Veteran ATM's Avatar
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    Quote Originally Posted by DaveT319 View Post
    That ruling makes no sense whatsoever. How can a right guaranteed by the Constitution NOT be a right guaranteed by the Constitution?!
    I believe you are reading it wrong. In stating "The right to bear arms is not a right granted by the Constitution", they correctly refute a common misconception that the 2A grants, gives or allows these rights.

    The right itself preexisted its mention in the document which would serve to protect and guarantee it to future generations.

    Its only purpose was to act as a restriction upon the government, prohibiting infringement of the right of the people to keep and bear arms.

    It is a right guaranteed rather than granted in that the 2A doesn't allow or afford us anything we haven't always possessed, it simply and clearly prevents any attempts to infringe upon that right.

    It cannot be properly construed to define the scope of the right it protects, as is popularly argued these days, as that would be an impossible purpose according to its plain reading.

    Sounds like they still knew this very well back in 1875.
    Last edited by ATM; 04-23-2014 at 05:45 AM.

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    Quote Originally Posted by ATM View Post
    I believe you are reading it wrong. In stating "The right to bear arms is not a right granted by the Constitution", they correctly refute a common misconception that the 2A grants, gives or allows these rights. The right itself preexisted its mention in the document which would serve to protect and guarantee it to future generations. Its only purpose was to act as a restriction upon the government, prohibiting infringement of the right of the people to keep and bear arms. It is a right guaranteed rather than granted in that the 2A doesn't allow or afford us anything we haven't always possessed, it simply and clearly prevents any attempts to infringe upon that right. It cannot be properly construed to define the scope of the right it protects, as is popularly argued these days, as that would be an impossible purpose according to its plain reading.

    Sounds like they still knew this very well back in 1875.
    And this is the point of the essay that should be read in its entirety rather than mere excerpts, highlights and footnotes. It's better than TV!
    I am responsible for my writing, not your understanding of it.

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    Regular Member DaveT319's Avatar
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    Quote Originally Posted by ATM View Post
    I believe you are reading it wrong. In stating "The right to bear arms is not a right granted by the Constitution", they correctly refute a common misconception that the 2A grants, gives or allows these rights.

    The right itself preexisted its mention in the document which would serve to protect and guarantee it to future generations.

    Its only purpose was to act as a restriction upon the government, prohibiting infringement of the right of the people to keep and bear arms.

    It is a right guaranteed rather than granted in that the 2A doesn't allow or afford us anything we haven't always possessed, it simply and clearly prevents any attempts to infringe upon that right.

    It cannot be properly construed to define the scope of the right it protects, as is popularly argued these days, as that would be an impossible purpose according to its plain reading.

    Sounds like they still knew this very well back in 1875.
    Oh I see. Yes, I was putting the emphasis on the wrong word. Makes sense now.

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    Regular Member Rusty Young Man's Avatar
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    Quote Originally Posted by Nightmare View Post
    United States v. Cruikshank, 92 U.S. 542, 551–53 (1875) at 553 (The right to bear arms “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress,” and “has no other effect than to restrict the powers of the national government.”).
    Quote Originally Posted by OC for ME View Post
    Well, it is a quaint notion.....academically speaking. Reality is a wee bit more blunt.
    You're obviously reading it wrong then. It's obviously () saying that the 2nd Amendment has no effect other than to restrict the powers of the national government when it is in the context of a militia, which we know as the National Guard (despite the fact that it did not exist at the time since it was created I-don't-know how many years AFTER ratification).

    /(end dripping sarcasm, in case someone thinks I'd be stupid enough to utter one of the favorite (yet disproved time and time again) talking points of the antis)

    Good find Nightmare.
    Last edited by Rusty Young Man; 04-23-2014 at 09:55 PM. Reason: Smiley, spelling
    I carry to defend my loved ones; Desensitizing and educating are secondary & tertiary reasons. Anything else is unintended.

    “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” - Frederic Bastiat

    "When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle." - Edmund Burke

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