"Hawke" wrote in message
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"Ed Huntress" wrote in message
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"Hawke" wrote in message
...




http://www.scotusblog.com/wp/wp-cont...icus_texas.pdf

The states that oppose the individual rights (6 states joined it)
had
already filed a brief, available he




http://www.scotusblog.com/wp/wp-cont...cus_states.pdf

Again, the overwhelming number of organizations, states, and so on
are
filing on behalf of the individual right:


When you hear what the side advocating for the amendment not being
an
individual right it makes you wonder how they got even six states to
go
for
it. The legal and historical evidence is all on the side of it being
an
individual right so you really have to do some intellectual
contortions
to
take the other side.

No, it's not. Most of the legal "evidence" is on the side of it being
a
collective right. The historical "evidence" tells us that the FFs
generally
believed in an individual right. It does NOT tell you that they were
addressing that issue with the 2nd. In fact, the case is stronger that
the
2nd was all about militias.

The question is whether the presumption on which the 2nd is based
included
an individual right -- a pre-existing right that precedes the
Constitution.
That's the main battleground in the Heller case.

It's beginning to look like the individual right
position is finally going to be accepted in the law.

Maybe. It's still a tossup. The Supreme Court will have to reach into
the
"penumbras and emanations" to find for the individual right. That's
the
approach that conservative jurists have scoffed at for four or five
decades
now. If they reach into that Pandora's box to find for an individual
right,
they'll have a hell of a time ever overturning Roe v. Wade, for
example,
because that's what the Roe decision was based on, too.

It's not a simple situation. From all angles, this one is very
complex,
with
numerous potential unintended consequences.

It's about time. It's
been well known for decades that the position that the amendment
only
referred to militias was completely bogus.

Nonsense. No one "knows" it to this day.

Read the petitioner's brief, Hawke. Then read a couple of the amici
for
the
petitioner. Those are the arguments on which most federal precedent
concerning the 2nd are based.

--
Ed Huntress

Once again I'm saying that notwithstanding legal arguments this is
ultimately a simple case. Does a right exist or not. Virtually all the
beliefs held by ordinary Americans for most of the country's history
were
the same. The reason for the second amendment and the meaning of it
were
not
contested. It meant the people had the right to be armed and the state
was
prohibited by the constitution, of all things, from taking them away
without
a damned good reason.

I have no patience for an extended discussion about this now, but I'll
hit
the high points. First, on this one: you have it sort of upside-down. The
2nd was a specific response to the anti-federalists who had expressed a
fear
that the federal government, under Article I, section 8, would preclude
the
states from arming their own militias and would therefore nationalize the
militia itself, or, worse, establish a standing, federal army. It was
this
fear that the 2nd specifically addresses.

Now, does it include a presumption of a pre-existing individual right?
That's one of the arguable points. If you check the original debates in
Congress over the Bill of Rights, you'll find NO MENTION whatever of any
other purpose for the 2nd Amendment except the right of the states to arm
and maintain their own militias.

As for the wording of the various state constitutions and the
recommendations that were submitted to Congress for inclusion in the Bill
of
Rights, note that those other things were REJECTED and EXCLUDED from the
final draft, the one that was ratified and the text of which now makes up
the 2nd Amendment.

That's a problem. And that's what the last few decades of academic study
and
legal theorizing are trying to overcome, with this specific Supreme Court
case.

I'm sure if you asked Teddy Roosevelt if the 2nd
amendment gave the citizen the right to arms and not solely militias he
would have given you a resounding affirmation.

Teddy Roosevelt was not one of the founding fathers, anymore than Bill
Clinton was. d8-)

It is only in modern times
that the idea that the amendment was all about militias, when
coincidentally, by then they were a thing of the past.

Take a look at the citations in the petitioner's brief. You'll find that
your position on this, too is incorrect.

But this question
isn't a new one or exclusively and American one. In Machiavelli's
"Prince"
he discusses an armed populace and a disarmed one.

Machiavelli didn't get to vote on ratification of the Bill of Rights.
d8-)

The question has been
around for centuries and when the signers of the constitution wrote the
2nd
amendment there was no doubt in their minds what they intended.

From the history, there is little doubt that the founders believed in an
individual right. Whether they incorporated that belief in the 2nd
Amendment, or if it actually is what it appears to be from the historical
record, which is a response to the demand by the anti-federalists for
protection against federal assumption of militia powers, has dozens of
historians and constitutional scholars at loggerheads, as we speak.

To
specifically prevent the government from disarming the ordinary citizen
whether for his own good, or to impose a tyranny. Either way the
meaning
was
crystal clear and only today is there any question about what it was
meant
to do. Legal arguing is a completely different kettle of fish and is
mainly
superfluous.

You're still a good 500 pages behind where you need to be to understand
the
nature of the argument. This isn't a college history quiz, it's a complex
legal issue.


That's not the way I'm arguing it. It is the way you are and how the
petitioners in the legal action are. But to me it's like priests arguing
how
many angels can fit on the head of a pin. It's irrelevant. Now, if I
wanted
I could make a strictly legal argument for either side using legal
reasoning
and precedent but that's a joke in this case. As was pointed out already,
breathing wasn't considered anything to be protected by the constitution
but
keeping arms was and for one reason really. Because the country had just
fought a war and only having arms allowed them to win. At the time having
firearms wasn't a legal issue. Everyone who wanted them had them and the
only idea of taking them away came from a foreign tyrant. The only fear
was
that a local tyrant might try to do the same so it was codified
permanently
in the constitution. This issue about militias was a side issue. Every
male
of age was a militiaman, they supplied their own weapons. It's obvious
that
aside from the militia duty everyone was also entitled to arms for the
other
reasons people had them; for self defense, hunting, and fun. To the people
living when the constitution was written it would have been unthinkable
that
they didn't have a god given right to arms to defend themselves with. This
was universally accepted. To them the right to arms was an individual one.
It always was. It remained this way for a hundred and fifty years, at
least.
If the court rules it's an individual right all it will do is make things
like they were in the past, and the way it was meant to be. Does that mean
the supreme court and it's opinions has anything to do with truth,
reality,
justice, or what's right. You know the answer. The right is an individual
one regardless of what this particular 9 people have to say. The only
difference is that in the past the court never would have taken a case
like
this because it was self evident to earlier courts that an individual
having
arms is an obvious extension of the natural right of self defense, and who
could argue against that?

Regardless of your argument, what is your basis for claiming that these
things were ones that the 2nd Amendment was intended to address? That's the
first question. If the right to keep and bear arms for personal defense,
etc. was so universally accepted, have you considered that they didn't even
bother to list it among the rights the federal government would not
transgress? They didn't say anything about your right to marry and have
children or not, at your discretion, either. Nor did they say anything about
your right to privacy. Yet, it took a Supreme Court decision (Griswold v.
Connecticut) to decide that you and your wife have a right to the use of
contraceptives, as a private decision for you alone to make. The state of
Connecticut at that time, in the 1960s, said you did not.

This could go on and on and I really don't want to debate the 2nd. I happen
to believe that the legal and historical arguments favor the individual
right, anyway. But you're making some very incorrect assumptions about the
legal situation regarding the 2nd and you're attributing contrary court
decisions to ill intent of some kind on the part of the courts that have
decided against the individual right. You say the argument that the 2nd is
all about militias is "bogus," but, if you tried, you couldn't find a single
word in the original debates about anything OTHER THAN militias. That's all
they talked about in the Congressional debates regarding the 2nd.

But the Constitution is a legal document, and this is a legal case; a very
complex one, at that. To say it's "simple," or to say you know what's
"right," tells us that you haven't given objective thought to the counter
arguments made in the many cases in which the courts have decided that the
right is a collective one. You may feel that those are weaker arguments -- I
do -- but to say they're "bogus" is foolish.

What you think is "right," in historical terms, doesn't explain why all of
the history directly leading to the 2nd itself points to it being the answer
to a specific demand made by the anti-federalists, that the federal
government be precluded from assuming control over the state militias by
disarming them, using Article I of the Constitution as a device to establish
a federal militia or standing army. What is "right" in your opinion may well
be an accurate assessment of what the Founding Fathers believed about the
private ownership of firearms. But it may also have nothing to do with the
content of the 2nd Amendment. Nobody really knows, because the historical
record on this point is incomplete. And the text of the Amendment itself is
ambiguous.

I'm going to guess that you didn't read the petitioner's brief, or that you
didn't consider it carefully. If so, that's a mistake. You should read it.
It's the basic argument that's been accepted by the Circuit Courts of
Appeals, over the individual-rights argument, by a ratio of 3 to 1. And the
judges on those courts are not stupid people.

--
Ed Huntress