Why do you "need" an AR 15? [W243, 2001]

[Tennyson]

Re: Why do you "need" an AR 15? [W243]

Article I, Section 8.... organization and discipline of the militia plus the necessary and proper clause.

It's a simple hurdle to overcome, Turtle... all you've got to do is explain why the prefatory exists if the right to keep and bear arms has the same meaning with it as it does without it... and do so in a way that writes it off as so many "wasted words" you choose to ignore.

Article I is irrelevant.

The operative clause means the same without the prefatory clause. The prefatory clause exists because it is a duel purpose amendment.

 

[Cordelier]

Re: Why do you "need" an AR 15? [W243]

All of the amendments are declaratory and restrictive clauses. My point is your position is that the first ten amendments are rights to and conferred. Neither are correct.

My point is that the rights existed before this country was ever founded. They're our birthright... not as Americans, but as members of the human race. All the Bill of Rights did was to list some of them, give them form, and acknowledge that the list wasn't exhaustive.

 

[Cordelier]

Re: Why do you "need" an AR 15? [W243]

Article I is irrelevant.

The operative clause means the same without the prefatory clause. The prefatory clause exists because it is a duel purpose amendment.

Well, that kinda bit Alexander Hamilton in the ass, didn't it?

 

[Rucker61]

Re: Why do you "need" an AR 15? [W243]

Article I, Section 8.... organization and discipline of the militia plus the necessary and proper clause.

It's a simple hurdle to overcome, Turtle... all you've got to do is explain why the prefatory exists if the right to keep and bear arms has the same meaning with it as it does without it... and do so in a way that writes it off as so many "wasted words" you choose to ignore.

When Madison wrote the 2nd there was no prefatory clause. Is there any record of discussion in the Constitutional conventions of adding that clause to limit the scope of the restrictions on the federal government?

 

[jaeger19]

Re: Why do you "need" an AR 15? [W243]

So please explain to me why this isn't indicative of an individual right to privacy.

It is...

Your argument is that first the supreme court has to "conceive out of thin air" an unenumerated right...

It doesn't. It only has to decide whether the government has the power to do a certain action. its how our constitution works. it does not grant rights.. it protects all those unenumerated rights by limiting the power of government. Its why they put in the 9th and 10 th amendments in the bill of rights to be SURE to explain that the bill of rights wasn;t the only rights that people have.

Cripes man. they spelled it out for you.. why can't you understand it?

 

[Cordelier]

Re: Why do you "need" an AR 15? [W243]

When Madison wrote the 2nd there was no prefatory clause. Is there any record of discussion in the Constitutional conventions of adding that clause to limit the scope of the restrictions on the federal government?

Not that I'm aware of... but that doesn't mean the discussions didn't occur. That's my problem with putting too much emphasis on original intent - it always seems to boil down to reading tea leaves. You can find one or two letters written by one of the Founders and all of a sudden, that gets blown up in representing the views of them all. That's not the way things work in real life - not then and not today. All of the Founders were strong-willed, intelligent people - they all had their own point of view, and so we're never going to get a complete picture of what they all were thinking at each point in time. If tomorrow some farmer in South Dakota finds a completely authentic letter from James Madison that turns everything we think we know about his and his colleague's intent on it's head, are we going to overturn 200+ years of judicial precedent because of that?

Instead of trying to read tea leaves, what I try to do is to take a textualist approach and put more emphasis on what they actually wrote... there's a reason why the prefatory clause is in there and that reason has to be to put some kind of check on the individual right to keep and bear arms. After all, if they didn't want such a check to be in there, then they would have just stated the right and left it at that, would they not? My own theory is that, having just gone through Shays rebellion... where a pro-government militia quelled an anti-government militia, the Founders wanted to give Congress leeway to encourage the former and bar the latter.

 

[Rucker61]

Re: Why do you "need" an AR 15? [W243]

Not that I'm aware of... but that doesn't mean the discussions didn't occur. That's my problem with putting too much emphasis on original intent - it always seems to boil down to reading tea leaves. You can find one or two letters written by one of the Founders and all of a sudden, that gets blown up in representing the views of them all. That's not the way things work in real life - not then and not today. All of the Founders were strong-willed, intelligent people - they all had their own point of view, and so we're never going to get a complete picture of what they all were thinking at each point in time. If tomorrow some farmer in South Dakota finds a completely authentic letter from James Madison that turns everything we think we know about his and his colleague's intent on it's head, are we going to overturn 200+ years of judicial precedent because of that?

Instead of trying to read tea leaves, what I try to do is to take a textualist approach and put more emphasis on what they actually wrote... there's a reason why the prefatory clause is in there and that reason has to be to put some kind of check on the individual right to keep and bear arms. After all, if they didn't want such a check to be in there, then they would have just stated the right and left it at that, would they not? My own theory is that, having just gone through Shays rebellion... where a pro-government militia quelled an anti-government militia, the Founders wanted to give Congress leeway to encourage the former and bar the latter.

The problem is that you are the one reading tea leaves. Madison wrote the 2nd without a prefatory clause. Article 1, Section 8 still gives the government complete control over the arms of the militia, so what does the 2nd protect? Even if 2A protections are limited to militia participation, if Congress says that the militia can only be armed with swords and halberds, that's what the militia is limited to. Whose rights does "shall not be infringed" apply to? Not the militia - the militia has no uninfringeable right to arms at all.

 

[Oozlefinch]

Re: Why do you "need" an AR 15? [W243]

So please explain to me why this isn't indicative of an individual right to privacy.

Well, once again let's look and see what the Constitution says about the matter:

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.

OK, so this is the Amendment that is most commonly referred to when people talk about their "Right of Privacy". And notice, there really is not a damned thing in there about Privacy, is there?

Nope, technically what this "Right" refers to is what kind of evidence can be brought against you in a court of law. This for example is why we have a Miranda Law. And why LEO goes to such an extent to get your permission to conduct a search, or gets a warrant.

But probably cause is all that is needed, that is not considered to be "unreasonable".

But as you can see, there is really no "Right of Privacy". Unless maybe you are talking about the 4rf Amendment:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

So yea, you are free from having your privacy being invaded by my suddenly knocking on your door and demanding a place to sleep.

My "open range" analogy was metaphorical, Oozlefinch.

To me, the Ninth Amendment is the constitution's acknowledgement that not all of the legal landscape has been charted - there are still rights out there to be discovered and exercised. The Constitution is a living document, and it is the Ninth that gives it the breath of life.

You see, here is the thing. When it comes to the Constitution, I am more or less like Drax the Destroyer. When you are talking about things like Constitutional Law, there is no room for metaphors. Everything has to be literal, cut and dry.

In other words, your metaphors fail because you are trying to twist the Constitution to fit your desire. But that is not how it works, that is not how any of it works.

 

[TurtleDude]

Re: Why do you "need" an AR 15? [W243]

I'm not really interested in your fantasy life. I'm here to debate.

you're not doing much of a job then given you clearly don't understand the issue

 

[TurtleDude]

Re: Why do you "need" an AR 15? [W243]

Article I, Section 8.... organization and discipline of the militia plus the necessary and proper clause.

It's a simple hurdle to overcome, Turtle... all you've got to do is explain why the prefatory exists if the right to keep and bear arms has the same meaning with it as it does without it... and do so in a way that writes it off as so many "wasted words" you choose to ignore.

you're wrong again, you have to find me some evidence the federal government was intended to have any power in this area before I have to prove the second was intended to stop it.

 

[Tennyson]

Re: Why do you "need" an AR 15? [W243]

My point is that the rights existed before this country was ever founded. They're our birthright... not as Americans, but as members of the human race. All the Bill of Rights did was to list some of them, give them form, and acknowledge that the list wasn't exhaustive.

The first ten amendments did nothing other than restrict the federal government from meddling in unalienable rights.

 

[Tennyson]

Re: Why do you "need" an AR 15? [W243]

Well, that kinda bit Alexander Hamilton in the ass, didn't it?

What does Hamilton have to do with the Second Amendment?

 

[Rucker61]

Re: Why do you "need" an AR 15? [W243]

What does Hamilton have to do with the Second Amendment?

Good question. He was shot by Aaron Burr in 1804. Burr was a US Senator from 1791 to 1797, and was therefore excluded from militia service. While serving as VP in 1804 he was over the age of 45 and therefore exempted from militia service. Under some theories he did not have the right to own a firearm. Obviously he did, so the Second Amendment has nothing to do with Hamilton's death at all.

 

[Oozlefinch]

Re: Why do you "need" an AR 15? [W243]

What does Hamilton have to do with the Second Amendment?

Wow, really? What does Alexander Hamilton have to do with the Second Amendment?

Well, maybe you would understand if you knew who Publius was. That was the name Mr. Hamilton used when he wrote The Federalist Paper #29. That document written in 1788 is the genesis of the Second Amendment.

One of my favorite quotes from that document in favor of an armed citizenry is what he said about those who opposed the Constitution...

... a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes "Gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.

Not unlike the situation today, come to think of it.

But the main bulk of Federalist #29:

But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.

https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-29

I am sorry, but I am finding it very hard to take a great many in this discussion seriously at all. The fact that not only did you not know what Mr. Hamilton had to do with the 2nd Amendment does not puzzle me, so much as you apparently did not even bother to see what connection there might have been I find rather sloppy. You were pretty much told exactly what to look for, and did not even bother to do a quick Google search.

LMGTFY

 

[Tennyson]

Re: Why do you "need" an AR 15? [W243]

Wow, really? What does Alexander Hamilton have to do with the Second Amendment?

Well, maybe you would understand if you knew who Publius was. That was the name Mr. Hamilton used when he wrote The Federalist Paper #29. That document written in 1788 is the genesis of the Second Amendment.

One of my favorite quotes from that document in favor of an armed citizenry is what he said about those who opposed the Constitution...



Not unlike the situation today, come to think of it.

But the main bulk of Federalist #29:



https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-29

I am sorry, but I am finding it very hard to take a great many in this discussion seriously at all. The fact that not only did you not know what Mr. Hamilton had to do with the 2nd Amendment does not puzzle me, so much as you apparently did not even bother to see what connection there might have been I find rather sloppy. You were pretty much told exactly what to look for, and did not even bother to do a quick Google search.

LMGTFY

Federalist No. 29 was published on January 10, 1788; it was written to New York. It regarded the federal government’s control of the militia under Article I, not a militia of a state, which is the Second Amendment.

The First Congress met on September 11, 1789, and Hamilton was Treasury Secretary from September 11, 1789 to January 31, 1795. He was not involved in the first ten amendments, nor was any of his essays involved in the Second Amendment other than a reason for “a Militia” of individually armed citizens of the state to protect against tyranny.

 

[danielpalos]

Re: Why do you "need" an AR 15? [W243]

I want an AR so I have a Good Excuse to Muster and become Well Regulated!

 

[TurtleDude]

Re: Why do you "need" an AR 15? [W243]

I want an AR so I have a Good Excuse to Muster and become Well Regulated!

Metamucil will be better for that

 

[danielpalos]

Re: Why do you "need" an AR 15? [W243]

Metamucil will be better for that

It won't help me, present Arms, better.

 

[Cordelier]

Re: Why do you "need" an AR 15? [W243]

It is...

Your argument is that first the supreme court has to "conceive out of thin air" an unenumerated right...

It doesn't. It only has to decide whether the government has the power to do a certain action. its how our constitution works. it does not grant rights.. it protects all those unenumerated rights by limiting the power of government. Its why they put in the 9th and 10 th amendments in the bill of rights to be SURE to explain that the bill of rights wasn;t the only rights that people have.

Cripes man. they spelled it out for you.. why can't you understand it?

Let's review how things work in practice.

A state passes a law - which it is entitled to do under the terms of the 10th Amendment. An individual files a lawsuit against the state challenging that law as an unconstitutional infringement of a right they claim exists, but is not enumerated within the Constitution. For the courts to find in favor of the plaintiff, do they or do they not have to issue an opinion which gives validity to their claim?

 

[Oozlefinch]

Re: Why do you "need" an AR 15? [W243]

Let's review how things work in practice.

A state passes a law - which it is entitled to do under the terms of the 10th Amendment. An individual files a lawsuit against the state challenging that law as an unconstitutional infringement of a right they claim exists, but is not enumerated within the Constitution. For the courts to find in favor of the plaintiff, do they or do they not have to issue an opinion which gives validity to their claim?

No. The law can also be thrown out on various technical grounds.

Separation of Federal and State rights, conflict with a previous statute, language that is to vague or so specific it is shown to be unfairly targeted.

There are thousands of reasons a law can be struck down, having nothing to do with the validity of the claim itself.

And what any court but the SCOTUS itself decides is really not Constitutional itself. That is the reason why we have a Supreme Court in the first place. And for a State Law, it may first be passed along to the State Supreme Court for decision first.

You keep trying to over-simplify much more complex issues.

 

[danielpalos]

Re: Why do you "need" an AR 15? [W243]

Let's review how things work in practice.

A state passes a law - which it is entitled to do under the terms of the 10th Amendment. An individual files a lawsuit against the state challenging that law as an unconstitutional infringement of a right they claim exists, but is not enumerated within the Constitution. For the courts to find in favor of the plaintiff, do they or do they not have to issue an opinion which gives validity to their claim?

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

What is a reasonable use of the police power?

Mustering the militia should Always be more effective.

 

[Tennyson]

Re: Why do you "need" an AR 15? [W243]

Let's review how things work in practice.

A state passes a law - which it is entitled to do under the terms of the 10th Amendment. An individual files a lawsuit against the state challenging that law as an unconstitutional infringement of a right they claim exists, but is not enumerated within the Constitution. For the courts to find in favor of the plaintiff, do they or do they not have to issue an opinion which gives validity to their claim?

The court would have to create a right that did not exist, but first, the court needs to have jurisdiction, which there is no constitutional basis.

 

[Cordelier]

Re: Why do you "need" an AR 15? [W243]

The problem is that you are the one reading tea leaves. Madison wrote the 2nd without a prefatory clause. Article 1, Section 8 still gives the government complete control over the arms of the militia, so what does the 2nd protect? Even if 2A protections are limited to militia participation, if Congress says that the militia can only be armed with swords and halberds, that's what the militia is limited to. Whose rights does "shall not be infringed" apply to? Not the militia - the militia has no uninfringeable right to arms at all.

I'd say that such a law would be beyond the scope of Congressional power... not only would it be in violation of the 2nd Amendment, but it would also run counter to Article I, Section 8's "necessary and proper" clause. The militia and the people are one and the same... if you ban all firearms, then that is obviously an infringement on the right to keep and bear arms. If you restrict the sale of new weapons - as we currently do for full-auto rifles - then people still have the right to keep and bear arms. The right itself is not infringed, even though an individual's right to possess a new full-auto rifle obviously is. Note that the Second Amendment doesn't give an individual the right, as Justice Scalia stated in Heller, "...to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

 

[Cordelier]

Re: Why do you "need" an AR 15? [W243]

You see, here is the thing. When it comes to the Constitution, I am more or less like Drax the Destroyer. When you are talking about things like Constitutional Law, there is no room for metaphors. Everything has to be literal, cut and dry.

In other words, your metaphors fail because you are trying to twist the Constitution to fit your desire. But that is not how it works, that is not how any of it works.

*LOL* You're like Drax the Destroyer??

Let me get this straight... similes you get, but metaphors escape you? You do realize that, conceptually, they're pretty close, right?

 

[Cordelier]

Re: Why do you "need" an AR 15? [W243]

you're wrong again, you have to find me some evidence the federal government was intended to have any power in this area before I have to prove the second was intended to stop it.

Well, obviously, if you choose to conveniently ignore the prefatory clause, then the Federal Government doesn't have any role whatsoever. But you can't ignore it, because it's there and so Congress has an important government interest in the matter. The Constitution doesn't have "wasted words".