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Quiz Question on Second Amendment:

cabse5

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A lot of people, lawyers and judges included, make the mistake of falsely imputing modern understandings of words onto the words of laws written hundreds of years ago. That is the major flaw in your analysis. You can't just read the Federalist Papers and the Constitution and act like you've got it all figured out. The world is a very different place now than it was back when these document were written. You need to learn the history.
Ah. A believer in a living constitution. A constitution that goes with the modern times. I bet you think judges should be able to make laws with their precedents, too.
 

American

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I'm not playing semantics. If read as a proper noun, the 2A would not apply in Washington D.C. If read as a common noun it would.
Washington DC is not a state. Anyway, I'm pretty certain the mean one of the states in general. Any state actually.
 

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In order to understand it in "historical context" one must have studied the "historical context," as opposed to quoting from sources who are trying to place a modern interpretation on the social paradigm of that era.

Now, please provide specific "historical context" citations for that "martial term of art" interpretation you are trying to impose on "keep and bear arms."

Then cite specific "historical context" supporting the position that the "prefatory clause informs the whole amendment."

Aside from the fact that the SCOTUS Heller v. D.C. ruling has clarified it (apparently in a way you prefer not to accept), in MY study of the period I don't recall arguments tying the right to a militia purpose and no other purpose but that. I would be VERY interested in seeing and then researching exactly what "historical context" materials you think support your viewpoint.

PLEASE, "enlighten" me. :roll:
If the Founders meant to protect a right from federal infringement, they would have interpreted it in the broadest possible way.................meaning a right of each citizen to keep and bear arms.
 

Guy Incognito

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In order to understand it in "historical context" one must have studied the "historical context," as opposed to quoting from sources who are trying to place a modern interpretation on the social paradigm of that era.

Now, please provide specific "historical context" citations for that "martial term of art" interpretation you are trying to impose on "keep and bear arms."

Then cite specific "historical context" supporting the position that the "prefatory clause informs the whole amendment."

Aside from the fact that the SCOTUS Heller v. D.C. ruling has clarified it (apparently in a way you prefer not to accept), in MY study of the period I don't recall arguments tying the right to a militia purpose and no other purpose but that. I would be VERY interested in seeing and then researching exactly what "historical context" materials you think support your viewpoint.

PLEASE, "enlighten" me. :roll:
Well, I can tell pretty clearly from the tone of your post that you've shut your mind to learning anything already. But on the off chance that you're interested in getting an education on the subject, all your questions are answered in this article, which I have already cited in this thread:

http://www.uclalawreview.org/pdf/56-5-2.pdf
 

Guy Incognito

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If the Founders meant to protect a right from federal infringement, they would have interpreted it in the broadest possible way.................meaning a right of each citizen to keep and bear arms.
But you don't actually understand what "keep and bear arms" meant to the framers.
 

TurtleDude

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Well, I can tell pretty clearly from the tone of your post that you've shut your mind to learning anything already. But on the off chance that you're interested in getting an education on the subject, all your questions are answered in this article, which I have already cited in this thread:

http://www.uclalawreview.org/pdf/56-5-2.pdf
Saul Cornell again? the JOYCE FOUNDATION paid whore who doesn't have a law degree and dishonestly jumps from state powers to federal powers and pretends one is the same as the other

Cornell is rated right next to Carl BOGUS when it comes to second amendment scholarship
 

Guy Incognito

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Ah. A believer in a living constitution. A constitution that goes with the modern times. I bet you think judges should be able to make laws with their precedents, too.
I don't think you understand what I wrote.
 

Captain Adverse

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Well, I can tell pretty clearly from the tone of your post that you've shut your mind to learning anything already. But on the off chance that you're interested in getting an education on the subject, all your questions are answered in this article, which I have already cited in this thread:

http://www.uclalawreview.org/pdf/56-5-2.pdf
Actually I have a Master's degree with my major being the study of this very period; 1760 - 1800 with a particular focus on this Amendment. My mind is not "closed," it is "educated" on the topic.

However, I will read the citation and research it.
 

TurtleDude

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I don't think you understand what I wrote.
your posts demonstrate you clearly don't understand the topics you post about when it comes to second amendment scholarship
 

TurtleDude

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Actually I have a Master's degree with my major being the study of this very period; 1760 - 1800 with a particular focus on this Amendment. My mind is not "closed," it is "educated" on the topic.

However, I will read the citation and research it.
Cornell jumps from state police powers to federal police powers and tries to pretend one is the other. he talks about "original intent" but then adopts the FDR expansion of the CC which was not only contrary to original intent but contrary to 100 years of precedent.
 

ttwtt78640

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A lot of people, lawyers and judges included, make the mistake of falsely imputing modern understandings of words onto the words of laws written hundreds of years ago. That is the major flaw in your analysis. You can't just read the Federalist Papers and the Constitution and act like you've got it all figured out. The world is a very different place now than it was back when these document were written. You need to learn the history.
Nonsense - the meaning of "right of the people" has not changed at all. Those (ancient?) folks knew quite well that there is a difference between the militia and the people. Do you have any other historical surprises about which other people might have been exempted from the bill of rights?
 

ecofarm

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But you don't actually understand what "keep and bear arms" meant to the framers.
It meant arms of a militia (infantry), they were specific. These are deemed to serve self defense (personal responsibility) as opposed to national defense (state responsibility).
 

Guy Incognito

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Actually I have a Master's degree with my major being the study of this very period; 1760 - 1800 with a particular focus on this Amendment. My mind is not "closed," it is "educated" on the topic.

However, I will read the citation and research it.
Well, I apologize for misinterpreting. But for future reference, you appeared to be sarcastic with all the bolding and so forth in your post.

I look forward to hearing your educated thoughts on the subject.
 

Guy Incognito

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It meant arms of a militia (infantry), they were specific. These are deemed to serve self defense (personal responsibility) as opposed to national defense (state responsibility).
I don't disagree with all of that, although I'd say that the second amendment relates to a state militia as opposed to a federal standing army.
 

ecofarm

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I don't disagree with all of that, although I'd say that the second amendment relates to a state militia as opposed to a federal standing army.
The word militia serves to specify arms not individuals.
 

Guy Incognito

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Nonsense - the meaning of "right of the people" has not changed at all. Those (ancient?) folks knew quite well that there is a difference between the militia and the people. Do you have any other historical surprises about which other people might have been exempted from the bill of rights?
There are lots of interesting differences between the historical meaning of the bill of rights and the modern gloss that has been put on them. For example, the first amendment only protected political speech. No founder would have ever dreamed that it would be use to protect something like blasphemy.
 

TurtleDude

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There are lots of interesting differences between the historical meaning of the bill of rights and the modern gloss that has been put on them. For example, the first amendment only protected political speech. No founder would have ever dreamed that it would be use to protect something like blasphemy.
what right were the founders seeking to recognize with the second amendment as set forth by Cruikshank?
 

Ancient Herald

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There are lots of interesting differences between the historical meaning of the bill of rights and the modern gloss that has been put on them. For example, the first amendment only protected political speech. No founder would have ever dreamed that it would be use to protect something like blasphemy.
Excuse me?

Can you cite anything in the Federalist papers that say that?

or anything at all?

methinks you're just making crap up.
 

Captain Adverse

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Well, I apologize for misinterpreting. But for future reference, you appeared to be sarcastic with all the bolding and so forth in your post. I look forward to hearing your educated thoughts on the subject.
Okay I’ve read it thoroughly and here is my understanding of what he is discussing in his article.

First, if you read the article his primary effort is geared toward disputing the methodology used by Scalia in his majority opinion, arguing the weaknesses of his justifications for interpreting the right as an individual one in the Heller decision.

No Constitutional scholar would disagree that some of the methodology used had some glaring weaknesses, because Scalia was not only trying to argue original intent, he was trying to overcome prior SCOTUS rulings on gun control issues without negating stare decisis.

However, the author also points out that even at the time of the ratification debates there were at least three different methods advocated about how to interpret the language used in Constitutional construction. Which only goes to show that even then there was disagreement about how to read the clauses between the very people who were writing it.

But let’s say for the sake of argument that we accept one of those methods, the one advocating that the preamble defines the follow-on clause. It still does not equate (as the author hopes to imply) to an interpretation that the right is tied to a militia requirement, and Scalia got it wrong.

That's because the author is either unaware of, or ignoring the issue of the social paradigm existing at the time of the ratification debates, and how it can shift over time.

To save space I’d like to refer you to a post on this in a different thread:

Well, your disagreement notwithstanding....
Then I am willing to respond to your questions. Okay?
 
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TurtleDude

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Okay I’ve read it thoroughly and here is my understanding of what he is discussing in his article.

First, if you read the article his primary effort is geared toward disputing the methodology used by Scalia in his majority opinion, arguing the weaknesses of his justifications for interpreting the right as an individual one in the Heller decision.

No Constitutional scholar would disagree that some of the methodology used had some glaring weaknesses, because Scalia was not only trying to argue original intent, he was trying to overcome prior SCOTUS rulings on gun control issues without negating stare decisis.

However, the author also points out that even at the time of the ratification debates there were at least three different methods advocated about how to interpret the language used in Constitutional construction. Which only goes to show that even then there was disagreement about how to read the clauses between the very people who were writing it.

But let’s say for the sake of argument that we accept one of those methods, the one advocating that the preamble defines the follow-on clause. It still does not equate (as the author hopes to imply) to an interpretation that the right is tied to a militia requirement, and Scalia got it wrong.

That's because the author is either unaware of, or ignoring the issue of the social paradigm existing at the time of the ratification debates, and how it can shift over time.

To save space I’d like to refer you to a post on this in a different thread:



Then I am willing to respond to your questions. Okay?
its amusing how Cornell tries to dishonestly intermingle state powers that both existed prior to the constitution and over which the founders had not authority but which the states delegated to the new government. and how he studiously ignores the "Discovery" in 1934 of a federal gun control power and how the commerce clause was mutated during the same period of time contrary to 100 years of precedent
 

LagerHead

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You know, I never said anything about being brilliant. The fact that I take the time to read up on the subject doesn't make me brilliant, it just makes me not ignorant.

This is not my own argument, I have read the writings of other, more learned historians and scholars of legal history. It certainly doesn't require any particular brilliance to understand this issue.

There are really two critical points:

1. The prefatory clause informs the entire amendment.
2. The phrase "keep and bear arms" was an eighteenth century era term of art referring to martial service, and similar to other legal phrases like "hue and cry" that had a specific legal meaning.
Let me ask you this: Did the phrase "the people" have a different meaning in the 18th century? No? Then how do you explain how the phrase, "the right of the people to keep and bear arms shall not be infringed" refers to the government? You're wrong. And here are a couple of ways. First, you're wrong linguistically.

The Unabridged Second Amendment

When understood in historical context, it is all pretty clear what the framers understood the sentence to mean, and the modern tendency to interpret it more broadly is an obviously anachronistic misinterpretation.
Ok, so your contention is that the framers, who had just fought a war that was specifically about tyranny against individual freedoms, specifically put in their founding document an amendment that limited individual freedoms - one that the English had attempted to use to put down the rebellion in the first place? That is your position? This is the argument you're going with?

And you're going to ignore the fact that entire Constitution is a limitation on government powers and attempt to forward the argument that the 2nd Amendment is uniquely a limitation on the rights of the people regardless of the fact that it specifically states that it's the "right of the people" that "shall not be infringed"? This is what you're going with?

But gun people are so emotionally invested that they can't be objective:shrug:
Pretty funny. You're going to ignore specific wording, linguistic context, the history leading up to and following the revolution, then generalize an entire group of people and say they can't be objective. Are you even listening to yourself?
 
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