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    Regular Member reefteach's Avatar
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    http://news.enquirer.com/apps/pbcs.d...612040375/1090

    Gun lobby has misinformed public
    I appreciate the desire of "Your voice" columnist Charles Donabedian ("Seek facts in debate over gun rights," Nov. 28) to inject fact into the debate over gun rights, and I thank him for his service to our country in Vietnam. His argument regarding the role of the Second Amendment in America today, however, is demonstrably wrong

    I'm not a lawyer, but many learned individuals - including four U.S. Circuit Courts of Appeal - disagree with Donabedian's analysis. In fact, the New York Times editorial to which he refers merely repeats the state of the law as it exists today.

    As a social matter, there is no doubt many Americans assume the Second Amendment guarantees an individual right to own a gun. And while the Fifth Circuit repeated that misconception in Emerson v. U.S., it is outnumbered by courts in the Fourth, Sixth, Eighth and Ninth Circuits. Consistent with the U.S. Supreme Court's 1939 ruling in U.S. v. Miller, they understand the amendment "guarantees a collective rather than an individual right" to bear arms. (That language, by the way, comes from the Sixth Circuit, sitting right there in my hometown of Cincinnati, and has been the law in Ohio, Tennessee, Kentucky and Michigan since 1976.) The Second Amendment gives states the right to maintain militias - today's National Guard. It doesn't give individuals the right to own guns.

    And another thing: The idea that individuals could have a right to arm themselves against the government violates even a lay reading of the treason clause of Article III, Section 3 of the U.S. Constitution. Is the Second Amendment really a self-destruct button? Of course not.

    For too long, the gun lobby has misinformed patriotic Americans about the nature of gun rights, and has blocked popular means of keeping guns out of the hands of gangsters and felons, based on its spurious reading of the Second Amendment.

    If you weren't afraid your car would be confiscated after registering it at the BMV, then you won't be afraid to register your gun at the sheriff's office. If you think licensing is a good idea before people can drive, you probably think licensing is a good idea before people can shoot.

    Gun lobby politics - not the Second Amendment - keep these measures from becoming law.

    Doug Pennington, a lifelong Cincinnati resident, moved to Washington in June to work for the Brady Center to Prevent Gun Violence. This column reflects his personal views.

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    Someone should inform him of the surpreme courts 1990 ruling that indead the right of the people is an individual right.

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    Doug Pennington, a lifelong Cincinnati resident, moved to Washington in June to work for the Brady Center to Prevent Gun Violence. This column reflects his personal views.
    No need to read any further. Registration isn't required for cars either unless you wish to drive to them on public roads. Also, I didn't read the right to keep and drive cars in Constitution.

    US vs Miller basically said weapon Miller owned wasn't used by military therefore the government should be able to regulate it. Had Miller or legal counsel actually shown up to court, he could have easily shown that WWI units used sawed off shotguns in trench fighting and probably won his case. The fact the lower court laughed US atty out of room when he brought his case before the judge is extremely telling.

    How is this Mr. Pennington? You move to Washington DC proper (live in the city) and let me know how that glorious gun-free city is doing? Remember, give the criminal want he wants, don't resist and ponder how glorious it is to be gun free.

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    For years I took no particular interest in the gun control debate until I started to notice just how BAD the anti's arguments are. Clearly they either knew little about guns or they intentionally printed lies. As time passed I became convinced that if it was ignorance it was of the unforgivable variety. More than likely, anti's have a total disregard for the truth and absolutely no qualms about using outright lies to push their agenda. Any group that needs to rely on misinformation, distortions and lies to further their cause is a group that is desperate and dangerous.

    We know that few people bother to verify things they've been told. We need a better educated populace about the workings of firearms, the history of the 2nd Amendment and why it's relevance is as great in the 21st century as it was in the 18th century.
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    "the right of the people to keep and bear Arms shall not be infringed" Does this say the right of the militia to keep and bear arms? No. The right of the government to pick who gets to keep and bear arms? No. It says the people. Who are the people? According to dictionary.com: the people: the ordinary people of a country as opposed to the aristocracy etc. When the gun grabbers get their heads out of the sand and stop screwing around with the words in the Bill of Rights, maybe this kind of garbage will stop. Until then, we will have to listen to these people and try to let the truth be known.

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    I love how it is argued that the words "the people" in the Second Amendment apply to the state (since when have governments needed their right to own guns protected?), but do not apply that to the other amendments. If the Secnd Amendment is a collective right, aren't the 1st, 4th, 9th, and 10th collective rights too?

    1st Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[/quote]

    2nd Amendment:

    A well regulated Militia, being necessary to the security of a free State, the right of thepeopleto keep and bear Arms shall not be infringed.

    4th Amendment:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    9th Amendment:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    10th Amendment:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

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    hirundo82 wrote:
    I love how it is argued that the words "the people" in the Second Amendment apply to the state


    In fact, this is the only issue where anybody attempts to argue that "the people" is or was intended to refer to "the state". If you were to try this argument with any other right or part of the constitution you would be laughed out of the debate.

    The very fact that this right is spelled out in the bill of rights makes this argument silly on its face since the bill of rights was drawn up BECAUSE the state was seen as having too much power. The representatives would not ratify the constitution until the rights of the individual citizens were made clear and immutable - which is the entire reason the bill of rights was drawn up.

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    Regular Member The Donkey's Avatar
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    The 5th Circuit's decision in United States v. Emerson recognizing that the Second Amendment creates individual rights is the best piece of judicial scholarship on theSecond Amendmentso far. It looks to the history of the Amendment -- including its ratification, rather than just the text: if all you do is look at the text you end up in circular arguments with handgun controlfolks like the author of the Cincinatti Enquirer piece.

    The 5th Circuit applies a balancing test todetermine the Constitutionality of gun controllaws under the Second Amendment.

    What do you think about the 5th Circuit's reasoning andits balancing test?

    The Donkey

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    Donk,

    (Imagine playful, teasing tone.) We're not all lawyers here. I don't happen to have my copy of Emerson with me.

    Dispense some wisdom on us. What's the test?What are the advantages and liabilities of that particular test? See any false or misleading premises to it?

    Come on, give with the analysis so we can learn.


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. (Because that is the only way freedom can work. We have to respect all rights, all the time--for each other and everybody else--and strive to win the rights of the other guy as much as for ourselves.)

    Equality and consent of the governed: We're all equal. How can another legitimately govern me without my express consent?

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    hirundo82 wrote:

    4th Amendment:

    The right of the people to be secure in their persons, houses, papers, and effects. . .



    I think thatthis amendment makes it most clear that "the people" are all the average citizens, and I think it makes perfect sense to read it to mean the same thing in all the other amendments.

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    I think the Donkey is right - Emerson says, and I'm just paraphrasing, "hey look - let's get real, the Second Amendment does secure an individual right, subject to reasonable regulation."

    And under contemporary constitutional doctrine since the legal-realist crtique of the Lochner era, all infringements of rights are subject to a balancing test. And like it or not, in the modern era, courts are quite deferential to government regulation of our lives and review such regulation so as to look for a "rational basis." Only some infringements of rights are reviewed under "heightened scrutiny."

    Miller was all about a guy, or his lawyers, arguing that the Second Amendment precludes the government from making him register (via a federal tax stamp) his sawed off shotgun. And in Miller, in 1939, the Supreme Court appeared to agree with the argument facially, and remanded the case for a factual inquiry to the lower court as to whether a sawed off shotgun was due such protection under a 2 part test:

    1. Was the sawed off shotgun in common use in society?

    2. Was the sawed off shotgun useful for militia duty in the common defense?

    Apparently Mr. Miller soon died and the case never went much farther.

    In the Parker case being lititgated in the DC Federal Court of Appeals, the case in not anywhere close to a miller fact pattern or argument - the Parker plaintiffs plead with teh court essentially as follows - "Please you honor, we beg you, in light of the Second Amendment, to allow us to register handguns! And you honor, we ask the court to strike down the DC statute which requires us to keep our guns dissasembled and locked up at all times, even at home duing a blackout, flood, or other time of peril!."

    None of the Plaintiffs are arguing that felons must be allowed to register handguns, or demand to register "machine pistols."

    Hence, even under a lowly rational basis review, the DC Federal Circuit Court of Appeals should rule in favor of Ms. Parker et al.

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    Regular Member The Donkey's Avatar
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    Citizen wrote:
    Donk,

    (Imagine playful, teasing tone.) We're not all lawyers here. I don't happen to have my copy of Emerson with me.

    Dispense some wisdom on us. What's the test?What are the advantages and liabilities of that particular test? See any false or misleading premises to it?

    Come on, give with the analysis so we can learn.

    You can get the decision at this link, which is a long, but worthwhile read:


    http://caselaw.lp.findlaw.com/script...;no=9910331cr0

    A summary of the Second Amendment analysis can be had here:

    http://writ.news.findlaw.com/dorf/20011031.html

    And an op edon the balancing test, and what it means for gun owners:

    http://www.davekopel.com/NRO/2001/A-...the-People.htm

    Donkey

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    Video on a short-barreled shotgun being designed for the military.

    http://www.youtube.com/watch?v=p4ebtj1jR7c

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    Founder's Club Member Skeptic's Avatar
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    What a me-tard.

    How many false assertions can he throw into one short peice?

    To say that second amendment gives the right to the National Guard and that the militia is not the people is ridiculous.

    As pointed out, the authors of the Bill of Rights were fairly well educated, and understood the difference beetween "the people" and "the state". In fact, the only ones who seem to have a problem with that distinction are fascists and marxists.


    Keeping guns out of the hands of gangsters and felons? Please, that is already legal. Heck; if criminals can get drugs in prison, how do the victim disarmnament advocates think disarming the victims is going to stop the bad guys from being armed?


    Meanwhile, while there are not yet organized government efforts to round up cars, there certainly have been such efforts to round up firearms.




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    Regular Member Flintlock's Avatar
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    Skeptic wrote:
    To say that second amendment gives the right to the National Guard and that the militia is not the people is ridiculous.


    I know, it's insane. It's almost comical to me that the antis say that the 2nd amendment is about the national guard when the guard wasn't established until 1903. The 2nd amendment was ratified in 1791. The 2nd amendment actually says what the militiaentails in the same amendment by saying "A well regulated militia" and also the words "the right of the people". The only place"state" is mentioned is when it says that "being necessary to the securityof a free state". States don't have rights. The federal government doesn't have rights. It says "the right of the people" in the second amendment, not "the power of the government".
    Peace through superior firepower

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    "When a strong man, fully armed, guards his own house, his possessions are undisturbed.

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    exceltoexcel wrote:
    Someone should inform him of the surpreme courts 1990 ruling that indead the right of the people is an individual right.

    I presume you are referring to United States v. Verdugo-Urquidez where "the people" was found to mean individual American citizens.

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    I'll see your Second Amendment, and raise you a Chapter 13, § 311.

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
    Why open carry? Because 1911 > 911.

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    AbNo wrote:
    I'll see your Second Amendment, and raise you a Chapter 13, § 311.

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
    Isn't there a further statute that defines the unorganized militia as any male registered for selective service? I seem to remember reading that somewhere.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Not that I'm aware of.

    I know VIRGINIA's state code says....

    § 44-1. Composition of militia.

    The militia of the Commonwealth of Virginia shall consist of all able-bodied citizens of this Commonwealth and all other able-bodied persons resident in this Commonwealth who have declared their intention to become citizens of the United States, who are at least sixteen years of age and, except as hereinafter provided, not more than fifty-five years of age. The militia shall be divided into four classes, the National Guard, which includes the Army National Guard and the Air National Guard, the Virginia State Defense Force, the naval militia, and the unorganized militia.
    Why open carry? Because 1911 > 911.

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    Campaign Veteran deepdiver's Avatar
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    AbNo wrote:
    Not that I'm aware of.

    I know VIRGINIA's state code says....

    § 44-1. Composition of militia.

    The militia of the Commonwealth of Virginia shall consist of all able-bodied citizens of this Commonwealth and all other able-bodied persons resident in this Commonwealth who have declared their intention to become citizens of the United States, who are at least sixteen years of age and, except as hereinafter provided, not more than fifty-five years of age. The militia shall be divided into four classes, the National Guard, which includes the Army National Guard and the Air National Guard, the Virginia State Defense Force, the naval militia, and the unorganized militia.
    Well, there ya go right there for VA. Able bodied citizens 16-55 are unorganized militia. So anyone who fits that profile, even by antis collectivist view of the 2A, shall not have their right to keep and bear arms infringed. I would take that to mean that Stanislaw (IIRC) and his ilk are in violation of Virginians federal and state constitutional rights to say there is any place they cannot carry a firearm or any type of firearm they cannot carry. That'll fly. :?


    I will have to look for the federal law defining militias. I just don't recall where or when I saw that and I am not even sure I remember it correctly, but I am sure that if I am correctly remembering, it was a federal law, not any state's.

    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Is this the same knucklehead Pennington who got axed from a job recently as a reporter for spewing lies?

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    deepdiver wrote:
    I will have to look for the federal law defining militias.* I just don't recall where or when I saw that and I am not even sure I remember it correctly, but I am sure that if I am correctly remembering, it was a federal law, not any state's.
    Um, my posting of Virginia's law was an addon to my posting of the federal law.


    AbNo wrote:
    I'll see your Second Amendment, and raise you a Chapter 13, § 311.

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
    http://www.law.cornell.edu/uscode/10/311.html
    Why open carry? Because 1911 > 911.

  23. #23
    Campaign Veteran deepdiver's Avatar
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    AbNo wrote:
    deepdiver wrote:
    I will have to look for the federal law defining militias. I just don't recall where or when I saw that and I am not even sure I remember it correctly, but I am sure that if I am correctly remembering, it was a federal law, not any state's.
    Um, my posting of Virginia's law was an addon to my posting of the federal law.


    AbNo wrote:
    I'll see your Second Amendment, and raise you a Chapter 13, § 311.

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
    http://www.law.cornell.edu/uscode/10/311.html
    Sorry! I understood what you meant, I just misread what you posted if that makes sense. Been very stressed and tired of late and not thinking to quickly all the time.

    That must be the code I was thinking of under which all males, 17-45 are members of the unorganized militia if not already serving. I'm just not focused tonight.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    DD, I've been up for 30 hours.

    You have nothing on me.
    Why open carry? Because 1911 > 911.

  25. #25
    Campaign Veteran deepdiver's Avatar
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    AbNo wrote:
    DD, I've been up for 30 hours.

    You have nothing on me.
    You're right. I haven't stayed up for that long straight in a while and I hope I don't have to in the forseeable future. But then I'm not getting any younger.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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