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2nd Amendment A Fundamental Right?

Beretta92FSLady

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I will focus on the 2nd Amendment since this is a CC/OC page.

Yes, the Second Amendment is an affirmation that the right to have arms is a fundamental right.

The Writ Of Habeas Corpus in Article I Section 9 allows for the suspension of liberties during a time of "Rebellion or invasion (edited)" (what ever would be deemed civil unrest).

Because the Federal Governments has received via the Constitution the Constitutional power to deny on a temporary basis the liberties of Americans, our fundamentals right are only right by birth but not under Constitution; by the inclusion of Article I Section 9, our fundamental rights have been deemed privileges.

Fundamental rights can not be taken away, they can be denied. Oxymoron, I know.

*let's get this party started*
 
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bcp

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My copy doesn't say "civil unrest" but is more specific:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. "


In Ex parte Milligan (1866), the Supreme Court held that the privilege of the writ could not be suspended while the civilian courts remained operational.
 
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Tomas

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popcorn.gif
 

Jayd1981

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I would say it is only a privilege if the people allow it to be. You mention it can be suspended during a state of "civil unrest", ironically if I were in the middle of a state of civil unrest then my firearm is the last thing I will give up. Myself and my firearms will protect me and my loved ones from any threat including my own government at that time.
 

devildoc5

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Sylvia I am not sure how you keep doing this (might be my small minuscule mental capacity) but you have managed yet again to confuse me.

You started off mentioning 2A and then talk about writ of habeas corpus.

WOHC has to do with being released from jail or prison or what have you not. I dont understand how this falls under 2A. 4A sure, but 2A?

I guess I am just unclear asto the relationship here.
 

Beretta92FSLady

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My copy doesn't say "civil unrest" but is more specific:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. "


In Ex parte Milligan (1866), the Supreme Court held that the privilege of the writ could not be suspended while the civilian courts remained operational.

Sorry I mean to say "rebellion or invasion." Rebellion is definitely "civil unrest."

Here is a more current ruling. The problem is, the Federal Government obviously does not recognize this ruling. How did Nixon put it,"[If the President of the United States does it, it is not illegal]." Welcome to the new America. I agree that the Supreme Court has ruled on this matter. The Federal Government has the power to do pretty much what it wants with impunity.

You could have used this case to also prove what a liberal Court would do to America. I know, it's a double edged sword, you want people to have rights, but you don't want terrorist to, right? Everything is wrought with complexity.

http://www.oyez.org/cases/2000-2009/2005/2005_05_184

Docket No.:
05-184

Question:

1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo Bay, Cuba?

2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution?

3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to invoke that review?
Conclusion:

A five-justice majority answered yes to each of these questions. The opinion, written by Justice Anthony Kennedy, stated that if the MCA is considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of the detainees. Justice David H. Souter concurred in the judgment. Chief Justice John G. Roberts and Justice Antonin Scalia filed separate dissenting opinions.
 
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Beretta92FSLady

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Sylvia I am not sure how you keep doing this (might be my small minuscule mental capacity) but you have managed yet again to confuse me.

You started off mentioning 2A and then talk about writ of habeas corpus.

WOHC has to do with being released from jail or prison or what have you not. I dont understand how this falls under 2A. 4A sure, but 2A?

I guess I am just unclear asto the relationship here.

Writ is the right to petition the court, whether you are a prisoner or not. The right of a prisoner is not The Writ Of Habeas Corpus, that is secondary. The core element of The Writ is "life, liberty, or property." People think that it is solely for prisoners and it is not. By petitioning the court you are exercising your right to life, liberty, or property.

The 4th Amendment is pretty much mute given the signing of the Patriot Act in February, which FWIU, still allows for a number of warrant-less powers by the Federal Government.

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

"....... nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
 
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Beretta92FSLady

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My copy doesn't say "civil unrest" but is more specific:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. "


In Ex parte Milligan (1866), the Supreme Court held that the privilege of the writ could not be suspended while the civilian courts remained operational.


This case says nothing about The Writ Of Habeas Corpus being unConstitutional. It says that such a suspension, through Marshal Law can not be imposed unless civil courts are not operating. Suspension Of Writ Of Habeas Corpus by the declaration of Marshal Law is Constitutional. By the recent court ruling above, it appears that the suspension can only occur under extreme circumstances.

Let me be more specific here: If you as an American citizen happen to be in America when the suspension of the Writ occurs you are temporarily no longer an American citizen, in a sense. By that, you are subject to military court.

"Facts of the Case:

Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil War; he had engaged in acts of disloyalty. Milligan sought release through habeas corpus from a federal court.
Question:

Does a civil court have jurisdiction over a military tribunal?
Conclusion:

Davis, speaking for the Court, held that trials of civilians by presidentially created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating."
 
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gogodawgs

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2nd amendment is a fundamental right, the writ of habeus corpus is not

The writ of habeas corpus is not a fundamental right, it did not exist prior to the establishment of a government body and is not granted by Providence.

The right to self defense (i.e. the right to keep and bear arms) is a fundamental right. It has existed since the damn of time, it is inherent in the makeup of homo sapiens and all other creatures on earth and was ingrained as instinct by the Creator of the Universe.

Justice Alito in his brilliant opinion for the court in McDonald v. Chicago codified the right as fundamental in the eyes of the court. Furthermore, the majority opinion extended the fundamental right to all bodies of government in the United States.

Below I have lifted some quotes from the majority opinion:

"The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty"

“so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,”

"The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights"

"Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government."

This is just a small part of the argument that the right is fundamental. Alito et al were fairly exhaustive in their argument. I know that it is 200+ pages of legalese but if you are up for the challenge, I suggest everyone read the decision, especially the majority opinion (and Justice Thomas concurring opinion is absolutely brilliant as well) it is one of the best rulings I have ever read. Incredibly researched and thorough.




 

Beretta92FSLady

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The writ of habeas corpus is not a fundamental right, it did not exist prior to the establishment of a government body and is not granted by Providence.

---No, it is an affirmation of fundamental rights.

[/QUOTE]
Justice Alito in his brilliant opinion for the court in McDonald v. Chicago codified the right as fundamental in the eyes of the court. Furthermore, the majority opinion extended the fundamental right to all bodies of government in the United States.

Below I have lifted some quotes from the majority opinion:

"The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty"

[/QUOTE]“so rooted in the traditions and conscience of our people as to be ranked as fundamental.”[/QUOTE]

----He is saying that is to be ranked as fundamental because of those two items, I disagree. That because those two items, tradition and conscience, they are therefor fundamental, nope. It extends beyond tradition or consensus. Hopefully he is using them as examples of why it is fundamental.

[/QUOTE]Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,”[/QUOTE]

----We are not Englishmen.

[/QUOTE]"The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights"

"Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government." [/QUOTE]

----But what about now, 2010? It was fundamental to the newly formed system of government, we know this. The problem is I read a lot of "was," past tense.

[/QUOTE]This is just a small part of the argument that the right is fundamental. Alito et al were fairly exhaustive in their argument. I know that it is 200+ pages of legalese but if you are up for the challenge, I suggest everyone read the decision, especially the majority opinion (and Justice Thomas concurring opinion is absolutely brilliant as well) it is one of the best rulings I have ever read. Incredibly researched and thorough.




[/QUOTE][/I][/QUOTE]

---Everyone should read it. I have read(e) snippets of the ruling from you, obviously out of context.


It is long. I have been off and on reading it the past little while. I have definitely read(e) the conclusion. I am not trying to be argumentative in this thread or in my response to you. An ideological split is not a mandate on deeming something Constitutionally a fundamental right.

I said at the beginning of this thread that there are fundamental rights, there are fundamental rights affirmed by the Constitution, but by that affirmation, from a Constitutional standpoint it seems that their "conclusion" is not specific enough to deem the 2nd Amendment as a fundamental right, since your "rights" can be suspended temporarily under Article I, which they did not reference in the ruling as far as I have read(e).

The problem is likely me I suppose. I see in the Constitution the ability of the Federal Government to suspend TWOHC, anything after that have become a privilege, regardless of the intent of the Constitution being an affirmation of fundamental rights. Rights can not be taken away, privileges are given and taken away. If there was a huge bump that the writers of the Constitution wrote in the Constitution, this is one of them. Just because I have this view, does not mean that I agree with it. I am sure there are plenty of people that see some valuable integrity of agreeing with your personal views, that just isn't always the case with me.
 
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sudden valley gunner

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The writ of habeas corpus is not a fundamental right, it did not exist prior to the establishment of a government body and is not granted by Providence.

The right to self defense (i.e. the right to keep and bear arms) is a fundamental right. It has existed since the damn of time, it is inherent in the makeup of homo sapiens and all other creatures on earth and was ingrained as instinct by the Creator of the Universe.

Justice Alito in his brilliant opinion for the court in McDonald v. Chicago codified the right as fundamental in the eyes of the court. Furthermore, the majority opinion extended the fundamental right to all bodies of government in the United States.

Below I have lifted some quotes from the majority opinion:

"The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty"

“so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,”

"The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights"


"Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government."

This is just a small part of the argument that the right is fundamental. Alito et al were fairly exhaustive in their argument. I know that it is 200+ pages of legalese but if you are up for the challenge, I suggest everyone read the decision, especially the majority opinion (and Justice Thomas concurring opinion is absolutely brilliant as well) it is one of the best rulings I have ever read. Incredibly researched and thorough.





Well written, and another side point who would "suspend" these rights (if that was possible, I don't believe it to be). When the constitution was written we the people comprise the "militia" or army, there were no standing military, the founding fathers being much against this. There also was no "organized" large police force like we have today. Maybe a town constable (usually volunteer, position) or a few sheriffs. When you think about it that way the Bill of Rights take on a more serious role in our lives.

Because it was up to us the general citizens to uphold and enforce laws, warrants, etc. And in this light it is our duty to resist and refuse up to the point of using our 2A rights against anyone who is unlawfull/unconstitutionally arresting or infringing upon our liberties. Story is a great case that deals not just with arrest but mentions our constitutional rights and fact we all have the right to resist oppression and injustice.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.



I should have gone to Starbucks with you guys last Saturday I don't know how to highlight in this new forum.
 
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sudden valley gunner

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Thanks GoGo,
Sorry Sylvia did mean to Hi-jack your discussion with my computer ignorance.

Another thing on your subject when you mentioned priveledges. Talking to Gray at the 2A Rally he had a very interesting take that priveledges are not necessarilly something that the Gov. can constitutionally take away. There was a lot to absorb and I wish I could have discussed that more with him, I liked what he was saying.
 

Beretta92FSLady

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Thanks GoGo,
Sorry Sylvia did mean to Hi-jack your discussion with my computer ignorance.

Another thing on your subject when you mentioned priveledges. Talking to Gray at the 2A Rally he had a very interesting take that priveledges are not necessarilly something that the Gov. can constitutionally take away. There was a lot to absorb and I wish I could have discussed that more with him, I liked what he was saying.

I do not know the context that you and Gray were having the discussion. I agree that in principle privileges/rights can not be taken away, but in application they can and are. The denial of privileges/rights by the Federal Government are enforced by the power of the Federal Government, meaning, they can deny you anything they want, pretty much with impunity by their interpretation of the Constitution in their favor, and the force they use to enforce their interpretation of what is and is not Constitutional.

Basically, what I am saying is the Federal Government is for the Federal Government, not for the people; somewhere along the way 'the people" were lost in the size of the Federal Government. I am thinking it happened the second the Constitution was signed, actually. The Constitution created a nation of "free men" in principle but it also created a nation that can and has become ruled by an elite class of Americans who use the Federal Government (application) to exercise power, and enriching themselves. I don't think that the writers of the Constitution conceived of the current size, and power of the Federal Government nearly 240 years ago.

Yes, there are Constitutional remedies for this, but they are mute compared to the size, and power of the Federal Government. Given average American complacency, and lack of critical thinking, no time in the near future will this rebalancing of power be pursued by the average citizen. We are to individualistic of a society. Sure we show up to the booth to vote, but there are only two bad options.

We should be spending way more money on education than we do in this country. We pay the price by having generations of kids that grow into adulthood, most of them unable to thnk critically. Heck, the average high school graduate reads at a seventh grade level at best. How the hell could we expect them to comprehend court ruling, or the Constitution.
 
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Metalhead47

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We should be spending way more money on education than we do in this country. We pay the price by having generations of kids that grow into adulthood, most of them unable to thnk critically. Heck, the average high school graduate reads at a seventh grade level at best. How the hell could we expect them to comprehend court ruling, or the Constitution.


It seems to me that it wasn't until the government, federal and state, STARTED spending on education, that education started going down the toilet. The founders were all utterly brilliant men, and the "rank and file" of the nation were above average too compared to anyone today, in their understanding and studying of law. You just said the Fed is too big & bloated and only for its self, and yet you think it's a good idea for that same entity to be educating (brainwashing) its future citizens?
 

Beretta92FSLady

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It seems to me that it wasn't until the government, federal and state, STARTED spending on education, that education started going down the toilet. The founders were all utterly brilliant men, and the "rank and file" of the nation were above average too compared to anyone today, in their understanding and studying of law. You just said the Fed is too big & bloated and only for its self, and yet you think it's a good idea for that same entity to be educating (brainwashing) its future citizens?

Nothing in my response said that the Federal Government should be educating our children. "Brainwashing" hardly, if they gave the kids enough of an education to constitute washing of the brain. The Federal Government is to big, and it is going to get bigger. I really hate to come off as a Debbie-downer, but seriously, things are going to get worse before they get better. And to top it off, we are going to be a Socialist country after all of it is over, guaranteed. We will be a civilian armed Socialist country though, if that makes anyone feel any better. To be honest with you, I hope that I am wrong about the Socialist part, but I doubt that I am--we are almost nearly totally Socialist already, it has been decades in the making.

Ten years we will be almost completely a Socialist system, twenty years China will be Capitalist, Communism will be a thing of their past. The thought of that turns my stomach, but

We will still have the Constitution in its entirety.

"Brilliant men," try optimistic. They had a lot of good ideas, through compromise, they came to write the Constitution.

The "rank and file" of the nation in the 1700's had about, at best, a 60% literacy rate--today, it is nearly 100%. The "rank and file" then didn't have access to the information that we are inundated with every day of our lives now. The access to good, bad, and ugly information is abundant now.
 

Metalhead47

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We should be spending way more money on education than we do in this country. We pay the price by having generations of kids that grow into adulthood, most of them unable to thnk critically. Heck, the average high school graduate reads at a seventh grade level at best. How the hell could we expect them to comprehend court ruling, or the Constitution.


That kind of implies you think the government should be educating our children. "We...in this country." Not "I" or "the state." :p What the educating departments are doing is exactly brainwashing, you admit that yourself. They don't teach our children anything really useful, then dictate to them WHAT (not HOW) to think.

Literacy and information do not necessarily equate to intelligence or education. A person can be illiterate and still be educated. I'll see if I can dig up the quote to which I'm referring but I doubt I'll be able to. Its by a contemporary of the Founders who was commenting on just how intelligent in matters of law the average colonist was at this time.

I do have to ask you though: If you think this country is so boned, and will get more boned in the future ("debbie downer" as you say), why bother? Why continue to engage in society? If you think it's hopeless, why havn't you run for the hills, maybe find a nice cave somewhere where the Feds will never find you, and at least try to live out your life with some peace & liberty? Seems to me like you're displaying some of the same apathy & complacence you accuse others of.
 

Beretta92FSLady

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I do have to ask you though: If you think this country is so boned, and will get more boned in the future ("debbie downer" as you say), why bother? Why continue to engage in society? If you think it's hopeless, why havn't you run for the hills, maybe find a nice cave somewhere where the Feds will never find you, and at least try to live out your life with some peace & liberty? Seems to me like you're displaying some of the same apathy & complacence you accuse others of.


I like engaging in futile acts :p

I never said it is hopeless, I am just saying certain things that I observe are inevitable, unfortunately. Yea, you might think I am implying hopelessness, but I am not. We will make lemonade out of lemons, promise :banana:

Funny you mention that, we are saving up to move to the middle of nowhere next year.

I am not accusing anyone of complacency, just observing it. I do not consider my self complacent, I engage in my own person activism and debate...with an open mind to opposing views mind you.

Apathetic, are you serious. Do you think I come on here and engage in all of these discussion with a majority of people that do not agree because I am apathetic. I must be the most engaged apathetic person you ever met, right?

When one of you say sh*t is going to hit the fan, people concur, when I say it I am pessimistic--that makes sense.
 
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