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Matthew McCallum
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Posted: 02 August 2010 at 1:10pm | IP Logged | 1  

Michael Penn wrote: Soon after ratifying the [Second] Amendment and sending it to the states, Congress passed the first Judiciary Act, which limited federal jurisdiction in diversity cases to those contests at least five hundred dollars, so the Twenty Dollars Clause was mooted before it was ratified by the states.

Darn it, Michael, you gave away the game too soon!

The point was going to be -- after asking Michael Abbey to pick curtain 1, 2 or 3 -- that, sorry, the correct answer was the colourful box in the aisle. Sometimes the American Experience is a fast moving river, and there's an example of a constitutional provision that was out-of-date before it got enshrined.

And thus, if we can accept the premise that parts of the Constitution can become outdated that quickly, it should not be difficult to accept that an Amendment put in place to facilitate a Militia becomes outdated when the Militia becomes obsolete.



Edited by Matthew McCallum on 02 August 2010 at 1:42pm
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Matthew McCallum
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Posted: 02 August 2010 at 1:14pm | IP Logged | 2  

A Detailed Reply To Michael Abbey:

There is certainly evidence that the government can call up the militia, and it's actions directed by the President when it is. But is that evidence that the government can restrict the rights of gun ownership except is service to the government? I don't think so.

Again, Michael it comes down to why "the Militia" was specifically mentioned in the Amendment. Why reference it at all if the intent was for the people to protect their person and their property by guns? Or, perhaps more revealingly, why was Militia referenced instead of person and property?

The Bill of Rights were further safeguards against the power that government could wield over the people. It seems oddly against the spirit of it that they would throw in a restriction on the people. It is called the Bill of Rights, not the Bill of Nine Rights and One Restriction.

Not all rights granted are absolute rights valid all of the time. For example,

  • the Third Amendment has the phrase "...but in a manner to be prescribed by law" during wartime. So you have one set of rights during, another during wartime.
  • the Fourth Amendment has the phrase "...but upon probably cause..." and details the process where this right can be restricted.
  • the Fifth Amendment has the phrase "...except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..." Again, you have one set of rights as a civilian, another if you are engaged in the military.

The very rights themselves are granted with restrictions.

Even if you argue that the sole reason that the Founders wanted people armed, was to use them in service to the government when the militia was called up (which again seems against the spirit of everything they were doing), they unfortunately designated that the right resided with the people, and declared it could not be infringed upon.

I don't know how you conclude such in interpretation to be "against the spirit of everything they were doing" as the Bill of Rights clearly lays out rights as well as restrictions on those rights. It seems in that context the right to keep and bear arms is within the context of a well regulated Militia.

As for the declaration "it could not be infringed upon", to quote usconstitution.net:

In the context of the Constitution, phrases like "shall not be infringed," "shall make no law," and "shall not be violated" sound pretty unbendable, but the Supreme Court has ruled that some laws can, in fact, encroach on these phrases. For example, though there is freedom of speech, you cannot slander someone; though you can own a pistol, you cannot own a nuclear weapon.

Would you agree with that assessment, or do you see the phrase shall not be infringed in a more absolute sense?



Edited by Matthew McCallum on 02 August 2010 at 1:43pm
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Michael Penn
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Posted: 02 August 2010 at 1:25pm | IP Logged | 3  

Mea culpa, Matthew!

(The following is not a specific knock against Mr. Abbey --) In any event, it seems that Inherent Gun Rights activists wouldn't be deterred by looking at the history of other constitutional provisions because even the history of "gun rights" is not on their side. Just as pre-Heller scholarship definitively showed the Second Amendment did not protect a right to armed individual self-defense, post-Heller scholarship affirms this to be true.
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John Byrne
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Posted: 02 August 2010 at 1:44pm | IP Logged | 4  

…though you can own a pistol, you cannot own a nuclear weapon.

••

I wonder if that's because it might go off accidentally and kill people.

Which, of course, never, ever happens with guns.

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Geoff Gibson
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Posted: 02 August 2010 at 1:46pm | IP Logged | 5  

…though you can own a pistol, you cannot own a nuclear weapon.

Which is why I can never get the Flux Capaciter to work!

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Matthew McCallum
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Posted: 02 August 2010 at 1:52pm | IP Logged | 6  

It's more likely they don't have a good permitting process in place yet, JB, but it's only a matter of time. This is, after all, the United States.

"I NEED this low-yield nuclear device to protect my home. Anybody who breaks into my house to rape my wife and steal me blind will get the surprise of his life when I whip out my nuke!"

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Andy Williams
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Posted: 02 August 2010 at 2:13pm | IP Logged | 7  

JB said:

Anyway, the question remains the same. In the past 30 years 100,000 kids have been killed paying for the "right to bear arms". When does that price become too high? 200,000? 500,000? 1,000,000?
******
1 child's life lost is too high a price to pay for anything.  If you could assure me that giving up my right to bear arms would stop the next 100,000 children from dying then I'd give it up in a heart beat.  The sad thing is that you can't assure me that.  You can use the "no guns = no deaths" argument but that's based on the assumption that EVERYONE would give up their guns, legally owned and illegally owned, and that's never going to happen.  Enact all the laws you want...people will still get guns.  All the laws would do, IMHO, is weed out the responsible, educated (gun safety education...not school), legal owners and the majority of the guns on the streets and in homes would be owned by those who don't give a damn one way or another about education or safety or laws or lives.

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Stephen Robinson
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Posted: 02 August 2010 at 7:48pm | IP Logged | 8  

…though you can own a pistol, you cannot own a nuclear weapon.

••

I wonder if that's because it might go off accidentally and kill people.

Which, of course, never, ever happens with guns.

**********

SER: I've argued that if you want to support the second amendment without acknowledgment that time has passed, then the "arms" referenced in the amendment must refer only to the arms available at the time.

Seriously, the Founders would have had no way of predicting weapons that an untrained person or even an untrained child could not just use but use effectively.

I mean, the "arms" referenced in the second amendment were the same "arms" used to fight wars. Apply that to modern times and should we interpret the second amendment as allowing citizens access to tanks and nuclear weapons? Of course not. That would be absurd. Just as it's absurd to interpret the second amendment as literally as some do.
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Michael Roberts
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Posted: 02 August 2010 at 8:24pm | IP Logged | 9  

All the laws would do, IMHO, is weed out the responsible, educated (gun safety education...not school), legal owners and the majority of the guns on the streets and in homes would be owned by those who don't give a damn one way or another about education or safety or laws or lives.

---

Gun safety education and responsible storage of guns become meaningless when the owner is depressed or angry.

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Stephen Robinson
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Posted: 03 August 2010 at 12:18pm | IP Logged | 10  

http://news.yahoo.com/s/ap/20100803/ap_on_re_us/us_beer_dist ributor_shootings

It just continues.

And this is a good example of how an untrained person with a knife or even an axe could not do this amount of damage before being stopped.
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John Byrne
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Posted: 03 August 2010 at 12:27pm | IP Logged | 11  

If you could assure me that giving up my right to bear arms would stop the next 100,000 children from dying then I'd give it up in a heart beat.

••

You, and you alone. giving up your right to bear arms, would have absolutely no effect.

But you knew that.

How many children died while you wasted our time with that dodge?

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Brad Krawchuk
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Posted: 03 August 2010 at 1:13pm | IP Logged | 12  

And this is a good example of how an untrained person with a knife or even an axe could not do this amount of damage before being stopped.

---

Heck, nevermind being stopped. If he was using an axe or a knife, people could have run away. It's not like those things are lethal at 15 feet. 


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