NRA

[ReelinRod]

Originally Posted by Jim in CT

The 2nd amendment says the right to bear arms shall not be infringed.

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. It is a pre-existing, fully retained, fundamental right and as such, any law challenged as being a violation of the right is presumed unconstitutional.

Originally Posted by Jim in CT

We have collectively decided that banning machine guns and mortars is not a violation of that clause.

You shouldn't be so cock-sure . . . Many, many, many laws stand now as "presumptively lawful" as they have not yet been challenged under Heller (2008). For 70 years laws were upheld using the lower federal court "militia right" or "state's right" or generic "collective right" inventions / mutations / perversions that were invalidated by the Supreme Court in Heller.

Also, many also were upheld pre-McDonald (2010) because it was held that the federal 2nd Amendment did not impede state legislatures (also a legal doctrine now invalidated).

Originally Posted by Jim in CT

I feel one could make a compelling case that banning things like high-capacity magazines (or anything else designed for military capacity, not civilian use) is similar.

Governments can only claim power to restrict "dangerous or unusual' arms. But . . . government does not get to begin its action presuming the arm is "dangerous and unusual" because 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" ban hoopla).

The Supreme Court in 1939 established the criteria for courts (and presumably legislatures ) to determine if an arm is afforded 2nd Amendment protection.

If the type of arm meets any one of them then it cannot be deemed 'dangerous and unusual' and the right to keep and bear that weapon must be preserved and any authority claimed by government to restrict its possession and use is repelled.

Those criteria state that to be protected by the 2nd Amendment the arm must be:

• A type in common use at the present time and/or
• A type usually employed in civilized warfare / that constitute the ordinary military equipment and/or
• A type that can be employed advantageously in the common defense of the citizens.

Failing ALL those tests, the arm could then and only then be argued to be "dangerous and unusual" and the government would be permitted to argue that a legitimate power to restrict that type of arm should be afforded .

"Dangerous and Unusual" is what's left after the protection criteria are all applied and all fail . . . Think of it as legal Scrapple . . .

Originally Posted by Jim in CT

I agree that banning rifles that look scary, but in fact operate exactly like a small-game hunting rifle, is not accomplishing much.

That seems to be much more than Feinstein and Biden are willing to stipulate. Thanks a lot . . .

Originally Posted by Jim in CT

I'm talking about banning things that are significantly more lethal, yet which serve no significant need except to make guys with small wee-wees feel macho enough.

Well, if anything really speaks to a mature and reasoned discussion it is ^that^.

Originally Posted by Jim in CT

The type of ban I'm talking about might not have had any impact to the Newtown tragedy. But it might help mitigate the next one.

You "might" want to learn about fundamental rights and strict scrutiny. You "might" learn that "might" isn't part of the mix. . . .

[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

Governments can only claim power to restrict "dangerous or unusual' arms.

= Contradiction.

-spence

[likwid]

holy crap did someone actually read dc vs heller?

[detbuch]

[QUOTE=spence;980906]

Originally Posted by ReelinRod

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

Governments can only claim power to restrict "dangerous or unusual" arms.

= Contradiction.

-spence

The first quote by RR was a response to Jim in Ct re the Second Ammendment, and was meant to show that the ammendment was not really necessary because the right pre-existed the Constitution, and, since no power was granted in the Constitution which was written as a limitation on the central government to only those powers granted to it, the Federal Gvt. should have no interest in private ownership of arms. When RR repeated the statement in response to a post by me, he added the word "federal": "No power was ever granted to the federal government to have any interest whatsoever in the personal arms of the private citizen . . ."

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.

[ReelinRod]

Originally Posted by detbuch

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.

I was referring to the federal government primarily.

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.

Strict scrutiny is applied in cases where there is a real and appreciable impact on, or a significant interference with the exercise of a fundamental right. The language of the court's opinion indicates the level of scrutiny applied. If the analysis discusses a compelling interest that is narrowly tailored to achieve its goals, it is a strict scrutiny analysis. Strict scrutiny is at the opposite end of the spectrum for the rational basis test used. Under the rational basis standard, the court determines whether there is any rational justification for the classifications created by a challenged rule, which must further a “legitimate governmental interest". Under intermediate scrutiny, the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.


US Legal

[detbuch]

Originally Posted by ReelinRod

I was referring to the federal government primarily.

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.

Strict scrutiny is applied in cases where there is a real and appreciable impact on, or a significant interference with the exercise of a fundamental right. The language of the court's opinion indicates the level of scrutiny applied. If the analysis discusses a compelling interest that is narrowly tailored to achieve its goals, it is a strict scrutiny analysis. Strict scrutiny is at the opposite end of the spectrum for the rational basis test used. Under the rational basis standard, the court determines whether there is any rational justification for the classifications created by a challenged rule, which must further a “legitimate governmental interest". Under intermediate scrutiny, the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.


US Legal

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.

[ReelinRod]

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.

[detbuch]

Originally Posted by ReelinRod

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.

It is telling that we have to "test" to determine what are fundamental rights. Would that "great residuum of everythng not conferred to government" be comprised of fundamental rights? Isn't that why the Federalists didn't want to create a Bill of Rights? And isn't what they warned against that which has happened? Haven't the Bill of Rights implied exceptions to powers not granted and afforded colorable pretext for the Federal Gvt. to claim more rights than were granted to it. And by doing so, has not that Federal Gvt. suppressed, usurped, or gained power over the vast residuum of individual rights, leaving only a violation of the Bill of Rights worthy of "Strict Scrutiny?"

And aren't even those rights in The Bill of Rights under assault?:

First Ammendment: Contraceptive insurance required even by certain religious orgs. The rather newly "found" Doctrine of Government Speech that can override individual speech.

2nd: The constant attempts by the Federal Gvt. to regulate, restrict, or ban arms.

4th: The Patriot Act.

5th: Kelo v. New London.

9th and 10th: Progressive judicial "interpretation" especially from FDR Court to the present have allowed the Federal Gvt. to wrest powers beyond the enumerated powers or have twisted the meaning of clauses which has debilitated or denied much of that "greate residuum" of rights that were to be retained by the people.

Thomas's concurrence is a blueprint of where we should be and I recommend everyone read it.

I followed your advice and did read it. I agree. Thomas is my favorite SCOTUS Judge. I think he is more faithful to the Constitution even than Scalia.

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.

[ReelinRod]

Originally Posted by spence

This + This

= Contradiction.

Did you stop reading as soon as you found this supposed "contradiction"?

There was a "But . . . " in there.

Why don't you try again and let's see if this "contradiction" survives:

Originally Posted by ReelinRod

Governments can only claim power to restrict "dangerous or unusual' arms. But . . . government does not get to begin its action presuming the arm is "dangerous and unusual" because 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" ban hoopla).

The Supreme Court in 1939 established the criteria for courts (and presumably legislatures) to determine if an arm is afforded 2nd Amendment protection.

If the type of arm meets any one of them then it cannot be deemed 'dangerous and unusual' and the right to keep and bear that weapon must be preserved and any authority claimed by government to restrict its possession and use is repelled.

Those criteria state that to be protected by the 2nd Amendment the arm must be:

• A type in common use at the present time and/or
• A type usually employed in civilized warfare / that constitute the ordinary military equipment and/or
• A type that can be employed advantageously in the common defense of the citizens.

Failing ALL those tests, the arm could then and only then be argued to be "dangerous and unusual" and the government would be permitted to argue that a legitimate power to restrict that type of arm should be afforded .

"Dangerous and Unusual" is what's left after the protection criteria are all applied and all fail . . . Think of it as legal Scrapple . . .

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.

[Fly Rod]

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