The 2nd amendment does not say "Except for felons" or "Except as provided by law". Why not?

[C_Clayton_Jones]

"The 2nd amendment does not say "Except for felons" or "Except as provided by law". Why not?"

Because the Constitution exists solely in the context of its case law, including the Second Amendment, as determined by the Federal courts and ultimately the Supreme Court, as authorized by the doctrine of judicial review, and Articles III and VI of the Constitution.

In DC v. Heller (2008) the Supreme Court held that the Second Amendment enshrines an individual right to possess a firearm pursuant to the right of lawful self-defense; it further held that jurisdictions subject to the Federal government could not enact a comprehensive ban on the possession of all firearms – handguns in particular.

In McDonald v. Chicago (2010) the Supreme Court ruled that the 14th Amendment incorporates the Second Amendment to the states and local jurisdictions, invalidating statutes that likewise enact a comprehensive ban on all firearms.

The Heller Court admonished lower courts to not infer that the ruling undermined other necessary, proper, and reasonable restrictions concerning the possession of firearms:

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.'

DISTRICT OF COLUMBIA v. HELLER

Consequently, regulatory measures identifying prohibited persons, such as the mentally ill, undocumented immigrants, and felons, are lawful and comport with the Second Amendment.

“But that's not in the Constitution” is a failed and ignorant 'argument'; again, the Constitution exists solely in the context of its case law, as determined by the Supreme Court – nowhere in the Second Amendment will one find the words 'individual' or 'self-defense,' but as a fact of Constitutional law the Second Amendment indeed recognizes and codifies both rights.

Last, that the Second Amendment authorizes government to enact reasonable restrictions with regard to firearms is settled, accepted, and beyond dispute – the question therefore is not whether government may regulate firearms, as the case law is clear that government may indeed do so; rather, the question is what restrictions are reasonable and appropriate and what restrictions are not.

 

[rightwinger]

"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."

versus

"The right of the people to keep and bear Arms shall not be infringed."


Why did the Founders put all those words and commas in there unless they had some effect?

Exactly

The first amendment does not have any qualifiers

 

[Little-Acorn]

"The 2nd amendment does not say "Except for felons" or "Except as provided by law". Why not?"

Because the Constitution exists solely in the context of its case law

The standard excuse fabricated by people who want to violate the Constitution.

"If the Constitution says one thing and the Courts say another, the courts should prevail."

People who say that, know they could never get the American people to accept and ratify their agenda into the Constitution. So, rather than obey the Constitution, they try to pretend the Courts can change it by fiat.

 

[C_Clayton_Jones]

I want to talk about why there are no stated exceptions to the 1st Amendment rights, and yet we have clearly allowed exceptions,

Feel free to open another thread on that subject.

But kindly stop trying to hijack this one.

Actually the question is relevant and on-topic.

As with the First Amendment, the Second Amendment is not absolute – both are subject to reasonable restrictions by government.

One Amendment is not 'superior' to another, or entitled to 'special treatment' by the judiciary; one may not shout Fire in a crowded theater, a reasonable restriction by government – as is prohibiting convicted felons from possessing firearms.

 

[FA_Q2]

A "condition" debunked many times on this forum. Apparently little rightwinger thinks enough time has gone by that he can try to fool people into thinking it's true again.

How do you view our gun policy and second amendment? | Page 4 | US Message Board - Political Discussion Forum

I know, I know

If the founders had wanted to make gun rights absolute they could have written it as such

The right to bear arms shall not be infringed PERIOD
They did not

Actually, they ere very clear that it is a right retained by the people.

People such as yourself don't give a damn though - you continue to demand that the militia is a requirement to bear arms when it is clear that the plain language of the second does not insinuate that in the slightest. The courts have directly addressed this and found the idea lacking.

Whoa, the militia clause is not part of this debate. Rather, assuming there is a personal right (which I believe there is) that right may be limited to preclude certain classes of individuals from owning ANY firearms and precluding ALL of us from owning certain classes of firearms (or cannon, tank or nuclear device).

Read the conversation that I replied to - RW specifically brought up the militia.

Ok. Sorry. RW should not inject militia.

This may be of interest.


A variety of laws regulating firearms were already in place during


the Founding Era. Militia regulations were the most common form of

laws pertaining to firearms. 7 Such laws could be quite intrusive,

allowing government not only to keep track of who had firearms, but

requiring them to report for a muster or face stiff penalties."'

Regulations governing the storage of gun powder were also

common."9 States prohibited the use of firearms on certain occasions

and in certain locations. 2° A variety of race-based exclusions

disarmed slaves, and in some cases, free blacks. 2' Loyalty oaths also

disarmed portions of the population during the Founding Era.12
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4021&context=flr

And there were laws endorsing religion as well.

During the founders time, the constitution limited the federal government but the states were free to completely ignore it. Then we realized that was idiotic and the fourteenth amendment was born.

Now states are not allowed to take away your rights just because they want to. That was a MASSIVE and GLARING hole in the founders new government.

 

[C_Clayton_Jones]

Because although inalienable, our rights are not absolute, and subject to reasonable restrictions by government, including the rights enshrined in the Second Amendment.

Didn't even read the OP, did we?

Wrong again.

At least you're consistent at being wrong.

 

[FA_Q2]

I want to talk about why there are no stated exceptions to the 1st Amendment rights, and yet we have clearly allowed exceptions,

Feel free to open another thread on that subject.

But kindly stop trying to hijack this one.

Actually the question is relevant and on-topic.

As with the First Amendment, the Second Amendment is not absolute – both are subject to reasonable restrictions by government.

One Amendment is not 'superior' to another, or entitled to 'special treatment' by the judiciary; one may not shout Fire in a crowded theater, a reasonable restriction by government – as is prohibiting convicted felons from possessing firearms.

To an extent.

There is a serious problem that we have in this nation when we jail people and allow them to serve their debt to society and yet continue to violate their rights. If you have served your time, why are we still punishing those individuals?

 

[FA_Q2]

It does say....A well regulated militia being necessary for a free state

A "condition" debunked many times on this forum. Apparently little rightwinger thinks enough time has gone by that he can try to fool people into thinking it's true again.

How do you view our gun policy and second amendment? | Page 4 | US Message Board - Political Discussion Forum

I know, I know

If the founders had wanted to make gun rights absolute they could have written it as such

The right to bear arms shall not be infringed PERIOD
They did not

Actually, they ere very clear that it is a right retained by the people.

People such as yourself don't give a damn though - you continue to demand that the militia is a requirement to bear arms when it is clear that the plain language of the second does not insinuate that in the slightest. The courts have directly addressed this and found the idea lacking.

The courts?

You mean you only referr to a legal decision when it supports your opinion. What about the absolute wording of the document?

I understand what a well regulated militia is

It is HIGHLY likely that you do not. Even if you did, you are twisting the plain language. It is blatant and yet you are still able to imagine that it says something entirely different.

It does not matter what the founders wrote in the constitution - if it against your agenda you can find a way to misread it.

 

[FA_Q2]

"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."

versus

"The right of the people to keep and bear Arms shall not be infringed."


Why did the Founders put all those words and commas in there unless they had some effect?

Because they DO have a purpose - just not one that connects the right to firearm with service in the militia. Instead, the militia is denoted as NECESSARY and the right to bear arms for the INDIVIDUAL is an integral part of the existence of the militia. The former requires the latter, not the other way around.

 

[C_Clayton_Jones]

LITTLE-ACORN SAID:

"I've noticed that when people can't make an argument about what the Amendment says, they change the subject and try to talk about what the Courts say instead. Even when the Court statement flatly contradicts what the Amendment says.

When the Courts say one thing and the Constitution says another, which one should prevail?"

Nonsense.

It was the original intent of the Framers that the courts would determine what the Constitution means, to uphold measures that comport with Constitutional case law, and invalidate those repugnant to the Founding Document.

Court rulings concerning the constitutionality of a given measure are exactly what the Constitution says.

The Constitution is not a 'cafeteria plan,' you can't accept only the parts you like and discard the rest.

The Constitution is not like the bible or other texts of religious dogma, open to personal interpretation and subjective inference; all perceptions of the Constitution are interpretation, including the most 'literal,' 'strict-constructionist,' 'constitutionalist' perception of the Constitution is subjective interpretation – hence the wisdom of the Framers to authorize the Judicial branch to determine the meaning of the Constitution, and to make those determinations the supreme law of the land.

 

[SuperDemocrat]

It does say....A well regulated militia being necessary for a free state

It just declare a sentence. What is the purpose of that sentence? It's a literal term that doesn't imply anything.

 

[Ravi]

It does say....A well regulated militia being necessary for a free state

It just declare a sentence. What is the purpose of that sentence? It's a literal term that doesn't imply anything.

It just declare a sentence! You ungrammatical fucktard.

 

[rightwinger]

It does say....A well regulated militia being necessary for a free state

It just declare a sentence. What is the purpose of that sentence? It's a literal term that doesn't imply anything.

The people who wrote it were lawyers. They struggled over ever sentence. If they wanted to give an absolute right to bear arms they would simply say.......The right to bear arms shall not be infringed...PERIOD

 

[Little-Acorn]

LITTLE-ACORN SAID: "I've noticed that when people can't make an argument about what the Amendment says, they change the subject and try to talk about what the Courts say instead. Even when the Court statement flatly contradicts what the Amendment says. When the Courts say one thing and the Constitution says another, which one should prevail?"

Nonsense.

TRANSLATION: I can't answer the question. Or, I don't dare answer it. Because I can't admit my agenda requires violating the Constitution as written and amended.

 

[Bob Blaylock]

Whoa, the militia clause is not part of this debate. Rather, assuming there is a personal right (which I believe there is) that right may be limited to preclude certain classes of individuals from owning ANY firearms and precluding ALL of us from owning certain classes of firearms (or cannon, tank or nuclear device).

The very first gun control laws, in this nation, were, in fact, aimed at “certain classes of individuals”, namely, black people. In fact, that was the purpose of nearly all gun control laws, up to the point where criminal gangster-turned-politician Timothy Sullivan authored and successfully got passed the progenitor of all modern gun control laws, that bears his name, which was very specifically intended to protect the interests of his own criminal gang against that of rival criminal gangs, and of law-abiding citizens on whom his gang wanted to prey.

 

[Little-Acorn]

If they wanted to give an absolute right to bear arms they would simply say.......The right to bear arms shall not be infringed...PERIOD

Instead they said....... Since an armed and capable populace is necessary for freedom and security, the right to bear arms shall not be infringed... PERIOD.

In other words, they said exactly what you just said. And they added an explanation why.

Thanks for agreeing that the right of the people to keep and bear arms, is an absolute right.

One liberal down, nine hundred ninety-nine more to go.

 

[ChrisL]

It does say....A well regulated militia being necessary for a free state

It just declare a sentence. What is the purpose of that sentence? It's a literal term that doesn't imply anything.

The people who wrote it were lawyers. They struggled over ever sentence. If they wanted to give an absolute right to bear arms they would simply say.......The right to bear arms shall not be infringed...PERIOD

Of course you know that is exactly what they meant. The "militia" part was due to the fact that they expected every able bodied person to be armed and ready. They had just fought a war and what helped them win were exactly those tactics. Just regular people defended their communities against invaders.

 

[Agit8r]

The 2nd amendment does not say "Except for felons" or "Except as provided by law". Why not?

The 4th amendment bans searches and seizure, but not all of them: It specifically names unreasonable searches and seizures.

The 5th amendment says that no one can be jailed or executed etc... but makes an exception: unless there is "due process of law".

Even the 13th amendment that prohibits slavery or involuntary servitude, makes an exception: "except as a punishment for crime whereof the party shall have been duly convicted."

But the 2nd amendment, which forbids government from taking away or restricting our right to keep and bear arms, is conspicuously devoid of any such language. As written, it permits NO exceptions or "reasonable restrictions". Period.

Why?

There's an important characteristic of the people's right to keep and bear arms, which might explain why the 2nd is written without qualifications. It says "Since X is so, the people's RKBA cannot be taken away or restricted." Unlike the 4th, 5th, and 13th, the 2nd does NOT say "except by due process of law". And it does NOT say "unless the person is a certain type of extreme criminal", and etc.

To make up an extreme example, suppose some guy goes into a restaurant, pulls out a gun and blows away half a dozen people. The cops show up and surround him, and one cop says, "Give me your gun right now." The guy says, "Sorry, the 2nd amendment says my right to KBA cannot be taken away or restricted, PERIOD, so you have no authority to make me give you my gun." And this with gunsmoke in the air and bodies bleeding on the floor next to him.

Many of the people who wrote the 2nd were lawyers, and knew well the effect that certain words have when included, or omitted, from legislation. And yet they chose to omit ANY exceptions to the ban on government taking people's guns away. Strictly speaking, that would even include the extreme example I just gave: Cops can't take away the gun of a murderer at the scene of his crime.

Many people use this as the reason why the 2nd amendment MUST have been intended to implicitly allow for exceptions: It's impossible that the Framers could have intended for murderers to retain their weapons immediately after committing their murders. Yet a truly strict reading of the 2nd, forbids any govt official (including police) from taking the mass-murderer's gun.

So what could the Framers' intention have been, in omitting any exceptions?

Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons. And the foremost reason it's forbidden, is so that the people can use them against government itself, if/when the government becomes tyrannical. And the Framers knew that if government were given even the tiniest exception, there would be a tendency to turn that tiny loophole into more and more twisted, warped excuses to take guns away anyway, far beyond the "reasonable" exception of being able to take away a mass-murderer's gun at the scene of his crime.

The only way the Framers could find of avoiding the far-greater evil of a tyrannical government disarming its people, was to make NO EXCEPTIONS WHATSOEVER to an explicit ban on government disarming even one of us.

So where does that leave us on the question of the cops taking the mass murderer's gun at the restaurant?

It's inconceivable that the Framers would want the murderer to retain his gun even as they haul him off to jail.

But it's VERY conceivable that the Framers would want government to have NOT THE SLIGHTEST EXCUSE, NO MATTER HOW "REASONABLE", to take away the weapons of their populace in general. Because the slightest excuse, the tiniest exception, could be stretched into a huge loophole. And the Framers regarded a government that could somehow finagle its way into disarming its own people, as a far greater threat than the occasional murderous nutcase in a restaurant.

And history has proven the Framers right, time and again.

Should we amend the Constitution, changing the 2nd amendment to officially empower government to take away the right of, say, murderers, to own and carry guns?

Some would think it's obvious that we should, to make the law "really" right. But consider the potential cost.

My own guess is, the Framers intended for an exception to be made in such a case... but not by any government official. The restaurant mass-murderer tells the cops they have no power to take his gun. The cop responds by cracking the guy's skull, hard, and taking away his gun anyway. Did the cop violate the strict words of the 2nd amendment by doing so? Yes. But is there a jury in the world that will convict the cop for it? Probably not.

The Constitution puts the ultimate fate of anyone accused of breaking laws, into the hands of a JURY. A groupd of the accused guy's own peers, people pretty much like him. NOT government officials. And that was so the only people who can find, or even invent, exceptions to the law, are ordinary civilians: the ones on the jury. Today this is called "Jury Nullification". And I suggest that this is exactly what the Framers had in mind when the wrote the 2nd amendment with NO exceptions and NO "reasonable restrictions" on guns and other such weapons.

The 2nd amendment is a restriction on GOVERNMENT. But not on a jury.

So when the murderer from the restaurant brings charges against the cop for taking away his gun, the cop gets a chance to explain to a JURY why he did it. His explanation will probably take less than ten seconds. And the jury (whose members wouldn't be there if they hadn't been accepted by the cop) will certainly decide that the cop should not be found guilty of violating the clear language of the 2nd, in that case. Because the JURY (and nobody else) has the power to make "reasonable exceptions".

But at the same time, when government makes the slightest move toward disarming even a little of its populace by legislation, they can be met with the absolute, no-exceptions ban codified by the 2nd amendment. No loopholes, no "reasonable exceptions", no nothing. ANY legislation that infringes on the absolute right to KBA, is unconstitutional. Period.

I suspect that's how the Framers expected this particular law to work.

Can I prove it? No. When I meet one of the Framers, I'll ask him. Until that time, I can only guess, based on the records they have left behind... and the fact that they put NONE of the usual qualifiers, into the 2nd amendment. If anyone can come up with a better guess, I'd be happy to hear it.

Obviously the original intent of the Second Amendment was a collective right of "the people" acting in concert together. We know this because the technology available at the time offered no individual power of gun ownership. With one shot, then 30+ seconds to reload (for a well trained soldier), obviously no one person could protect oneself from "tyranny" as some people today seem to suppose.

Now of course the Supreme Court has recognized a right to individual ownership of weaponry by their decision in Heller. That decision also made qualification upon the right:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
-- Antonin Scalia; from District of Columbia v. Heller

 

[rightwinger]

It does say....A well regulated militia being necessary for a free state

It just declare a sentence. What is the purpose of that sentence? It's a literal term that doesn't imply anything.

The people who wrote it were lawyers. They struggled over ever sentence. If they wanted to give an absolute right to bear arms they would simply say.......The right to bear arms shall not be infringed...PERIOD

Of course you know that is exactly what they meant. The "militia" part was due to the fact that they expected every able bodied person to be armed and ready. They had just fought a war and what helped them win were exactly those tactics. Just regular people defended their communities against invaders.

Very true

They had just fought a war and understood the need for a well regulated militia....not just a bunch of armed gun nuts

 

[ChrisL]

It does say....A well regulated militia being necessary for a free state

It just declare a sentence. What is the purpose of that sentence? It's a literal term that doesn't imply anything.

The people who wrote it were lawyers. They struggled over ever sentence. If they wanted to give an absolute right to bear arms they would simply say.......The right to bear arms shall not be infringed...PERIOD

Of course you know that is exactly what they meant. The "militia" part was due to the fact that they expected every able bodied person to be armed and ready. They had just fought a war and what helped them win were exactly those tactics. Just regular people defended their communities against invaders.

Very true

They had just fought a war and understood the need for a well regulated militia....not just a bunch of armed gun nuts

No, they didn't want a government controlled army. They were totally against that. They wanted citizens to be armed and members of the militia.