Second Amendment thought/question?

[VakAttack]

So, the Second Amendment to the US Constitution reads "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

After the Heller case, the legal analysis of the amendment became much looser, and essentially said the phrase "well regulated militia" didn't hold sway over the rest of the text.  Using that reading, there should be no infringement in any way on anybody's right to bear firearms.  However, the country still does have some.  I mentioned in another thread that obviously most felons lose their rights to a firearm.  Courts can remove firearms, sometimes.

However, under the reading SCOTUS promulgated in Heller, it seems to me that these restrictions run counter to that logic.  If the right can't be infringed, it can't be infringed.  What do you guys think of that reading?  Should gun rights be completely unfettered under SCOTUS' logic?

 

ETA:  I want to be clear, I'm not trying to trick anybody.  I personally believe we should have more restrictions on gun access than we do, I'm just having a thought experiment with current legal interpretations.

Edited June 12 by VakAttack

[mspart]

Not a complete answer, but I think at the very least, persons convicted of violent crimes should be able to have their 2nd Amendment rights stripped.   Not  just any felon, but those convicted of violent crime.  

Not sure about much else.   Like I said, not a complete answer.

mspart

[WrestlingRasta]

I’m not a fan of a convicted felon being allowed a firearm.  You make a decision to commit a felony, you make a decision to give up some rights. I wouldn’t be in favor of surpassing any basic human rights (food, shelter, education, protection, etc). But owning a gun is not a basic human right. Driving is not a basic human right.  Etc. 

[PortaJohn]

2 hours ago, VakAttack said:

So, the Second Amendment to the US Constitution reads "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Vak.  Can anyone define what the founding fathers meant by "well regulated". Is there written context from that era?  

[jross]

The wisdom of the past is important!

"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." - Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776

"I prefer dangerous freedom over peaceful slavery." - Thomas Jefferson, letter to James Madison, January 30, 1787

"To disarm the people...[i]s the most effectual way to enslave them." - George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adooption of the Federal Constitution, June 14, 1788

"Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops." - Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

"The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one-half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves." - Thomas Paine, "Thoughts on Defensive War" in Pennsylvania Magazine, July 1775

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, Massachusetts Ratifying Convention, 1788

"On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, 12 June 1823

[VakAttack]

4 minutes ago, PortaJohn said:

Vak.  Can anyone define what the founding fathers meant by "well regulated". Is there written context from that era?  

A lot of debate about this, I'm typically more persuaded by arguments like this one, which cites to some of the Federalist Papers (specifically #29 from Hamilton) as well as Federalist #46 by Madison to define the phrase.  Essentially, I feel that the purpose was basically a bulwark against a pure federal military by allowing for states to have their own militaries to protect the separation of powers between the individual states and the federal government.  I do not believe it was intended to confer an individual right without infringement to individual citizens but to "the people" more generally.  I am just one humble lawyer, though, and there's a lot of debate on that issue.

[Scouts Honor]

behind every blade of grass

[Scouts Honor]

29 minutes ago, jross said:

The wisdom of the past is important!

"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." - Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776

"I prefer dangerous freedom over peaceful slavery." - Thomas Jefferson, letter to James Madison, January 30, 1787

"To disarm the people...[i]s the most effectual way to enslave them." - George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adooption of the Federal Constitution, June 14, 1788

"Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops." - Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

"The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one-half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves." - Thomas Paine, "Thoughts on Defensive War" in Pennsylvania Magazine, July 1775

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, Massachusetts Ratifying Convention, 1788

"On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, 12 June 1823

knowing and showing. love it.

[WrestlingRasta]

25 minutes ago, VakAttack said:

A lot of debate about this, I'm typically more persuaded by arguments like this one, which cites to some of the Federalist Papers (specifically #29 from Hamilton) as well as Federalist #46 by Madison to define the phrase.  Essentially, I feel that the purpose was basically a bulwark against a pure federal military by allowing for states to have their own militaries to protect the separation of powers between the individual states and the federal government.  I do not believe it was intended to confer an individual right without infringement to individual citizens but to "the people" more generally.  I am just one humble lawyer, though, and there's a lot of debate on that issue.

I think one important aspect of this debate, and it is a very good one with a lot of good substance on both sides, but not to confuse ‘regulated’ with ‘disarm’ (or the like).  Regulated does not mean not allowed to bear arms. 

[Lipdrag]

4 hours ago, WrestlingRasta said:

You make a decision to commit a felony,

The definition of Felony changes often.  A crime against another person such as rape, murder, etc. might be a felonious choice.  But, Rasta, you have probably committed a felony within the past 48 hours and I bet you did not make a decision to do so

 

.

https://www.mic.com/articles/86797/8-ways-we-regularly-commit-felonies-without-realizing-it

[WrestlingRasta]

Do you really think I would flush my sisters weed down the toilet!?!?

RASTAFAR I

[ionel]

1 hour ago, WrestlingRasta said:

Do you really think I would flush my sisters weed down the toilet!?!?

RASTAFAR I

No one would be stupid enough to flush their sister's weed down the toilet, it might plug up the septic line.  But sure you might burn it.  

[VakAttack]

Related case:  SCOTUS just overturned a ban on the sale of bump stocks, the ban put in place during the Trump administration.   

[mspart]

I think they overturned the federal ban, not state bans.   I'm not sure on that but that is how I understand it.   I don't think they said anything about state bans.   I understand there are 18 states that ban bump stocks.   I personally am in favor of bumpstocks being illegal like machine guns.  If Scotus says no on a federal level, then let the states do it. 

Further to the thread, I believe the 2nd Amendment gives citizens the right to bear arms.   But I also think that that right can be revoked due to psychological issues or legal issues.  There needs to be much better enforcement of the laws that are on the books.   Those should be sufficient to do what is necessary to keep guns out of the hands of people that will use them for nefarious purposes.   Unless of course, they get the guns illegally.   Any crime where a gun is used, there should be enhanced penalties and there should not be any way to plea those down or not prosecute.   Here in the Seattle area, they don't prosecute thieves and robbers for the use of a gun.   At least generally, that charge is dropped.    Part of that may be the enhanced 5 year prison term for such use which is WA law.  I am for that as well.  

Hopefully that more fully states my position over my very short response earlier.  

mspart 

[ThreePointTakedown]

On 6/12/2024 at 3:20 PM, jross said:

The wisdom of the past is important!

"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." - Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776

"I prefer dangerous freedom over peaceful slavery." - Thomas Jefferson, letter to James Madison, January 30, 1787

"To disarm the people...[i]s the most effectual way to enslave them." - George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adooption of the Federal Constitution, June 14, 1788

"Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops." - Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

"The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one-half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves." - Thomas Paine, "Thoughts on Defensive War" in Pennsylvania Magazine, July 1775

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, Massachusetts Ratifying Convention, 1788

"On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, 12 June 1823

Is it pro-life to also be pro-gun? 

Not talking about abortion btw. Seems like those two groups are made up of a similar cohort, tho. But can you be honestly say you are supportive of your fellow humans to live their lives. While simultaneously supporting the ownership of a thing with the sole purpose of ending it quickly? 

[VakAttack]

11 minutes ago, mspart said:

I think they overturned the federal ban, not state bans.   I'm not sure on that but that is how I understand it.   I don't think they said anything about state bans.   I understand there are 18 states that ban bump stocks.   I personally am in favor of bumpstocks being illegal like machine guns.  If Scotus says no on a federal level, then let the states do it. 

Further to the thread, I believe the 2nd Amendment gives citizens the right to bear arms.   But I also think that that right can be revoked due to psychological issues or legal issues.  There needs to be much better enforcement of the laws that are on the books.   Those should be sufficient to do what is necessary to keep guns out of the hands of people that will use them for nefarious purposes.   Unless of course, they get the guns illegally.   Any crime where a gun is used, there should be enhanced penalties and there should not be any way to plea those down or not prosecute.   Here in the Seattle area, they don't prosecute thieves and robbers for the use of a gun.   At least generally, that charge is dropped.    Part of that may be the enhanced 5 year prison term for such use which is WA law.  I am for that as well.  

Hopefully that more fully states my position over my very short response earlier.  

mspart 

Definitely the federal ban.

As to your second paragraph, that was more of what I was trying to get at, using the Heller case as the prism.  The language in the amendments says the right shall not be infringed, but we definitely allow infringements  Do you agree or disagree that, if we're interpreting the language as is under the Heller case and using originalist interpretation that many of the Heller court and definitely the current court favor, that any gun ownership law at all is illegal?

This is more of a philosophical and legal interpretation debate that just, frankly, may only be interesting to me.

[mspart]

37 minutes ago, ThreePointTakedown said:

Is it pro-life to also be pro-gun? 

Not talking about abortion btw. Seems like those two groups are made up of a similar cohort, tho. But can you be honestly say you are supportive of your fellow humans to live their lives. While simultaneously supporting the ownership of a thing with the sole purpose of ending it quickly? 

There is no dichotomy here.   Owning a gun and being pro life are not mutually exclusive.   If you are pro life you are not using that gun to end lives unless your own or someone else's life is being imminently threatened.   I see no conundrum here at all.   I think that being pro life means protecting the innocent.   Be it abortion, crime, etc.   Who's life am I "pro" for?   My own, that of my family, then friends, then strangers who have their life in peril because of a perp.   The perp does not get consideration since he is willing to destroy an innocent life.  

I do not carry a gun.   I have not found that this is necessary for me just yet.   But I would not be opposed to carrying a gun if society gets to the point where I am feeling in danger.   I have never shot anyone.   I would most likely have a hard time doing so but would to save a family member for sure.  

mspart

 

Edited June 14 by mspart

[mspart]

23 minutes ago, VakAttack said:

Definitely the federal ban.

As to your second paragraph, that was more of what I was trying to get at, using the Heller case as the prism.  The language in the amendments says the right shall not be infringed, but we definitely allow infringements  Do you agree or disagree that, if we're interpreting the language as is under the Heller case and using originalist interpretation that many of the Heller court and definitely the current court favor, that any gun ownership law at all is illegal?

This is more of a philosophical and legal interpretation debate that just, frankly, may only be interesting to me.

I guess I don't know the Heller case and its conditions etc.   Gun ownership should be legal for everyone without extreme mental issues or not convicted violent criminals.  I believe laws are already in place in this regard.   Otherwise, I really haven't thought about it much more than that.  

mspart

Edited June 14 by mspart

[PortaJohn]

52 minutes ago, VakAttack said:

This is more of a philosophical and legal interpretation debate that just, frankly, may only be interesting to me.

I find this topic extremely interesting but like abortion my opinions on it changes like the wind.  There are so many shades of gray 

To clarify:  I've never been Pro Life full stop and fully support exceptions like rape, incest, safety of the mother.  More struggle with the rest of it.  But let's not get off topic.  Not trying to derail this specific 2nd amendment topic

Edited June 14 by PortaJohn

[Offthemat]

The ruling was that the bump stock couldn’t be banned using the same law that restricts ownership of machine guns.  From the beginning weapons were denied to crazy or mentally unstable people, and that’s the reasoning behind denying them to drug users.  Drinkers are only usually restricted if they are under the influence at the time of possession.  
Somewhere, justice Barrett hinted that nonviolent felons might retain their 2A rights.  You probably shouldn’t have to lose your 2A rights for tearing the tag off the mattress.  It’s really kind of screwy the way it works.  The felons that really shouldn’t have guns, usually do, and the felons that obey the law and never get near a gun, would probably be alright.  Laws are only effective if they’re enforced. 

[mspart]

22 minutes ago, Offthemat said:

 Laws are only effective if they’re enforced. 

Amen to that braddah!!   We have laws on the books that are not enforced.   In fact mental and legal gymnastics are used to avoid charging someone with a gun infraction.   And this from those that want more gun laws.   It makes no sense really. 

mspart

[jross]

1 hour ago, ThreePointTakedown said:

Is it pro-life to also be pro-gun? 

Not talking about abortion btw. Seems like those two groups are made up of a similar cohort, tho. But can you be honestly say you are supportive of your fellow humans to live their lives. While simultaneously supporting the ownership of a thing with the sole purpose of ending it quickly? 

Yes.

The gun is a tool for hunting, defense, sports, and professional duties. The misuse of the tool does not define its primary purposes.  

The sale, possession and production of fentanyl is illegal, unless authorized for medical, scientific or industrial purposes...  yet it is accessible and killed 108K people in 2022 due to misuse.  What good is the law?  Should fire be banned (burning)?  Should water be banned (drowning)?

Open gun ownership is a deterrence to the would be criminal, to government overreach, and to other countries that may seek our resources.  I'm all for effective policing to deter and punish crime in the city's hot spots.

There is not a gun violence problem where I live... so I gain near-zero safety for a ban at the cost of my personal freedom, autonomy, and independence.  Taking away my guns will not protect a human life.

[Scouts Honor]

4 hours ago, ThreePointTakedown said:

Is it pro-life to also be pro-gun? 

Not talking about abortion btw. Seems like those two groups are made up of a similar cohort, tho. But can you be honestly say you are supportive of your fellow humans to live their lives. While simultaneously supporting the ownership of a thing with the sole purpose of ending it quickly? 

yes.

[WrestlingRasta]

Abortion and Guns are too completely different debates. Trying to compare, combine them is cute parlor trick attempts.  

[Offthemat]

It needs pointed out that Biden has been lying about this too.  You can own a cannon.  And a tank.  And a machine gun and artillery too.  It’ll require a background check and a lot of money, but there are people around the country that have them.  There used to be a place around here that you could spend your time, and money, firing all sorts of military weapons that were privately owned.