Literal meaning of 2nd amendment - Page 3

Literal meaning of 2nd amendment

This is a discussion on Literal meaning of 2nd amendment within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Has anyone advocated civil disobedience or law-breaking in this thread? I must have missed it....

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  1. #31
    Distinguished Member Array Hoganbeg's Avatar
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    Has anyone advocated civil disobedience or law-breaking in this thread? I must have missed it.
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  2. #32
    Distinguished Member Array bigmacque's Avatar
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    Those who do not know their history are doomed to repeat it.
    I'm in favor of gun control -- I think every citizen should have control of a gun.
    1 Thess. 5:16-18

  3. #33
    VIP Member Array SIGguy229's Avatar
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    Quote Originally Posted by tuft View Post
    Hey everyone, first time poster but long time reader.

    I read the full text of the 2nd amendment and nowhere does it state that we have the right to privately buy, own, and possess guns at our homes for an indefinite period of time. It says we have the right to keep and bear arms. Couldn't that mean that all the guns could be kept in a central location in every town and people could have access to them during war or tyrannical govt takeover? It talks about a militia bearing arms, but it doesn't actually state that everyone has the right to buy a gun and privately keep it in their home forever.

    I don't want to start a flame war but I think this is interesting.
    I see you are not a student of history.

    See: Battles of Lexington and Concord - Wikipedia, the free encyclopedia

    The "military supplies" they refer to in this article were guns, gun powder, and shot...in other words, the British were coming to seize the guns of the colonists so they they could not defend themselves. Thus the right the of people to keep and bear arms shall not be infringed.
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  4. #34
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    Quote Originally Posted by tuft View Post
    ...I read the full text of the 2nd amendment and nowhere does it state that we have the right to .... but it doesn't actually state that everyone has the right to..."
    tuft - I think there is a fundamental flaw in your understanding of the Founding Documents. Aside from all the other excellent Constitutional examples you have been getting here, there are the 9th and 10th Amendments. The Bill of Rights is an enumerated list of INDIVIDUAL rights. It does not grant, but rather re-affirm we have these rights (among others, see 9th amendment). The founding documents grant limited power to the government. The default position is that the government has no rights unless specifically granted, not that it has all rights unless specifically limited. The People retain all rights, stated or unstated, and choose which limited powers to grant to the government.

    So to address your statement, neither the Constitution or 2A needs to explicitly state we have the right to keep individual arms. We already do. There is no clause or amendment anywhere that says "Individuals must keep individual arms in a collective armory".

    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
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  5. #35
    Member Array Mjr_Fail's Avatar
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    I think the OP is trolling...
    "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." --Benjamin Franklin

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  6. #36
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    Merriam-Webster has been recording the definition of words since 1806.

    To Keep - to retain in one's possession or power

    To Bear - to move while holding up and supporting

    Infringe - to encroach upon


    When you break it down to its simplest terms, it ain't rocket surgery.
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  7. #37
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    Quote Originally Posted by bklynboy View Post
    OP, welcome to the forum. The issue you raise was partially litigated in the Heller case and the remaining part of hte issue will likely be resolved when Moore, et al. v. Madigan, from the 7th Circuit reaches the SC.

    In Heller, Justice Stevens in his dissent claimed that the 2A only applied to official militia activities (which presumably could limit the right to guns stored in an armory). This argument was refuted by Justice Scalia in the majority opinion wherein the court found that the 2A included a right to self defense and that right required that citizens be permitted to maintain loaded firearms at home to accomplish this. In the Moore case, just decided by the 7th Circuit in December, the court held that a right to self defense includes the right to defend oneself in places outside the home, so it found a constitutional right to carry. The Moore case will undoubtedly end up in the Supreme Court.

    The point of this is that if you have a right to defend yourself , that right is effectively eliminated if you must first go to an armory to get your weapon. So even though the right to buy a weapon and store it at home or carry it is not explicitly stated in the 2A, it is impossible to be able to defend oneself without first buying a firearm and them being able to keep it loaded at home and outside the home. There is a strong precept in law that requires laws to be given a 'natural' rather than an 'artificial' reading. This means that if a law is construed to prohibit its natural function, that construction is invalid. So for example, you cannot give people the right to vote and then effectively prohibit them from voting by requiring the payment of a poll tax. THe same principle applies to the question of the purchase and carrying of firearms. BTW, the issue of the poll tax is also applicable to the issue of taxes on firearms and ammunition. You cannot have a right to keep and bear arms be subject to a punitive tax on guns and ammo that effectively bars citizens from owning guns and ammo to which they are entitled under the 2A.

    Hope that answers your question
    Thank you for what I think is one of the best posts on this issue so far, ever.
    My guess is that when the case is ruled on by The Supremes (and my guess is worthless of course), they will
    uphold the right to carry subject to various regulations; as they did with the right to have guns in the home.

    If I am right, then NY's new law would be fully constitutional; as too would Arizona's more free-wheeling approach.
    By recognizing the right while acknowledging that there is such a thing as reasonable regulation, and by allowing the
    states and local governments the authority to determine what those regulations should be---provided they don't cross
    the red line into "infringement," The Supremes will enable our lawmakers to move forward in a more coherent and
    sensible path, as fits their own state's needs.

    I think this is the direction it is going, and the likely outcome. I don't see The Supremes as likely to impose
    "constitutional carry" on all of the states, nor do I see them as ruling in a way that would make concealed carry
    impossible.
    Last edited by Hopyard; January 27th, 2013 at 03:00 PM. Reason: spelling
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  8. #38
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    Literal meaning of 2nd amendment

    Quote Originally Posted by Mjr_Fail View Post
    I think the OP is trolling...
    I think you nailed it on the head.


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  9. #39
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    Quote Originally Posted by Yoda View Post
    I think you nailed it on the head.


    Sent from my iPhone using Tapatalk
    That might well be but nonetheless it provoked some important discussion.
    shooterX and loach like this.
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
    Andrew Jackson

  10. #40
    Distinguished Member Array Hoganbeg's Avatar
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    Quote Originally Posted by Mjr_Fail View Post
    I think the OP is trolling...

    Yes, but we did have a nice little romp, didn't we!

  11. #41
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    Quote Originally Posted by tuft View Post
    Hey everyone, first time poster but long time reader.

    I read the full text of the 2nd amendment and nowhere does it state that we have the right to privately buy, own, and possess guns at our homes for an indefinite period of time. It says we have the right to keep and bear arms. Couldn't that mean that all the guns could be kept in a central location in every town and people could have access to them during war or tyrannical govt takeover? It talks about a militia bearing arms, but it doesn't actually state that everyone has the right to buy a gun and privately keep it in their home forever.

    I don't want to start a flame war but I think this is interesting.
    See if you can locate a copy of "THAT EVERY MAN BE ARMED" by Stephen P. Halbrook; NEVER in US Supreme Court arguments do the lawyers only argue the words printed in the Constitution.

    Also read The Federalist Papers, there are searchable sites where you can search key words like "arms" and "militia" but especially read #46 a small section here...

    Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands {note: "in their hands" not safely secured in a state run armory down town} , officered by men chosen from among themselves, fighting for their common liberties
    Also read "Militia Act of 1792", passed by the first session of the 2nd congress (most were also members of the first congress that ratified the Constitution) to see what their idea of what a Militia was.

    The Militia Act of 1792

    Also actually READ UNITED STATES v. MILLER, 307 U.S. 174 (1939) it doesn't say what the liberals have taught you it says..

    http://caselaw.lp.findlaw.com/script...=307&invol=174

  12. #42
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    I knew he was trolling, hence my sarcastic joviality.
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  13. #43
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    Hoppy, thank you for your kind words.

    Of course nobody knows what the SC will do next, even two of the best Pro 2A lawyers (Eugene Volkah and Dave Kopel - both of who were cited by Scalia in Heller) have come out with different opinions on the constitutionality of Mag limits and the AWB. Volkah thinks an AWB ban would likely not pass muster but a 10 round mag limit might Eugene Volokh on the constitutionality of RKBA restrictions post Heller. Kopel recently said that both AW's and standard size mags (15-20 for pistols and 30 for rifles) should both be deemed to comply with the Heller test of being in common use by civilians (and by cops who he makes a point of being civilian and not military) and could both be found to be protected The Second Amendment in 2013 (David B. Kopel)).

    As to constitutional carry, I agree that the states will be given great leeway with respect to open and concealed carry laws, but if a 'may issue' law in conjunction with a no open carry law operates to effectively eliminate virtually all rights to carry, I do not think that will pass constitutional muster.

    As to the NY law, we actually have an advantage here; both the NY law and many other similar state and federal recently proposed laws are so poorly researched and written due to how they were rushed through the process, I think there are many ways they might be found to be fatally flawed even without a full examination on the merits. Look for example at Feinstein's proposed bill, it permits a Mossberg 930 with a seven round mag and a pistol grip if it is painted in camo and called a turkey gun but prohibits the same exact gun painted in black and called a 930 SPX. The lack of a comment or waiting period in NY prior to making the law effective may also expose due process flaws. These kinds of sloppy mistakes increase the odds that the bills can at least be slowed down by a Temporary Restraining Order (which is also why it is asinine to be thinking in terms of civil disobedience at this point). Even on the merits, it is hard to see how the NY law can pass constitutional muster. The way I read it, it eliminates the vast majority of semi auto handguns and rifles manufactured in the last 25 years and the vast majority of non-revolver, non shotgun self defense guns. In totality, it may actually eliminate the majority of all guns currently in use by civilians in NY for self defense. There are not even 7 round mags made for most of the guns in question. By going for 7 rounds as opposed to 10, Cuomo may have doomed the law. I do not see how that broad a disarmament of defensive guns can be deemed permissible in light of the Heller holding that firearms "in common use" by civilians may not be arbitrary restricted.

    Finally, all of this depends on who is sitting on the SC. The worst strategic mistake made by the Anti's this time around was rushing things so much that Obama may not have a chance to change the composition of the SC before the issues come before the court. And let's not forget that Justice Kennedy, the swing vote here, is not as ideological as the other four Justices who would form the majority on AWB/>10 mag limits cases. Even though Kennedy voted with the majority in both Heller and McDonald, I have a feeling that he would be more constrained in supporting a broad holding in support of assault weapons and unlimited mag sizes. This may very well come down to what case actually ends up making its way through the courts and acting as the basis of a Cert Petition. One of the advantages we have here is that there are likely to be so many over the top laws, the Pro 2A lawyers will have plenty of room to choose the right case to take forward.
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  14. #44
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    Quote Originally Posted by Mjr_Fail View Post
    I think the OP is trolling...
    If it walks like a duck, and talks like a duck and looks like a duck..... It must be a liberal.
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  15. #45
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    Quote Originally Posted by tuft View Post
    Hey everyone, first time poster but long time reader.

    I read the full text of the 2nd amendment and nowhere does it state that we have the right to privately buy, own, and possess guns at our homes for an indefinite period of time. It says we have the right to keep and bear arms. Couldn't that mean that all the guns could be kept in a central location in every town and people could have access to them during war or tyrannical govt takeover? It talks about a militia bearing arms, but it doesn't actually state that everyone has the right to buy a gun and privately keep it in their home forever.

    I don't want to start a flame war but I think this is interesting.
    What does keep mean? Have or retain possession of. If I don't have direct possession of a weapon I am not the keeper of it. That right there nullifies what you wrote entirely.

    Also what did well regulated mean to the founders? The most basic explanation is "well trained" or "well commanded". Nothing to do with limitations as the word used today means.
    No free man shall ever be debarred the use of arms.
    -Thomas Jefferson

    Laws are restrictive but sometimes necessary to maintain a civil society. Rights are nonrestrictive but are always necessary to maintain a free society.

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