Free Speach?

[jcd11235 0]

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For the reasons I've put down. The 2nd amendment as it is written just doesn't fly with modern weaponry. You'll never be able to get enough support to have it re-written so it needs to be very, very, very creatively read and re-interpreted.

Judges have been interpreting it as a collective right for over a century. I seriously doubt that is due to creative reading and re-interpretation. That highlights the fact that the 2nd Amendment is ambiguous.

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That the majority of the federal circuits do not interpret it in the manner you claim to be the only reasonable interpretation, I can't help but to conclude that you are arguing with emotion rather than reason.

What emotion? I'm not in favour of people being allowed to own whatever weapons they want, but I do think that's what the 2nd says.

Then why the refusal to acknowledge facts? Or do you just not understand the definition of ambiguous? If other people think the 2nd means something other than what you think it means, and many judges have interpreted it differently than you in the past 100 plus years, then that means it is ambiguous. That is what ambiguous means. Why is that so difficult to understand?

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[kelpdiver 2]

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Judges have been interpreting it as a collective right for over a century. I seriously doubt that is due to creative reading and re-interpretation. That highlights the fact that the 2nd Amendment is ambiguous.

The hell they have.

Your confusion over the facts does not make it ambiguous. The draft Constitutions, the Federalist Papers, and the writers of the drafters are quite clear in the initial intent. The only ambiguiety would like in the scope of "arms." Though Miller is often cited as a defeat of the defendant's right to the sawed off shotgun, the full story is that he would have been given an opportunity the merits of the shotgun in battle, had he still been alive by the time of the Supreme Court decision. But he wasn't, so it ended there.

There is very little case law on the 2nd Amendment, which tells us more about how unclear it actually is. The 1st Amendment has had much more fighting over what it means, despite rather clear language.

[kelpdiver 2]

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On a different note, what's the Constitutional basis for making kids pledge allegiance in the first place? I've always thought the very idea flies in the face of America's proud history of permitting and protecting dissent, and of promoting individualism.

Loyalty oaths are still required for all California state employees. Why would kids be any different? The Cold War and McCarthyism had some nasty consequences. (that's also when a reference to god was added to the pledge) By now, it's turned into a ritual, like the Lord's Prayer.

So...kids can write about how silly the pledge is...after saying it.

[kelpdiver 2]

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I think the reason that people 'interpret' it differently is because weaponry has progressed to such a degree that free and unrestricted access to whatever kind of weapons you want is no longer practical. Therefore (since there wouldn't be a hope in hell of changing it) they need to be able to interpret the 2nd to say something other than what it actually says.

Weapons haven't changed significantly. The Colt 1911 has been used by the military since...yes, 1911. Still a design favored by many. New pistols rounds have come, and polymers are used in place of steel, but not much change in handguns, the most attacked element of gun ownership.

What's changed is the level of gun ownership and hunting among Americans, giving a bit more traction to would be gun controllers. The ignorant will believe more lies. Also interesting to note the intertwining of gun control and racists who didn't like blacks enjoying their 2nd amendment rights.

[likearock 2]

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I think the reason that people 'interpret' it differently is because weaponry has progressed to such a degree that free and unrestricted access to whatever kind of weapons you want is no longer practical. Therefore (since there wouldn't be a hope in hell of changing it) they need to be able to interpret the 2nd to say something other than what it actually says.

Weapons haven't changed significantly.

What? The addition of automatic weapons, RPGs, and flamethrowers are not significant?

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The Colt 1911 has been used by the military since...yes, 1911. Still a design favored by many. New pistols rounds have come, and polymers are used in place of steel, but not much change in handguns, the most attacked element of gun ownership.

So what? The Constitution's second amendment says nothing about the right being restricted to handguns. It doesn't even limit the restriction to firearms (so you could logically interpret a flamethrower as a form of arms).

[rehmwa 2]

In the Leftist Social Experiment called "Minnesota", and particularly in the shool system here, I think it's a positive to hear a school actively revaluating any aspect of a liberal "zero tolerance" policy. But this one is pretty PC based, do they have the guts to reconsider all the unfair ZT policies while they are at it?

Or, MUCH more likely, will this just result in a spate of voter referendums to obtain additional funding (seat cushions) and counseling (so students can come to accept their feelings on the matter), for students who choose to sit out the Pledge.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[christelsabine 1]

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While I have to admit I wonder how these kids are being raised ...

What kind of nonsens is that? Kids are kids, it's well known since centuries that upon reaching puberty, kiddies are trying to revolt against any authority given ...

If "authorities" cannot deal with it - it's their own fault. Idiots, if they need to call for next instance.

dudeist skydiver # 3105

[rushmc 23]

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While I have to admit I wonder how these kids are being raised ...

What kind of nonsens is that? Kids are kids, it's well known since centuries that upon reaching puberty, kiddies are trying to revolt against any authority given ...

If "authorities" cannot deal with it - it's their own fault. Idiots, if they need to call for next instance.

While I see your (and to some extent understand and agree with it) point, this is not really what I was speaking to.

Kids are extentions of how they are brought up to some extent. That is all I was saying

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[jcd11235 0]

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The hell they have.

You may want to read the the decision of the 1905 case to which I previously linked.

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Your confusion over the facts does not make it ambiguous.

I'm not confused by the facts.

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The draft Constitutions, the Federalist Papers, and the writers of the drafters are quite clear in the initial intent.

Apparently not, since judges have not yet been able to agree for over a century.

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There is very little case law on the 2nd Amendment, which tells us more about how unclear it actually is.

True, but since it isn't consistent, the reasonable person recognizes the ambiguity.

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[jcd11235 0]

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Loyalty oaths are still required for all California state employees. Why would kids be any different?

For the same reasons other non state employees don't have to take loyalty oaths. Why would they be treated the same?

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[rehmwa 2]

I believe "Free Speach" has a misspelling

it's

"Freeze Peach"

perfectly natural error, I'm sure it happens all the time - at least in the publick skools

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[kallend 2,150]

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I believe "Free Speach" has a misspelling

it's

"Freeze Peach"

perfectly natural error, I'm sure it happens all the time - at least in the publick skools

Surely it's mis-punctuated too. It is a command,
and should be:

"Freeze, Peach!"

...

The only sure way to survive a canopy collision is not to have one.

[billvon 3,120]

> I believe "Free Speach" has a misspelling

No, that's correct. It's part of the Bill of Riaghts. Also includes things like Freedom of Woarship.

[skydyvr 0]

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No, that's correct. It's part of the Bill of Riaghts. Also includes things like Freedom of Woarship.

You three guys are just plain meen.

. . =(_8^(1)

[jcd11235 0]

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Also includes things like Freedom of Woarship.

So can individuals keep their own warships, or is it a collective right?

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[mnealtx 0]

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And those rights can be curtailed or modified under certain circumstances - hence all the 2nd Amendment threads.

The reason there is so much debate over Amendment 2 is because it has yet to be interpreted and is worded in an ambiguous manner.

Worded ambiguously? No, not really, despite attempts by many to make it seem so.

Link

Link

If you wish, we can discuss it in another thread - I don't want to further derail this one.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[billvon 3,120]

>So can individuals keep their own warships . . .

Only if they are built in the shape of a bare arm.

[mnealtx 0]

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Judges have been interpreting it as a collective right for over a century. I seriously doubt that is due to creative reading and re-interpretation. That highlights the fact that the 2nd Amendment is ambiguous.

Whoa there, Sparky...

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State v. Blocker, 291 Or. 255, — — — P. 2d — — — (1981).
"The statue is written as a total proscription of the mere possession of certain weapons, and that mere possession, insofar as a billy is concerned, is constitutionally protected."

"In these circumstances, we conclude that it is proper for us to consider defendant's 'overbreadth' attack to mean that the statute swept so broadly as to infringe rights that it could not reach, which in the setting means the right to possess arms guaranteed by sec 27."

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State v. Kessler, 289 Or. 359, 614 P. 2d 94, at 95, at 98 (1980).
"We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision might not seem compelling if debated as a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment."

"Therefore, the term 'arms' as used by the drafters of the constitutions probably was intended to include those weapons used by settlers for both personal and military defense. The term 'arms' was not limited to firearms, but included several handcarried weapons commonly used for defense. The term 'arms' would not have included cannon or other heavy ordnance not kept by militiamen or private citizens."

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Motley v. Kellogg, 409 N.E. 2d 1207, at 1210 (Ind. App. 1980) (motion to transfer denied 1-27-1981).
"[N]ot making applications available at the chief's office effectively denied members of the community the opportunity to obtain a gun permit and bear arms for their self-defense."

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Schubert v. DeBard, 398 N.E. 2d 1339, at 1341 (Ind. App. 1980) (motion to transfer denied 8-28-1980).
"We think it clear that our constitution provides our citizenry the right to bear arms for their self- defense."

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Taylor v. McNeal, 523 S.W. 2d 148, at 150 (Mo. App. 1975)
"The pistols in question are not contraband. * * * Under Art. I, sec 23, Mo. Const. 1945, V.A.M.S., every citizen has the right to keep and bear arms in defense of his home, person, and property, with the limitation that this section shall not justify the wearing of concealed arms."

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City of Lakewood v. Pillow, 180 Colo. 20, 501 P. 2d 744, at 745 (en banc 1972).
"As an example, we note that this ordinance would prohibit gunsmiths, pawnbrokers and sporting goods stores from carrying on a substantial part of their business. Also, the ordinance appears to prohibit individuals from transporting guns to and from such places of business. Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense. Several of these activities are constitutionally protected. Colo. Const. art. II, sec 13."

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City of Las Vegas v. Moberg, 82 N.M. 626, 485 P. 2d 737, at 738 (N.M. App. 1971).
"It is our opinion that an ordinance may not deny the people the constitutionally guaranteed right to bear arms, and to that extent the ordinance under consideration is void."

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State v. Nickerson, 126 Mt. 157, 247 P. 2d 188, at 192 (1952).
"The law of this jurisdiction accords to the defendant the right to keep and bear arms and to use same in defense of his own home, his person and property."

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People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950).
"The second amendment to the constitution of the United States provides the right of the people to keep and bear arms shall not be infringed. This of course does not prevent the enactment of a law against carrying concealed weapons, but it does indicate it should be kept in mind, in the construction of a statue of such character, that it is aimed at persons of criminal instincts, and for the prevention of crime, and not against use in the protection of person or property."

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People v. Nakamura, 99 Colo. 262, at 264, 62 P. 2d 246 (en banc 1936).
"It is equally clear that the act wholly disarms aliens for all purposes. The state . . . cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article II of the Constitution, to bear arms in defense of home, person and property. The guaranty thus extended is meaningless if any person is denied the right to possess arms for such protection."

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Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d 678 (1928).
"There is no qualification of the prohibition against the carrying of a pistol in the city ordinance before us but it is made unlawful 'to carry on or about the person any pistol,' that is, any sort of pistol in any sort of manner. *** [W]e must accordingly hold the provision of this ordinance as to the carrying of a pistol invalid."

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People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922).
"The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the right of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff."

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State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921).
"We are of the opinion, however, that 'pistol' ex vi termini is properly included within the word 'arms,' and that the right to bear such arms cannot be infringed. The historical use of pistols as 'arms' of offense and defense is beyond controversy."

"The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions."

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State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903).
"The people of the state have a right to bear arms for the defense of themselves and the state. *** The result is that Ordinance No. 10, so far as it relates to the carrying of a pistol, is inconsistent with and repugnant to the Constitution and the laws of the state, and it is therefore to that extent, void."

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In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902).
"The second amendment to the federal constitution is in the following language: '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.' The language of section 11, article I of the constitution of Idaho, is as follows: 'The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law.' Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages."

That from a Congressional Report on the Second Amendment. Link

That same report states:
"The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms. Such an "individual rights" interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself. A number of state constitutions, adopted prior to or contemporaneously with the federal Constitution and Bill of Rights, similarly provided for a right of the people to keep and bear arms. If in fact this language creates a right protecting the states only, there might be a reason for it to be inserted in the federal Constitution but no reason for it to be inserted in state constitutions. State bills of rights necessarily protect only against action by the state, and by definition a state cannot infringe its own rights; to attempt to protect a right belonging to the state by inserting it in a limitation of the state's own powers would create an absurdity. The fact that the contemporaries of the framers did insert these words into several state constitutions would indicate clearly that they viewed the right as belonging to the individual citizen, thereby making it a right which could be infringed either by state or federal government and which must be protected against infringement by both.

Finally, the individual rights interpretation gives full meaning to the words chosen by the first Congress to reflect the right to keep and bear arms. The framers of the Bill of Rights consistently used the words "right of the people" to reflect individual rights — as when these words were used to recognize the "right of the people" to peaceably assemble, and the "right of the people" against unreasonable searches and seizures. They distinguished between the rights of the people and of the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia". Indeed, the debates over the Constitution constantly referred to the organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constituted, and indeed were philosophically opposed to, the concept of a militia.

That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for the organizing, arming and disciplining the Militia". 65 This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec. 311(a).

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[jcd11235 0]

You're missing the point, Sparky. I'm not arguing that the Amendment guarantees a collective right. I'm saying that it has not been consistently interpreted by the courts either way. Anyone can cull through the decisions to show just the ones that agree with their view. The fact of the matter is that rulings of both interpretations exist.

In other words, the amendment is ambiguous.

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[mnealtx 0]

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You're missing the point, Sparky. I'm not arguing that the Amendment guarantees a collective right. I'm saying that it has not been consistently interpreted by the courts either way. Anyone can cull through the decisions to show just the ones that agree with their view. The fact of the matter is that rulings of both interpretations exist.

In other words, the amendment is ambiguous.

Incorrect - the court's interpretation of the amendment has been ambiguous to date - hopefully something that DC vs. Heller will correct.

ETA: You really should go read those links I've posted - it may open your eyes.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[billvon 3,120]

>Incorrect - the court's interpretation of the amendment has been ambiguous to date . . .

Here in the US, the court's interpretation of any constitutional issue IS the only valid interpretation of the issue. So far they have been ambiguous, and thus the meaning of the amendment is ambiguous. Hopefully that will change.

[mnealtx 0]

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>Incorrect - the court's interpretation of the amendment has been ambiguous to date . . .

Here in the US, the court's interpretation of any constitutional issue IS the only valid interpretation of the issue. So far they have been ambiguous, and thus the meaning of the amendment is ambiguous. Hopefully that will change.

Excerpts from Senate testimony by Eugene Volokh

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Contemporaneous evidence from the late 1700s and 1800s unanimously supports the individual rights reading of the text. It's widely agreed that the Second Amendment right to keep and bear arms was an expanded version of a similar right in the 1688 English Bill of Rights. England, of course, didn't have states, so the English right couldn't have been a states' right; Sir William Blackstone, whose 1765 Commentaries were tremendously influential in Revolutionary Era America, described the right as a "right of the subject," an obviously individual rights characterization. 6


Many early state Bills of Rights also protected the right to keep and bear arms; since these rights were protections against state governments, they surely must have protected individuals, not the states themselves. And many of the constitutions made this quite explicit. The 1790 Pennsylvania and the 1792 Kentucky Constitutions described the right as "the right of the citizens"; the 1796 Tennessee Constitution spoke of "the right of the freemen"; the 1817 Mississippi, 1818 Connecticut, 1819 Maine, and 1819 Alabama Constitution specifically referred to the right of "every citizen." The 1776 Pennsylvania, 1777 Vermont, 1802 Ohio, 1816 Indiana, and 1820 Missouri Constitutions spoke of "the people['s] right to bear arms for the defence of themselves," referring to the people individually ("themselves") rather than collectively ("itself"). 7 Throughout the 1800s, these unambiguously individual rights were seen as directly analogous to the Second Amendment. 8


The same goes for all the notable constitutional commentators of the 1800s. St. George Tucker (1803) treated the Second Amendment right as equivalent to Blackstone's "right of the subject"; 9 William Rawle (1829) did likewise. 10 Justice Joseph Story (1833 and 1840) called it a "right of the citizens." 11 Thomas Cooley (1880 and 1898) took exactly the same individual right view; 12 so did the 1866 Freedmen's Bureau Act, which specifically secured to "all the citizens" "the constitutional right to bear arms" as part of their "personal liberty." 13 A recent exhaustive study reveals that there was exactly one statement in the 1800s cases or commentaries supporting the collective rights view, a concurring opinion in an 1842 Arkansas state court case. 14

As for court decisions...

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The U.S. Supreme Court has said little about the Second Amendment, but it has certainly not said that the Amendment secures only a collective right.


Throughout the Court's history, the Justices have mentioned the Second Amendment, usually in passing, in 27 opinions. In 22 of these 27, the Justices quoted or paraphrased only "the right of the people to keep and bear arms" language, without even mentioning the Militia Clause. 15


One of the remaining five cases -- and the only extended 20th-century discussion of the right -- is United States v. Miller (1939), which held that the right extended only to weapons that were rationally related to the preservation of the militia. 16 But the Court emphatically did not hold that the right belonged only to the state or the National Guard. Rather, it reaffirmed that the "militia" referred to the entire armed citizenry, and considered on the merits a lawsuit that was brought by an individual (Miller), not by a state.


The only Supreme Court case that leans in the collective rights direction is Lewis v. United States (1980), which summarily rejected an ex-felon's claim of a right to possess a firearm, in passing citing some lower court cases that took a collective rights view. 17 But Lewis could equally well be explained as concluding only that ex-felons don't have a right to keep and bear arms (something that's also been held in the many states whose constitutions unambiguously guarantee an individual right to keep and bear arms). In any event, if one relies on passing mentions, Casey v. Planned Parenthood (1992) (quoting Justice Harlan) in passing described liberty as including "[freedom from] the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on" -- a description that treats the right to keep and bear arms as an individual right on par with the other individual rights. 18


Despite all the above evidence, the federal courts of appeal have unanimously subscribed to the states' right approach, though there are a few recent hints to the contrary in some opinions. 19 If the historical or textual evidence were in equipoise, and if the cases dealt carefully with the evidence and explained why the pro-states'-right evidence was more persuasive than the pro-individual-right evidence, then perhaps we might defer to these courts' views. But when the lower courts' decisions are contrary to the unanimous weight of the evidence, and do not really confront this evidence but rely almost entirely on bald assertions or on citations to other lower court decisions, it seems to me that we must respectfully say that the lower courts are mistaken.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[billvon 3,120]

>Excerpts from Senate testimony by Eugene Volokh

I'll go with the US constitution, thanks.

[mnealtx 0]

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>Excerpts from Senate testimony by Eugene Volokh

I'll go with the US constitution, thanks.

You'll need this, evidently.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[jcd11235 0]

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You'll need this, evidently.

IIRC, he went to a Catholic school for some time. He probably knows what ablative absolute construction is with the help from anyone in the LA school district.

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