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Thread: The Heller "Decision"

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    While I respect what everyone at Open Carry.org is doing, I have to disagree with the widely held idea that last year's Heller decision, by the Supreme Court, was in any way a "good thing."

    First of all, the Supreme Court has absolutely no right or power to even consider any modifications to the Constitution. Period. The Constitution is the overriding law of the land and the Supreme Court's job - their only legitimate function - is to interpret legal cases as to whether the laws in question either violate the Constitution or not. Many people have the mistaken idea that the Supreme Court is empowered to "interpret" the Constitution as they see fit. In fact, the duty of the Court is to determine whether all laws are in accordance with the Constitution, which, again, is the supreme law of the land. So, again, the Supreme Court had no legal right or jurisdiction to tell us what the Second Amendment means and whether or not we have a legal right to possess firearms. The relevent case was Heller vs. D.C., in which case the Court should have been ruling on whether the D.C. gun ban is constitutional or not. That was the issue; not whether the Constitution's Second Amendment is valid or not.

    Given that, I would like to point out, for the vast majority of gun owners, who seem to have missed this crucial point, that when the Court rendered its "decision" on Heller, the words "...within reasonable limitations..."appeared in their pronouncement that we do, indeed, have a Second Amendment right to possess firearms. The very fact that this verbiage was included echoes the government's continuing attitude that firearms ownership is a mere privilege granted by the state and not an inalienable right. This statement opens the door for the government to further erode our Second Amendment guarantee of an existing right. The Second Amendment doesn't grant any rights, for rights cannot be granted. Rights are inalienable conditions of our existence. We all have the right to defend our lives and that includes defending them against the aggressions of a despotic government. Without this fundamental right, all our other rights are undefendable.

    So, when I hear anyone, especially gun owners, say the Heller decision was a good thing and that they're glad the Supreme Court is "on our side," I have to wonder what part of "...shall not be infringed" they fail to understand. The fact is, every gun law created since the National Firearms Act of 1934 is a flagrant violation of the Second Amendment. Where does anyone, then, get the idea that adding successive layers of bureaucratic controls over the Second Amendment is in any way legal, let alone good?

    If gun owners and the organizations that profess to support them are so concerned with education about firearms, they might start with learning a basic understanding of why we have a Constitution, in the first place, and what it really means.

    Gary
    www.thefreezone.garyrea.com

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    I think part of the issue is, it could have turned out very badly for gun owners, and as it stands it didn't turn out quite so bad as it could have been.

    Remember, it was only 5-4, and if it had been 4-5 then we'd be hearing about how the 2A is not a right and that government can regulate it any way they like.

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    It could have turned out worse, but that doesn't alter the fact it was a loss.
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

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    True, Walleye. However, the thing is, most are blinded to the fact that the government has already - long ago - made our right into a government-regulated "privilege." The damage has already been done. Continually adding more and more layers of regulations simply reinforces the government's negation of our rights.

    So, what is the alternative? Well, instead of wasting time, money and energy campaigning for little "gains" here and there by asking government not to restrict our rights quite so much, we should be putting that same time, money and energy into campaigning for the complete and utter repeal of gun laws - all of them! That is how you defend the Second Amendment. To do anything less sends the message that we don't care about our rights, or that we don't even understand what they are. I have no trouble imagining that behind closed doors our rulers are laughing out loud at how stupid and sheep-like we are.

    An example of what I'm talking about can be found in this video, which is on the main page of this site: KIII TV Video Report on TX Open Carry
    Note the reporter says the pending Texas Open Carry law would "make it legal" to openly carry a gun. NO! You already have the right to carry a gun - or any kind of weapon - openly or concealed, anywhere and anytime! What makes this legal is the Second Amendment, which is all the codification necessary to protect your right to self-defense. ALL the laws that restrict the Second Amendment are what is illegal!

    Gary
    http://www.thefreezone.garyrea.com

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    GaryR56 wrote:
    While I respect what everyone at Open Carry.org is doing, I have to disagree with the widely held idea that last year's Heller decision, by the Supreme Court, was in any way a "good thing."
    it was a good thing in that it backed up the already known fact ( but with a judicial precedent) that the RTKBA is in fact a right, and a pre-existing one at that. That in and of itself gives us a little more ammo in legislative fights
    First of all, the Supreme Court has absolutely no right or power to even consider any modifications to the Constitution. Period. The Constitution is the overriding law of the land and the Supreme Court's job - their only legitimate function - is to interpret legal cases as to whether the laws in question either violate the Constitution or not. Many people have the mistaken idea that the Supreme Court is empowered to "interpret" the Constitution as they see fit. In fact, the duty of the Court is to determine whether all laws are in accordance with the Constitution, which, again, is the supreme law of the land. So, again, the Supreme Court had no legal right or jurisdiction to tell us what the Second Amendment means and whether or not we have a legal right to possess firearms. The relevent case was Heller vs. D.C., in which case the Court should have been ruling on whether the D.C. gun ban is constitutional or not. That was the issue; not whether the Constitution's Second Amendment is valid or not.
    actually, that's not entirely true. read article III of the U.S. constitution. The constitution says this about SCOTUS:

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. ~ U.S. constitution, Article III, section 2.

    as for ensuring that laws are constitutional, that power has always constitutionally been the domain of the Sovereign States. Of course that was before "States Rights" was such a villified term.

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    Unreconstructed, the relevant term in Article III is "cases," referring to laws other than the Constitution itself. As I said, the Supreme Court has no jurisdiction to reinterpret, modify or rewrite the Constitution in any way. This power rests with Congress alone and, in order to do it, Congress must convene a Constitutional Convention. So, no, I am not incorrect at all in saying what I said. The Supreme Court's sole job is to interpret case law, assuring that the laws of our several states and of the federal government do not violate the Constitution. For our purposes, the Supreme Court should have long ago struck down all gun control laws as violations of the Second Amendment. By failing (actually, refusing) to do so, they are, at best, derelict in their duty. At worst, they are traitors to the United States of America.

    Yes, the several states are empowered to challenge the constitutionality of any law affecting their jurisdiction, but the final arbiter of last resort is the federal Supreme Court. That's why it's called the Supreme Court.

    We don't need any more "ammo" in the legislative fight than the Second Amendment itself. It says what it says, it means what it says. The only fight necessary is the one to repeal all gun laws. Period. Anything less than this simply plays right into the fascistic government's hands. You don't defend your rights by asking permission (from the very same people who are denying your rights) to exercise them.

    Gary
    http://www.thefreezone.garyrea.com

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    GaryR56 wrote:
    We don't need any more "ammo" in the legislative fight than the Second Amendment itself. It says what it says, it means what it says. The only fight necessary is the one to repeal all gun laws. Period.
    Legally speaking, you are of course correct. Practically speaking, you're not. I don't know whether you've had any experience with any of the alphabet agencies, but I have. And I've read about other people's experiences as well.

    When a government agency flat-outignores the plain wording of the law, and acts like they don't know what common words mean; instead claiming that the law means something that it very clearly does not say, and when they back up their absurd and illegal position with lawsuits, criminal charges, etc., even though their actions are completely illegal--what precisely would you personally do? Just keep repeating the law from your jail cell? I know of people who are doing exactly that, because they were illegally put in jail. Trust me--for the people who are in danger of that happening to them, the more laws and court decisions available for them to use, the better.

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    While I have no such experience, I'm very well aware of how corrupt and fascistic the regime is - no matter what puppet is currently sitting in the oval office. Basically, this government was hijacked in 1913 by a gang of international criminals and it's been theirs ever since.

    I don't have a solution, other than waking up the bulk of the American people to what has happened so that we can begin to rebuild our government, first, by using the Tenth Amendment to get every state to declare its sovereignty from the federal government. Of course, I'm very much aware that each and every state is rife with the minions of the same criminals who run the federal government, so that won't be an easy task, either, although nine states have already declared sovereignty under the Tenth Amendment and some twenty more are considering it. Basically, we're headed for a showdown and it could get very ugly - which is why they want to disarm us, of course.

    What is so amazing to me is how many people will look at all these new layers of controls over their rights and proclaim it's a good thing because the government is "allowing" them to keep the illusion that they have some measure of freedom - even though that "freedom" is highly limited and at the discretion of the state. So, the gun rights organizations keep giving away still more with each passing of a new law that makes some pretense of "lifting restrictions" while imposing others. For example, Mississippi's HB2036, which was supposedly going to "protect" gun owners from gun confiscations in the event of martial law (which, in itself, raises the question of what Mississippi has in mind doing in the near future). Instead of affording any real protections against gun seizures, though, the new law simply gives some vaguely worded hollow "restrictions" on that the state has chosen to impose upon its gun grabbing, which don't amount to any real restraints at all. Governments never voluntarily relinquish their power.

    In the end, if you want to exercise your rights, then do so. Stop asking government for permission. Yes, they can lock you up, but they can't lock us all up. Not without a fight, and that's what it's looking like it's going to take, eventually.

    Gary
    www.thefreezone.garyrea.com

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    GaryR56 wrote:
    While I have no such experience, I'm very well aware of how corrupt and fascistic the regime is - no matter what puppet is currently sitting in the oval office. Basically, this government was hijacked in 1913 by a gang of international criminals and it's been theirs ever since.
    [SNIP]
    I think the problem goes back to 1860, when the country was hijacked by a tyrant who viewed consolidated centralized power as the most important thing this country could have and trampled all over the 10th amendment.

    1913 was a bad year, as were 1934 and 1968. (The latter two being much more pertinent to this board and this discussion.)

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    GaryR56 wrote:
    While I respect what everyone at Open Carry.org is doing, I have to disagree with the widely held idea that last year's Heller decision, by the Supreme Court, was in any way a "good thing."

    First of all, the Supreme Court has absolutely no right or power to even consider any modifications to the Constitution. Period. The Constitution is the overriding law of the land and the Supreme Court's job - their only legitimate function - is to interpret legal cases as to whether the laws in question either violate the Constitution or not. Many people have the mistaken idea that the Supreme Court is empowered to "interpret" the Constitution as they see fit. In fact, the duty of the Court is to determine whether all laws are in accordance with the Constitution, which, again, is the supreme law of the land. So, again, the Supreme Court had no legal right or jurisdiction to tell us what the Second Amendment means and whether or not we have a legal right to possess firearms. The relevent case was Heller vs. D.C., in which case the Court should have been ruling on whether the D.C. gun ban is constitutional or not. That was the issue; not whether the Constitution's Second Amendment is valid or not.

    Given that, I would like to point out, for the vast majority of gun owners, who seem to have missed this crucial point, that when the Court rendered its "decision" on Heller, the words "...within reasonable limitations..."appeared in their pronouncement that we do, indeed, have a Second Amendment right to possess firearms. The very fact that this verbiage was included echoes the government's continuing attitude that firearms ownership is a mere privilege granted by the state and not an inalienable right. This statement opens the door for the government to further erode our Second Amendment guarantee of an existing right. The Second Amendment doesn't grant any rights, for rights cannot be granted. Rights are inalienable conditions of our existence. We all have the right to defend our lives and that includes defending them against the aggressions of a despotic government. Without this fundamental right, all our other rights are undefendable.

    So, when I hear anyone, especially gun owners, say the Heller decision was a good thing and that they're glad the Supreme Court is "on our side," I have to wonder what part of "...shall not be infringed" they fail to understand. The fact is, every gun law created since the National Firearms Act of 1934 is a flagrant violation of the Second Amendment. Where does anyone, then, get the idea that adding successive layers of bureaucratic controls over the Second Amendment is in any way legal, let alone good?

    If gun owners and the organizations that profess to support them are so concerned with education about firearms, they might start with learning a basic understanding of why we have a Constitution, in the first place, and what it really means.

    Gary
    http://www.thefreezone.garyrea.com
    All constitutonal provisions are subject to interpretation as they are usually written in broad but concise terms and conflict with other powers and rights - all rights are subject to reasonable regulation. Heller court implied strict scrutiny, a good thing, see n.27.

    Whether you like the way the world is or not is notrelevant - what is at issue is we all live in the real world and can make a difference within the system if we try.

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    Mike, it's simply not true that "all rights are subject to reasonable regulation." That's what the government wants us to believe, but the fact is that, if they are, indeed rights at all, they are inalienable. That means they are conditions of human existence and cannot be divorced from the very nature of being a living human being. Take the right to life, as an example. It is certainly the most inalienable right, as all our other rights stem from it. If you do not have the unquestioned right to continue living, as a condition of the fact that you are living, then all other rights become meaningless.

    Well, the same is true of the right to self-defense - which is what the Second Amendment protects. The Second Amendment doesn't say anything about what means by which we defend our lives; it only says "arms," implying that any and all forms of weaponry are equally valid tools for defending one's life. It is the defense of life that is the central tenet of the Second Amendment, not the possession of firearms. Firearms, as such, are not specifically mentioned and the term "arms" covers all types of weapons; basically, anything that can be used by human beings to defend their lives with.

    The Second Amendment is so inextricably linked with the right to life - which, again, is our most fundamental right, from which all others flow - that it is not subject to debate or regulation and that is why the operative wording of the Second Amendment is "shall not be infringed."

    Gary
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    shad0wfax wrote:
    GaryR56 wrote:
    While I have no such experience, I'm very well aware of how corrupt and fascistic the regime is - no matter what puppet is currently sitting in the oval office. Basically, this government was hijacked in 1913 by a gang of international criminals and it's been theirs ever since.
    [SNIP]
    I think the problem goes back to 1860, when the country was hijacked by a tyrant who viewed consolidated centralized power as the most important thing this country could have and trampled all over the 10th amendment.

    1913 was a bad year, as were 1934 and 1968. (The latter two being much more pertinent to this board and this discussion.)
    Well, we could go back as far as the creation of the Constitution, itself, according to Kenneth W. Royce's book "Hologram of Liberty." Then there are those who believe the young republic was stillborn, bastardized by the Freemasons and illuminists who were among the founders and saw to it that the Federalist version of the Constitution was written to serve their agenda. So, I guess it all depends on where you want to draw the historical line. But, yes, Lincoln did his part, also, and the subsequent incursions in 1913, 1934, 1968, 2001 (Patriot Act), 2005 (the SSP), and so on are all nails in our collective coffin.

    Gary
    www.thefreezone.garyrea.com

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    This is from 'The High Road' forum back in '06:

    (First op-ed in a NY newspaper which brings up the history of the Sullivan Act.)

    Big Tim Sullivan was a notorious Irish gangster whose mob controlled New York City south of 14th Street around the turn of the 20th century. Throwing in his lot with the likes of Monk Eastman, Paul Kelly and Arnold Rothstein, Sullivan became an expert on that dark nexus where organized crime and politics consummate their unholy alliance, and soon became an influential figure in the corrupt Democratic machine there known as Tammany Hall.

    He made the relatively easy transition from dangerous street thug and political ward heeler to New York state senator first in 1894. He left Albany in 1903 for a term in the U.S. House of Representatives, and returned to the legislature in 1909 after complaining that he lacked the juice in Washington he'd grown accustomed to on his home turf.

    In 1911, the Irish and Jewish mobsters who put him into office faced a growing problem -- the Italians. Immigrant mafiosi newly arrived from Sicily and Naples were horning in on what had once been their exclusive domain. Gunfights on the Lower East Side and the neighborhood around Mulberry Street that was to become Little Italy grew more and more frequent, and it was getting so that you couldn't even shake down a barber shop or a greengrocer without some guy fresh off the boat taking a shot at you.

    Not to worry, Big Tim told the boys. And in 1911, he took care of the problem.

    The Sullivan Act was passed into law in New York state in 1911 and remains Big Tim's primary legacy. It effectively banned most people from owning and, especially, carrying handguns. Under the onerous conditions of the corrupted law, a peaceable citizen of sound mind could apply for a pistol permit, but if any of a number of elected or appointed officials objected to its issuance, he or she could be denied the license. The law remains in effect to this day and has been used as the basis for gun laws in many other states and municipalities.

    One of those is Washington, D.C., which enacted its handgun law in 1973. Like the Sullivan law, it was written as a "may issue" permit statute, rather than the more common "must issue" permit statutes of many states. Under the "may issue" provision, a person can pass a police background check, take a gun safety course and jump through whatever other hoops the law requires, and still be turned down for a permit at the discretion of government officials.

    Actual criminals, who have no problem breaking the laws against robbery,rape and murder, routinely ignore the absurd pistol-permitting process.

    Last week, a challenge to the D.C. law wound up being argued before the United States Supreme Court. The case stemmed from a lawsuit filed by Dick Anthony Heller, 65, an armed security guard, who sued the district after it rejected his application to keep a handgun at his home for protection. A lower court threw the D.C. statute out, ruling it to be unreasonable and in violation of Heller's rights under the Second Amendment to the U.S. Constitution. The district appealed, and for the first time in our nation's history, the high court is preparing to rule on what the framers actually meant when they wrote the Second Amendment.

    For many, that meaning has long been clear as glass: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    Two clauses that some smart editor might have made into two sentences -- the first of which calls for the establishment of a "well regulated militia," thought by most authorities to be the present National Guard, and the second, "the right of the people to keep and bear arms, shall not be infringed," which needs no interpretation at all. Beginning in the 1960s, however, left-leaning legal theorists and postmodern politicians began putting forth the notion that the Second Amendment had nothing to do with individual rights, that it instead was intended simply to make sure that the state-regulated militia members had guns. This ridiculous reading flew in the face of much that was written by Jefferson, Washington and the other men of action who bought our country's independence with blood and ink and gunpowder, but scant attention was paid.

    Guns kill people, the revisionists said. We have the police to protect us, and the truths of 1776 have no place in 20th century society.

    Big Tim Sullivan's law was mimeographed, retyped and copied out by hand, and sent around to state capitols and city halls around the country, where politicians -- primarily liberal Democrats -- took up his tainted cause.

    The old gangster would have gotten a laugh had he lived to see the results of his crooked efforts. But a year after the Sullivan Act was passed in Albany, he went insane -- the result, it is said, of tertiary syphilis -- and was placed in a lunatic asylum. A year after that, he escaped, lay down on some railroad tracks up in the Bronx and was cut into three ragged pieces by a slow-moving freight train.

    As a dyed-in-the-wool Democrat of nearly 35 years' standing, I never thought I'd say this, but thank goodness for Chief Justice John Roberts and Associate Justices Anthony Kennedy, Samuel Alito, Antonin Scalia and Clarence Thomas. They are the majority on the first high court in our nation's history to have the courage to tackle the Second Amendment issue head on.

    And if the statements they made and the questions they asked last week as attorneys presented their oral arguments in the case are any indication, D.C. residents and those throughout the country may be liberated from the most outlandish and onerous gun control measures the states and cities have been able to pass in the four decades since the silly "Summer of Love" turned this great nation of ours on its head.

    To begin with, the five justices clearly indicated that the "well regulated militia" clause is indeed separate from the "keep and bear arms" clause, and that alone is a huge step forward. How exactly they will rule on the specifics of the Washington law is less clear, but any easing of the restrictions it carries will represent a huge victory for gun owners everywhere.

    Once the court sets its precedent, New York's Sullivan Act seems a likely next target for challenge by downtrodden gun owners whose rights have been violated for far too long. <snip>

    Since its ratification by congress on September 21, 1789, the Second Amendment has never before been interpreted as to its actual meaning and intent by the Supreme Court.

    Hopefully, once the justices have done the right thing by Jefferson, Washington, and the American people, the matter will not come up again for another 219 years, at least."



    Now... here's the 'diamond bullet'.

    As SCJ Scalia wrote (and for some reason has been near totally ignored):

    "The Second Amendment extends prima-facie to all instruments that constitute bearable arms. The Amendment explicitly recognizes the pre-existance of the right and declares only that it shall not be infringed."

    ALL instruments... Borne... Carried. Arms... not limited to firearms. Not limited to type of 'instrument'. No mention of capacity, cyclic rate of fire, calibre, design, lethality, size, length, type, purpose or borne open/concealed.

    Problem... The 'Right' willNOT defended. Denial of the Right will continue to be enforced thru various degres of continued tyranny in such as DC, MD, NJ, NY, IL CA... etc. AND... the inhabitants will continue to tolerate it.

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    Sonora Rebel wrote:
    Now... here's the 'diamond bullet'.

    As SCJ Scalia wrote (and for some reason has been near totally ignored):

    "The Second Amendment extends prima-facie to all instruments that constitute bearable arms. The Amendment explicitly recognizes the pre-existance of the right and declares only that it shall not be infringed."

    ALL instruments... Borne... Carried. Arms... not limited to firearms. Not limited to type of 'instrument'. No mention of capacity, cyclic rate of fire, calibre, design, lethality, size, length, type, purpose or borne open/concealed.

    He then goes on to contradict himself and say that "military" weapons are not protected under the second amendment. So which is it?

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    I'm assuming he refers to offensive weapons such as mortars, RPG's, artillery, anti-aircraft weapons, bombs (grenades) etc.

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    Sonora Rebel wrote:
    I'm assuming he refers to offensive weapons such as mortars, RPG's, artillery, anti-aircraft weapons, bombs (grenades) etc.


    No, he actually specifically refers to the M16.

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    M-16 is full auto/select fire. Cite on that?

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    Sonora Rebel wrote:
    M-16 is full auto/select fire. Cite on that?

    What does it matter what it is, he just said it covers all instruments that are "bearable arms." Select fire weapons are bearable arms.



    It's hard to find thequotation because of all the discussions on Heller taking up the first 9999999 pages of search results. I posted it in another thread though. Maybe someone else has it.




    EDIT:

    Here you go...

    We also recognize another important limitation on the
    right to keep and carry arms. Miller said, as we have
    explained, that the sorts of weapons protected were those
    “in common use at the time.” 307 U. S., at 179. We think
    that limitation is fairly supported by the historical tradi­
    tion of prohibiting the carrying of “dangerous and unusual
    weapons.”...

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



    I could have sworn there was one more specific than that where he actually says the second amendment cannot protect weapons designed for military use, but that's the only one I could find right now.


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    But the fact that modern developments have lim*ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
    This is an interesting comment.

    It seems to say that regardless of the future developments of advanced weaponry the 2nd only protects bearable arms.

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    AWDstylez wrote:
    Sonora Rebel wrote:
    Now... here's the 'diamond bullet'.

    As SCJ Scalia wrote (and for some reason has been near totally ignored):

    "The Second Amendment extends prima-facie to all instruments that constitute bearable arms. The Amendment explicitly recognizes the pre-existance of the right and declares only that it shall not be infringed."

    ALL instruments... Borne... Carried. Arms... not limited to firearms. Not limited to type of 'instrument'. No mention of capacity, cyclic rate of fire, calibre, design, lethality, size, length, type, purpose or borne open/concealed.

    He then goes on to contradict himself and say that "military" weapons are not protected under the second amendment. So which is it?
    Please read the decision very carefully before you state that he contradicts himself...



    It may be objected that if weapons that are most useful
    in military service—M-16 rifles and the like—may be
    banned, then the Second Amendment right is completely
    detached from the prefatory clause.
    But as we have said,
    the conception of the militia at the time of the Second
    Amendment’s ratification was the body of all citizens
    capable of military service,
    who would bring the sorts of
    lawful weapons that they possessed at home to militia
    duty.
    It may well be true today that a militia, to be as
    effective as militias in the 18th century, would require
    sophisticated arms that are highly unusual in society at
    large. Indeed, it may be true that no amount of small
    arms could be useful against modern-day bombers and
    tanks. But the fact that modern developments have lim­
    ited the degree of fit between the prefatory clause and the
    protected right cannot change our interpretation of the
    right
    .
    What he's saying there is that the left might try to argue that military weapons should be banned or regulated (which they are under the NFA), and because of that then the prefatory clause of the 2nd amendment is applicable only to the militia and not the individual and therefore the right to keep and bear arms is a collective right and not an individuals right. Therefore Heller has no right to keep and bear arms in DC.

    But, Scalia points out that thisargument is incorrect. Scalia's interpretation is that the 2nd amendment is an individuals right and not the right of the militia and that despite modern changes in weaponry, the entire 2nd amendment (prefatory and operative clause) applies to the individual and that interpretation is not changed.

    Scalia later on makes mention that DC vs Heller was narrow in scope and did not address the legality of certain states (or a district) to pass legislation that restricts or bans certain types of firearms, nor did DC vs Heller address NFA weapons (like the M-16). DC vs Heller was specifically about the right of an individual to posess a firearm and DC's infringement on that right by refusing to issue any sort of permit or license for Heller to keep a pistol in his home.

  21. #21
    Regular Member Sonora Rebel's Avatar
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    I'd not read that before. Interesting. That said... it seems not to matter still in those states and municipalities which still fail to observe the 2A as an individualright 'not infringed' upon. Idiots still write things like HR45 on the public time and money and would shove it up the public ass if they could. I don't think SCotUS will address the 2A again for a long time.

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    Regular Member shad0wfax's Avatar
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    Sonora Rebel wrote:
    I'd not read that before. Interesting. That said... it seems not to matter still in those states and municipalities which still fail to observe the 2A as an individualright 'not infringed' upon. Idiots still write things like HR45 on the public time and money and would shove it up the public ass if they could. I don't think SCotUS will address the 2A again for a long time.
    It's highly unlikely that the SCOTUS will hear another 2A case anytime soon. I've read the entire decision on DC vs Heller, including the minority (dissenting) opinion. One interesting point is that Scalia seems to invite a case on the restriction of certain types of weapons to be brought to the court here at the end of the Opinion:

    And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

  23. #23
    Regular Member shad0wfax's Avatar
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    I'll post a link to the entire DC vs Heller Decision. It's worth reading in its entirety, including the Dissenting arguments. (Know thine enemy.)



    http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

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    shad0wfax wrote:
    What he's saying there is that the left might try to argue that military weapons should be banned or regulated (which they are under the NFA), and because of that then the prefatory clause of the 2nd amendment is applicable only to the militia and not the individual and therefore the right to keep and bear arms is a collective right and not an individuals right. Therefore Heller has no right to keep and bear arms in DC.

    There is a line were he specifically states (in more words or less) that the second amendment cannot protect the use of military weapons like M16's. I wish I could find where I quoted it in the other thread.

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    I think there is more to the ruling than just 'shall not be infringed". If you read the Heller vs. DC ruling, you will notice thatJustice Scaliais responding ALSO to the desenting Justice Stevens opinion. The desenting Justices based their reasons for a NO vote on the fact that they belived the 2nd amendment is a collective right not a individual one. This is one reason whyit wasaddressed.

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