The Right To Bear Arms

[legaleagle_45]

[Exceptions which, again, are found nowhere in the 2nd amendment nor anywhere else in the Consitution..

Correct, but then again, there is nothing in the Constitution that limits the 1st Amend right of freedom of religion so that human sacrafice can not be banned. Is it your understanding that the 2nd protects a right that preexisted the Constitution? If so, is the right protected to be understood as protecting what that preexisting right protected, and including therein such exceptions and restrictions which formed the basis of that preexisting right? After all it is the preexisting right which "shall not be infringed", not "we are creating a brand new right that prevents governmental interfrence of any nature, kind and sort in the private ownership of weapons"

[The 2nd says that no government can restrict the private ownership or usage of weapons. Period..

Incorrect. The 2nd protects the private ownership of arms, which is a subset of weapons.

[BTW, Aymette is based on state law, not the U.S. Constitution, which trumps state law..

Agreed and I have some major problems with it's recitation of history, however, the problem is that Miller specifically cites it as authority in the most crucial portion of their decision, thus we can not not ignore it.

 

[legaleagle_45]

The Constitution did not incorporate Thomas Jefferson’s ideas expressed in the Declaration of Independence; .

Incorrect... the ideal of the social compact is expressed in the first few words of the the Constitution itself and the unalienable rights of life, liberty and property are specifically protected in the 5th amend.

 

[Nemo]

Bloomberg Law - Document - Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), Court Opinion

Petition DENIED.

 

[M14 Shooter]

Bloomberg Law - Document - Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), Court Opinion
Petition DENIED.

You cannot possibly dscribe how that is meaningful in any way.

 

[Nemo]

Had you taken the time to read the decision you would know (as I told you before) that the rights secured by the Second Amendment are not unlimited, but subject to law. Now you will see just how limited those rights can be defined. Get used to it.

 

[legaleagle_45]

Bloomberg Law - Document - Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), Court Opinion

Petition DENIED.

Moore v. Madigan

MOORE v. MADIGAN, Nos. 12?1788, 12?1269., December 11, 2012 - US 7th Circuit | FindLaw

Any questions?

 

[legaleagle_45]

Had you taken the time to read the decision you would know (as I told you before) that the rights secured by the Second Amendment are not unlimited, but subject to law. Now you will see just how limited those rights can be defined. Get used to it.

If you can name any person who claims that the 2nd amend is unlimited, you might have a point. For example, I have never ever found a 2nd Amend advocate that believed that persons incarcerated in prison have the right to keep and bear arms while they are in prison, even though prisons are dangerous places. On the other hand, people who like to trot out that strawman invariably tend to believe that "not unlimited" is equivalent to "non existent".

 

[Nemo]

The Seventh Circuit decision in Moore v. Madigan is not persuasive or even binding precedent as court ordered that mandate be stayed “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.” (You can bet it will be carefully crafted and narrowly construed.) Also, the handwriting is on the wall, as the decision was rendered prior the Supreme Court denying cert in Kachalsky v. County of Westchester which involved “one of the nation’s most restrictive such laws”.

 

[legaleagle_45]

The Seventh Circuit decision in Moore v. Madigan is not persuasive or even binding precedent as court ordered that mandate be stayed “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”

It is in fact binding precedent. The mandate has been stayed to allow Illinois to draft a law allowing CCW, otherwise there would be no restriction whatsoever on carrying firearms in Illinois. .. so you assertion that it is not "binding or persuasive" is totally absurd.

Also, the handwriting is on the wall, as the decision was rendered prior the Supreme Court denying cert in Kachalsky v. County of Westchester which involved “one of the nation’s most restrictive such laws”.

LOL, you realize that the denial of cert has no precedential value whatsoever? In fact most commentators were expecting that the court would deny cert there so as to take up the issue in Moore v Madigan... because while New York laws are very restrictive, Illinois did not allow it at all. Moore v Madigan is a much cleaner case involving a single issue for review. You do not know too much how SCOTUS operates, huh?

 

[Nemo]

Is the decision "ripe" for appeal? No. The handwriting is on the wall - read it.

 

[legaleagle_45]

Is the decision "ripe" for appeal? No. The handwriting is on the wall - read it.

Yes the decision is ripe for appeal.... next.

 

[Quantum Windbag]

Had you taken the time to read the decision you would know (as I told you before) that the rights secured by the Second Amendment are not unlimited, but subject to law. Now you will see just how limited those rights can be defined. Get used to it.

I am supposed to ignore over 400 years of history and jurisprudence simply because you are too stupid to poor water out of your boot?

 

[Quantum Windbag]

Is the decision "ripe" for appeal? No. The handwriting is on the wall - read it.

Is this supposed to make sense?

 

[legaleagle_45]

Is the decision "ripe" for appeal? No. The handwriting is on the wall - read it.

Is this supposed to make sense?

The "ripe for appeal" issue makes sense and is whether there exists a binding final decision on the merits which can be appealed to a higher court. The answer to that issue is clearly yes, since there was already an appeal of the 7th Cir 3 judge panel decision for en banc review (where an expanded panel of 7th Circ appealate judges would hear the case). The 7th Circ denied en banc review on Feb 22, 2013. Illinois has 90 days from Feb 22, 2013 to file a petition for cert with SCOTUS. They most assuredly will file a petition for cert. (or ask for an extension) within that time frame... and I would be surprised if SCOTUS did not grant cert.... Case would be heard next term which begins in October 2013. Current term ends in the last part of June 2013 so there would be no time this term to brief it and hold oral arguments.

The part about "handwriting on the wall" is wishfull thinking by Nemo who obviously has no idea how SCOTUS operates..

 

[Little-Acorn]

If you can name any person who claims that the 2nd amend is unlimited,

The 2nd amendment does not say "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 with his billy club, 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. If anyone can come up with a better guess, I'd be happy to hear it.

 

[M14 Shooter]

The Seventh Circuit decision in Moore v. Madigan is not persuasive or even binding precedent as court ordered that mandate be stayed “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.” (You can bet it will be carefully crafted and narrowly construed.) Also, the handwriting is on the wall, as the decision was rendered prior the Supreme Court denying cert in Kachalsky v. County of Westchester which involved “one of the nation’s most restrictive such laws”.

Clearly, you just move your ass and words fall out.
None of this has any discnerable meaning to anyone that knows anything about the subject.

 

[legaleagle_45]

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

Because the 2nd amend protects a preexisting individual right to arms first codified in the English Bill of Rights in 1689, but which had life and substance even before that. Thus the right which "shall not be infringed" is itself subject to limitations which existed prior to the passage of the 2nd. It is not so much "limiting second amend rights" but determinining what exactly is the "right to keep and bear arms" which shall not be infringed.. One of those limitations was the disqualification of persons convicted of a felony. They were considered "civilly dead" as a consequence of their felony conviction and stripped of many of their civil rights, including the right to vote, the right to sit on a jury and the right to arms. Minors and the mentally insane also did not have the same civil rights as others and could not even legally own property... they had to act by ad through a conservator or guardian. The statute of Northhampton forbade the carrying of dangerous and unusal weapons. Similarly, arms at common law were single man portable and use weapons designed for man on man combat... thus the 2nd does not protect ownership of ordinance such as nukes...

In short, I am not infringing upon the right... I am determining the nature and the scope of that right as it existed at the time the 2nd was written. It is that right which shall not be infringed.

As written, it permits NO exceptions or "reasonable restrictions". Period.

Do you believe that persons incarcerated in prison have the right to keep and bear arms while they are in prison? After all, prison is a dangerous place... If you do, then you are at least consistant, but we have nothing further to discuss as I do not intend to argue that point. However, if you do believe that persons incarcerated in prisons can be legally denied access to guns, then you have made your first exception to an unlimited right.

Because the JURY (and nobody else) has the power to make "reasonable exceptions".

Why? Where in the 2nd does it say "the right to keep and bear arms shall not be infringed by anyone other than a jury"? That certainly is not in my version of the Constitution.

 

[Little-Acorn]

Do you believe that persons incarcerated in prison have the right to keep and bear arms while they are in prison?

Read what I wrote.

 

[legaleagle_45]

Do you believe that persons incarcerated in prison have the right to keep and bear arms while they are in prison?

Read what I wrote.

I did. You opined that a mass murderer could be disarmed because a jury would not rule in his favor. That was non responsive to a more general query involving all prisoners and espescially those who have been convicted of non violent behavior.

But most importantly it fails to explain where in the 2nd amend the words "except if a jury decides otherwise" appear.

Further, can you cite even one case in the history of the world where a jury was actually asked to make a determination that an accused prisoner or a convicted prisoner be disarmed or remain disarmed?

 

[bendog]

This is a unique reading by Acorn. Consider the milita clause, which I think Scalia correctly views as a historical anachonism but illustrative of what the framers had in mind. Eagle is correct that the 2nd codified English common law, and as Scalia opinied the milita clause gave if fuller weight in that not only could citizens defend themselves, but the militias were necessary to defend freedom from a feared tyrannical central govt that would refuse to give up power even if it lost a vote.

The right to arms was specifically denied non citizens and more importantly is is only justified by self-defense and (possibly) hunting. Though at English law, there was no hunting the King's animals.

the ban on felons is premised upon their giving up their right to self defense when they prey upon law abiding folks.