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It's one of the fundamental problems with the entire gun debate. The gun advocates are pushing against a total ban to give them energy...while public opinion is heavy on reasonable control. -spence |
Ok, so banning certain guns will solve or woes........idiotic
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-spence |
[QUOTE=ReelinRod;978147]
The right to keep and bar arms does not in any manner depend on the 2nd Amendment for its existence. The reason why the citizen possesses the right to arms is because no power was ever granted to government to have any interest whatsoever in the personal arms of the private citizen.[/SIZE] This + This Quote:
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holy crap did someone actually read dc vs heller?
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where/when did LaPierre say that banning violent movies and video games would be the answer to all of our woes???? |
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I believe that the second quote: "Governments can only claim power to restrict "dangerous or unusual arms" is referring mostly to state governments since the Federal Gvt is already presumed, via the Second Ammendment and the Constitution's silence, to have no interest in private ownership of arms. Note the plural use of government(s), not singular government. And note the use of "claim" to restrict, and the rest of the sentence left out of your quote: "But government does not get to begin its action presuming the arm is "dangerous and unusual" beause it doesn't think the citizens have any good reason to own it, or it isn't used in hunting (i.e. the present idiotic 'assault weapons' hoopla)." Considering the entire context of RR's quotes, and his assertion that SCOTUS has not had opportunity to examine the Second Ammendment in its entire relation to private arms ownership, I don't think there is a contradiction in what he says. Not that I am confident that SCOTUS would rule as RR wishes, especially if rulings come from an Obama packed Court. |
Luckily I live in Vermont
Article 16th. Right to bear arms; standing armies; military power subordinate to civil That the people have a right to bear arms for the defence of themselves and the State - and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. this has been in court before and if you are asked: why is that gun loaded, the answer is for my defense. |
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There was a "But . . . " in there. Why don't you try again and let's see if this "contradiction" survives:
The type of arm commonly referred to as an "assault weapon" meets ALL the tests for protection so it can not be "dangerous and unusual". Thus, any government claim of power to restrict / control / ban the possession and use of that type of arm is repelled and the citizens right to possess and use that type of arm will be preserved. |
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Even though no express power was granted via the Constitution the feds can argue that a compelling government interest to restrict any right exists. If government's arguments are convincing and supported it could be afforded the unenumerated power being claimed. I could see this happening if anyone ever brings action for Title II arms; even though, as Heller recognizes machineguns meet the usefulness protection criteria, the feds could argue that NFA-34 is a legitimate exercise of power even under strict scrutiny* . . . This after all was what Miller was all about . . . no evidence was offered to show that a "shotgun having a barrel of less than eighteen inches in length . . . is any part of the ordinary military equipment, or that its use could contribute to the common defense". No evidence presented and the Court not looking on their own = the Court finding that the arm is -dangerous and unusual- thus government's claim of power to restrict private, individual, civilian possession and use is sustained. Had such evidence been presented the right to own would have been upheld and that part of NFA-34 would have been struck down. --------------------- * The strict scrutiny standard is the most thorough analysis. The purpose, objective, or interest being pursued by the government must be "compelling". Also, the means to achieve the purpose, objective, or interest is reviewed to determine if it is "narrowly tailored" to the accomplishment of the governmental purpose, objective, or interest. There must not be any less restrictive means that would accomplish the government’s objective just as well. |
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In 1996, Justice Scalia provided an explanation of the Court's application of its standards of scrutiny. He said “I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: 'rational basis' scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state 'classifications based on race or national origin and classifications affecting fundamental rights,' Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation omitted). It is my position that the term 'fundamental rights' should be limited to 'interest[s] traditionally protected by our society,' Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion of Scalia, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider 'fundamental.' We have no established criterion for 'intermediate scrutiny' either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex. I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it)." (United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996)) I agree with Scalia that "strict scrutiny" as well as the other standards of scrutiny are unscientific and random. I believe they can also, as revealed in the dissents in Heller, be politically inspired in their "interpretation." And if not politically inspired, certainly bias or, simply, a different point of view can result in differing opinions and results. Which is why I don't think the Second Ammendment is "safe" from being transformed from original interpretation to some progressive, "Living Constitution" creature. If the Second Ammendment will in the future be more thoroughly reviewed, it may well depend on who sits on the court whether original interpretations will stand. And whether the idea that government's purpose, objective, or interest must be "compelling" again will ultimately be decided by the makeup of the Court. These are the kinds of judicial mechanisms that have been used to overcome originalism and textualism, and which have evolved to a great extent to do so. They are samples of evolved jurisprudence methodology that has created the "Living Constitution" and enabled progressive rule by men rather than by law. |
I believe that the test to determine what a "fundamental right" is, is well established and now that fundamental status has been declared for the right to arms for self defense it can't be undone.
That all that judicial invention of standard of scrutiny exists, (along with selective incorporation), is why many people were so excited when SCOTUS granted cert to McDonald v Chicago and not NRA v Chicago (although they were joined later). Conservatives and Liberals hoped that McDonald's primary argument that the right to arms is enforceable on the states by way of the 14th Amendment's "privileges or immunities" clause, meant the Court would revisit Slaughterhouse. Slaughterhouse gutted the "privileges or immunities" clause which only left "due process' as the vehicle to apply the Bill of Rights to the states under the 14th Amendment. This also left unenumerated rights out in the cold, hence the "invention" of prenumbral rights including the right to privacy / Roe v Wade. "Due process" demands a case by case, fact by fact inspection which of course leaves politically agenda driven judges and Justices plenty of parchment to add to the Constitution. Thomas' concurrence in McDonald is a history lesson and an explanation and indictment of the "legal fiction" described above. Thomas's concurrence is a blueprint of where we should be and I recommend everyone read it. Liberals would be happy because the unenumerated rights they embrace would be secure without questionable reasoning and conservatives (at least those who cherish the Constitution, as opposed to "social' and "cultural" conservatives) would be happy because the Constitution would finally be enforced. |
they want to ban assault weapons....it is in the wording if put on paper...define assault weapon....U try or come into my house with a bat....I in turn assault U with my single shot weapon...what would that law mean when given to an attorney???
I have plenty of fire power..not a single shot |
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Care to support your claim that "public opinion is heavy on reasonable control"? Seems more like the public would like existing laws to be enforced, see: 57% Think Enforcing Current Gun Laws More Important Than Creating New Laws - Rasmussen Reports "just 32% of American Adults believe creation of new gun control laws is more important. Fifty-seven percent (57%) think more emphasis should be put on stricter enforcement of existing gun control laws." 65% See Gun Rights As Protection Against Tyranny - Rasmussen Reports "Not surprisingly, 72% of those with a gun in their family regard the Second Amendment as a protection against tyranny. However, even a majority (57%) of those without a gun in their home hold that view. " (emphasis mine) If someone wants to claim bias, this is from an organization whose head *wants* Congress to enact more laws: Rasmussen on gun violence: taking no action ‘perfectly wrong’ | TheBlaze.com How about the Gallop poll? 51% against a new AWB. Guns So, once again spence, how about putting away feel good terms like "reasonable control" and actually being explicit? Provide some support that "public opinion is heavy on reasonable control". Also, do you still disagree with Clinton and think it wasn't their gun control measures in '94 that beheaded the Democrats for almost a decade? |
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"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." |
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But Heller and McDonald were both 5 to 4 decisions. Kagan and Sotomayor didn't even bother to write a dissent in McDonald. I think that elections DO matter, and "fundamental rights" can be restricted or denied depending on who legislates and which judges have been appointed by those elected. Thomas and Scalia may not be sitting on the Court in the near future, and if progressive judges take their place, the assault on individual, "fundamental" rights will continue. And even if the Second Ammendment is now unassailable, which I don't think is true, given how that "great residuum" of rights has been gutted or put under the largesse of government, what use would the 2nd be if all others were taken? Are we worthy, as a people, of the Second Ammendment? Would we, under duress of losing our rights, actually put that Ammendment to the use for which it was ultimately intended? I don't think so. |
Looks like the Dems may not have enough votes to pass the ban... Some Dems are bailing because they know this will do nothing... :devil2:
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But as for gun control, it's certainly been studied and found that more guns = more gun crimes and stricter gun laws employed in other country has indeed had a significant impact on gun violence. The challenge in the US is that there are so many firearms to begin with...the AWB was too short and too full of loopholes to provide a dramatic impact. That being said, the Feinstein proposal does cite several studies of it's benefits. Quote:
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Also, they people don't think the government can ban guns in a broad sense does in no way counter public opinion that we need more comprehensive control. Quote:
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-spence |
I look at it like banning extra large soda drinks. It won't accomplish anything but some will say " well you have to start somewhere " . And there lies the truth behind an agenda
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You did sound so passionate and genuine though. Thanks for caring. -spence |
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add large cap mags to the list(tougher background checks and close gun show loopholes) and tell me which of the "real goals as in what they think they can accomplish" would have prevented the incidents that they/you are attempting to build your/their case with? |
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Do you mean bo schnizzle? -spence |
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"Whoever would effect a change in a modern constitutional government must first educate his fellow-citizens to want some change. That done, he must persuade them to want the particular change he wants. He must first make public opinion willing to listen and then see to it that it listen to the right things. He must stir it up to search for an opinion, and then manage to put the right opinion it its way." In America he must effect that change in its Constitution by transforming it from an immutable law that protects individual inalienable rights inherited by their nature and granted by nature's God, to a living and changeable system of government which grants those rights and without which there are no rights. And that government will be by men, not by law, and by men who are "experts," who will be the trustees and administrators of the good that will be regulated for and to the people. And, as competent admistrators, the soft despots must not allow the people to become fat and diabetic, for that would create a financial, distributive, and moral burden on society, and especially on the administration. Limit and regulate the amount of fats and sugars in packaged foods, for instance, and regulate the size of soft drinks and tax and regulate destructive behaviour such as smoking, etc. |
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