Scalia: Guns May be Regulated

[bullseye]

Why does this remind me of Clinton and "is"
http://www.youtube.com/watch?v=j4XT-l-_3y0&feature=player_detailpage

 

[Baikal49]

I sent one of them. I do not think Baikal49 is a troll, he's trying to present a different point of view, getting flamed for it, and being willing to flame back. He's more confrontational than I am, but on the whole I agree with a lot of what he says.

Thanks.

 

[namedpipes]

The First Amendment says "make no law...abridging the freedom of speech".

Are you really going to claim that means Congress and the states are therefore prohibited from making fraud a crime, or allowing people who are slandered to sue for redress? Are you going to claim the Founders (some of whom, by the way, supported the Alien & Sedition Acts only a few years later) thought that?

Clearly "make no law" is not absolute. So why should "shall not infringe" be considered an absolute statement?

I suppose one could argue that "make no law" is absolute, but that fraud or slander isn't "speech". Of course, you can play that same game with the Second Amendment -- "shall not infringe" means exactly what it says, but what does "the right of the people..." mean?

Here is the full original text:

I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

II. 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.

Keep in mind that most people today accept the 1st amendment as an absolute even to the point where some town have kicked out the Boy Scouts from using town hall for meetings, because of the fiction of "separation of church and state.

Read carefully. In I, the directive is: "Congress shall make no law . . .". This says nothing about the States, towns or even private individuals creating laws or rules about who can say what and where. CONGRESS is prohibited from making any such law.

In II, it says very simply: . . . shall not be infringed.

It does not state by whom. It doesn't say: Congress shall not infringe the Right of the People. It doesn't state Neither Congress nor the States shall infringe blah blah. It says very simply: "SHALL NOT BE INFRINGED"

It seems to me, very simply and very powerfully stated. The Right to keep and bear arms is absolute, just as is the Right to Life, Liberty, yada yada yada.

. . . Cannon were and remain legal to own to this day. At no point was the private ownership (keeping and bearing) of tools of war from cannon to warship ruled out.

Scalia's argument is illogical given a textualist view - it is tenuous at best given an originalist view.

Well, my cannon can be handheld... I'm still trying to talk EC into shooting it offhand. He did look tempted last time I mentioned it.

More seriously, there were no weapons of war, of which I'm aware, at the time the Constitution and BOR were written, that were prohibited from private "keeping" and "bearing". Now, maybe it wasn't customary to tow a field artillery piece behind your horse, but I can't see how it is illegal. Heck I saw TWO in a truck last summer on I-93.

How can you read the Constitution and BOR either as a textualist or originalist and draw any conclusion other than the FF really, REALLY wanted us to continue having access to firearms?

 

[Dnotarianni]

Explain to me how Romney will help us again?

Only good thing I can see about Romney is he isn't Obama and presidents don't screw with guns in their first term!
dave

 

[bullseye]

Only good thing I can see about Romney is he isn't Obama and presidents don't screw with guns in their first term!
dave

There's always precedent to be set!

 

[BOBKATT]

presidents don't screw with guns in their first term!
dave

Which term did Bush Sr. ban importing "Assault Weapons"? I'll give you ONE guess (hint hint).

 

[cekim]

How can you read the Constitution and BOR either as a textualist or originalist and draw any conclusion other than the FF really, REALLY wanted us to continue having access to firearms?

This is why I say a textualist reading says "SHALL NOT BE INFRINGED" (with the same caveats of due process that allow you to be incarcerated - i.e. after due process your rights can be abridged).

Further an originalist view shows the attempt to confiscate arms as the spark that touched the revolution - why on earth would they say you could not do what they had just done? Governor Gage (following the crown's orders) ordered them to clear out the armory.

There should be no doubt or debate that the purpose of 2A was to provide for a citizen "irregular" militia which served both in place of a standing state/national defense force as well as a guard against Tyranny.

Scalia is wrong if he says otherwise.

 

[namedpipes]

This is why I say a textualist reading says "SHALL NOT BE INFRINGED" (with the same caveats of due process that allow you to be incarcerated - i.e. after due process your rights can be abridged).

Further an originalist view shows the attempt to confiscate arms as the spark that touched the revolution - why on earth would they say you could not do what they had just done? Governor Gage (following the crown's orders) ordered them to clear out the armory.

There should be no doubt or debate that the purpose of 2A was to provide for a citizen "irregular" militia which served both in place of a standing state/national defense force as well as a guard against Tyranny.

Scalia is wrong if he says otherwise.

I'm getting a little tired of +1'ing you. Could you just once in a while say something stupid?

 

[cekim]

I'm getting a little tired of +1'ing you. Could you just once in a while say something stupid?

Barry for President.

 

[PWM]

I have to say I never expected to see the axiom of choice on NES

this is the most erudite collection of gun nuts in the world!

In fairness, gun nuts or not .. we are still from the New England. Over educated, elitist, mostly rude, but no doubt still blue collar. Which is exactly why everyone hates us (because, yeah.. obviously we are just better).

 

[OfficerObie59]

Keep in mind that most people today accept the 1st amendment as an absolute even to the point where some town have kicked out the Boy Scouts from using town hall for meetings, because of the fiction of "separation of church and state.

Remember there are two separate religious protections in the 1st Amendment: The Establishment Clause and the Free Exercise Clause.

The free exercise clause was meant to protect just that, the free exercise of religion by citizens in the way they chose.

The establishment clause was intitally drawn up to protect the government from the church and government endorsement of religion by the federal government. You point that people take this and go insanely overboard with it is right on the money.

Read carefully. In I, the directive is: "Congress shall make no law . . .". This says nothing about the States, towns or even private individuals creating laws or rules about who can say what and where. CONGRESS is prohibited from making any such law.

Many states actually had official religions for about the first 50 years after the founding. And until 1820 Massachusetts, for example, mandated the Governor be a Christian. No one thought that states didn't have the power to legislate in areas now commonly thought to be protected by the First Amendment.

That's why you then have to go to 1868, when the 14th Amendment was ratified and examine the operative language of the Section 1 text:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

First, you have the doctrine of substantive due process (I've always thought was a contradiction of terms--John Ely famously said the term is akin to "green pastel redness") which comes from the "liberty" clause. How twisted logic can take that sentence and somehow read into it that there are somethings the states can NEVER take away--even though the language reads they can as long as you recieve the process that is due--baffles my mind. Selective incorporation has read the word "liberty" to import the rights within the various amendments to the states, including the First Amendment speech and religion clauses which would otherwise be expressly limited to the Federal government do to its limiting language. And no one, at the time the 14th Amendment was ratified, thought that was the way it should have happened.

In contrast, the Privilges or Immunities Clause is, at least for an orginalist, a much more principled way to incorporate those rights to the states, as both the text and history supports that applying basic American rights unlike the Due Process Clause. Justice Thomas' concurrence in the McDonald case displays this through a thorough reading of history:

Justice THOMAS, concurring in part and concurring in the judgment.

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment "fully applicable to the States." I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment's text and history.

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment's Due Process Clause because it is "fundamental" to the American "scheme of ordered liberty," and "deeply rooted in this Nation's history and tradition." I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to "process." Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause.

McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3058-59 (2010) (citations omitted)

http://scholar.google.com/scholar_case?case=5141154246897960488&hl=en&as_sdt=2&as_vis=1&oi=scholarr

 

[endus]

The establishment clause was intitally drawn up to protect the government from the church and government endorsement of religion by the federal government. You point that people take this and go insanely overboard with it is right on the money.

I could not disagree more. The origin of the term "separation of church and state" is a good place to start to figure out what the founders meant.

I think that rigorous and militant separation of church and state is absolutely essential to our country's future. I also think rigorous and militant protection of the free exercise clause is absolutely essential to our country's future. People seem to think these two things are mutually exclusive...they're definitely not.

 

[cekim]

I could not disagree more. The origin of the term "separation of church and state" is a good place to start to figure out what the founders meant.

I think that rigorous and militant separation of church and state is absolutely essential to our country's future. I also think rigorous and militant protection of the free exercise clause is absolutely essential to our country's future. People seem to think these two things are mutually exclusive...they're definitely not.

I don't think you can support an argument of a requirement that the state be totally devoid of any trapping of religion as many lefties would have you believe.

Again, I am not a fan of organized religions, so these comments come from objectively looking at what was going on in that era. There were secular people, but they were outvoted most of the time.

 

[namedpipes]

Barry for President.

My new signature line!

 

[endus]

I don't think you can support an argument of a requirement that the state be totally devoid of any trapping of religion as many lefties would have you believe.

Again, I am not a fan of organized religions, so these comments come from objectively looking at what was going on in that era. There were secular people, but they were outvoted most of the time.

Some people draw their morality from their religion and to a point I think that's fine and unavoidable. It is always fun to have someone yelling at me how you can't have morals without religion and meanwhile our "religious" leaders don't seem to be doing very well with the whole, "thou shalt not kill" thing...but I digress.

I have no problem with leaders being religious, or celebrating their religious holidays in a public way, wishing the country a merry christmas, whatever. That's the definition of free exercise.

The trouble comes when you start legislating morality based on specific religious views. Gay marriage would be one excellent example. Trying to teach creationism in schools would be another. I think it's equally ridiculous to try and prohibit people from saying merry christmas in schools, but there is a clear and definite distinction between choosing to practice your religion while on state property, and allowing people working for a state institution to teach views which are based solely on religious constructs. Same goes for making laws which are solely based on religious constructs.

 

[Jsfitzgerald85]

If a person is a law abiding citizen, no violent criminal history, there should be no restrictions placed upon him/her PERIOD. The End, have a nice day. Further more when it comes to gun ownership if i want an M2 with 1 billion rounds thats my business as long as i dont infringe on anyone else's rights, NO ONE has any right to tell me i CANNOT own it.

This is of course my opinion

 

[pdm]

Well, my cannon can be handheld... I'm still trying to talk EC into shooting it offhand. He did look tempted last time I mentioned it.

If you get him to do it, make sure you video it and have him say "Say hello to my little friend" before firing it.

 

[crazymjb]

If a person is a law abiding citizen, no violent criminal history, there should be no restrictions placed upon him/her PERIOD. The End, have a nice day. Further more when it comes to gun ownership if i want an M2 with 1 billion rounds thats my business as long as i dont infringe on anyone else's rights, NO ONE has any right to tell me i CANNOT own it.

This is of course my opinion

So should anyone with a clean record be able to have rockets and other explosives unchecked?

Just to make where I stand on this clear. I am fully in favor of allowing private ownership of many more things than we as Americans currently can, but I fully support a means to check up, THOROUGHLY on who is actually going to be getting that stuff. I know some of you guys will strongly disagree with that statement.

Mike

 

[whatluck]

So should anyone with a clean record be able to have rockets and other explosives unchecked?

Just to make where I stand on this clear. I am fully in favor of allowing private ownership of many more things than we as Americans currently can, but I fully support a means to check up, THOROUGHLY on who is actually going to be getting that stuff. I know some of you guys will strongly disagree with that statement.

Mike

Who gets to decide who does and doesn't get to enjoy their rights?

I think even POS gangbangers have the right to protect themselves.

But I also think if you commit a crime with a gun you should go away for pretty much ever.

 

[namedpipes]

So should anyone with a clean record be able to have rockets and other explosives unchecked?

Just to make where I stand on this clear. I am fully in favor of allowing private ownership of many more things than we as Americans currently can, but I fully support a means to check up, THOROUGHLY on who is actually going to be getting that stuff. I know some of you guys will strongly disagree with that statement.

I posted earlier in this thread that I'm troubled with the idea of joe public walking around with a nuke in his back pocket or a sarin capsule in his wallet. In my perfect little world, such things haven't been invented.

On the other hand, for good and sufficient reason, our FF found it necessary to enable the People to equip themselves as they see fit.

A rocket is not a WMD and neither is a block of C4. For that matter, I'd probably rather my neighbor had some C4 than a few sticks of dynamite. There's no question in my mind these things are in line with the 2nd Amendment.

Who gets to decide who does and doesn't get to enjoy their rights?

I think even POS gangbangers have the right to protect themselves.

But I also think if you commit a crime with a gun you should go away for pretty much ever.

Hunting deer at the wrong time of year is a crime that shouldn't be punished "for pretty much ever", for instance, but I get what you mean.

 

[PWM]

Some people draw their morality from their religion and to a point I think that's fine and unavoidable. It is always fun to have someone yelling at me how you can't have morals without religion and meanwhile our "religious" leaders don't seem to be doing very well with the whole, "thou shalt not kill" thing...but I digress.

I have no problem with leaders being religious, or celebrating their religious holidays in a public way, wishing the country a merry christmas, whatever. That's the definition of free exercise.

The trouble comes when you start legislating morality based on specific religious views. Gay marriage would be one excellent example. Trying to teach creationism in schools would be another. I think it's equally ridiculous to try and prohibit people from saying merry christmas in schools, but there is a clear and definite distinction between choosing to practice your religion while on state property, and allowing people working for a state institution to teach views which are based solely on religious constructs. Same goes for making laws which are solely based on religious constructs.

This.

I usually sum it up as, believe whatever the hell you want. So far as you don't use it as an excuse for bad behavior, we're good.

 

[whatluck]

I posted earlier in this thread that I'm troubled with the idea of joe public walking around with a nuke in his back pocket or a sarin capsule in his wallet. In my perfect little world, such things haven't been invented.

On the other hand, for good and sufficient reason, our FF found it necessary to enable the People to equip themselves as they see fit.

A rocket is not a WMD and neither is a block of C4. For that matter, I'd probably rather my neighbor had some C4 than a few sticks of dynamite. There's no question in my mind these things are in line with the 2nd Amendment.





Hunting deer at the wrong time of year is a crime that shouldn't be punished "for pretty much ever", for instance, but I get what you mean.

I think it's debatable whether or not we can even regulate what people kill on their own land and what time of year.

 

[crazymjb]

I posted earlier in this thread that I'm troubled with the idea of joe public walking around with a nuke in his back pocket or a sarin capsule in his wallet. In my perfect little world, such things haven't been invented.

On the other hand, for good and sufficient reason, our FF found it necessary to enable the People to equip themselves as they see fit.

A rocket is not a WMD and neither is a block of C4. For that matter, I'd probably rather my neighbor had some C4 than a few sticks of dynamite. There's no question in my mind these things are in line with the 2nd Amendment.

I'm not necessarily disagreeing with you. But do you think in order to own something like explosives, machine-guns, shoulder fired surface to air missiles, etc, there should be a more stringent check, possibly to include storage facilities, on the buyer?

Mike

 

[namedpipes]

I think it's debatable whether or not we can even regulate what people kill on their own land and what time of year.

I agree. Just pointing out it can technically be illegal (distinctly different from *wrong*).

I'm not necessarily disagreeing with you. But do you think in order to own something like explosives, machine-guns, shoulder fired surface to air missiles, etc, there should be a more stringent check, possibly to include storage facilities, on the buyer?

No.

Explosives? Anyone on this forum is bright enough to find the stupidly simple recipe to make a bomb. Just google it. Heck, look around a little and you'll more than likely find plans for a nuke. Not kidding. A "law" won't stop someone determined to wreak havoc. A block of c4 will sit quietly even if the house burns down around it, until someone inserts a detonator, wires it to a thingyhoosie switch and triggers it.

Machine guns? Come on. Seriously?

Missiles? Not sure the likes of us could afford those. First, just how many crimes have been committed by individuals, using missiles, over the past 50 - 75 years? It isn't a practical weapon for a crook. It can be used in war or rebellion. They've got the war end covered already and if SNHTF and TWDEAWKI the point is moot. And btw, without even looking, I'm pretty sure there is a youtube "how to" to make a missile out of model rocketry gear.

Those three "scary" scenarios are, sorry, just silly to worry about. A little like contemplating banning guns because some ahole shot up a theater 2000 miles away.


eta: It's worth pointing out there are farming uses for explosives, too. Clearing stumps comes to mind.

 

[crazymjb]

Have you seen first hand the difference between military grade and home made explosives? If C4 is more readily available, I would argue that a lot of these mass shootings would end much worse. A lot of people turn to guns for crazy stuff because they aren't capable of making explosives. Those who are methodical enough to do so, do it with devastating results. I'll come right out and say I would fully support strict regulation and monitoring of explosives, but not an outright ban. Making a guided missile on your own isn't as simple as googling it.

I don't subscribe to the founding fathers only had muskets point of view, but they also didn't have weapons that could easily kill hundreds or thousands of people.

Mike

 

[fencer]

So I patiently read all 293 posts and I have to say that there are some very eloquent, well educated folks here on both sides of this argument. For me it is really a simple issue of one group of people, who think they know what is best for everyone, imposing their beliefs on everybody else, and I think that even my 11 year old son and his friends know that it is wrong to do so.

As others have asked, who gets to decide who is worthy and responsible enough to own firearms? Politicians? Judges? Lawyers? Most of those are more dishonest, deceitful and dangerous than the criminals that they would look to disarm. They are just more educated.

Once again we see that those who believe they know what is best for everyone, feel the need to "do something" as the result of a single event, but where does it stop? Will the government someday ban compound bows or just those capable of a certain velocity? Baseball bats or just those of a certain length and weight? I think that these "reasonable" arguments for regulations could culminate in those who know what is best for us deciding that they should regulate how much salt you can use, sugar you can consume and that caffeine leads to aggressive behavior.

How many times must it be shown that regulating guns to curb crime is about as effective as speed limits are at preventing speeding. That will be next. These same people will ask "why does anyone need a car that will go 90 miles per hour?"

 

[namedpipes]

Have you seen first hand the difference between military grade and home made explosives? If C4 is more readily available, I would argue that a lot of these mass shootings would end much worse. A lot of people turn to guns for crazy stuff because they aren't capable of making explosives. Those who are methodical enough to do so, do it with devastating results. I'll come right out and say I would fully support strict regulation and monitoring of explosives, but not an outright ban. Making a guided missile on your own isn't as simple as googling it.

I don't subscribe to the founding fathers only had muskets point of view, but they also didn't have weapons that could easily kill hundreds or thousands of people.

Mike

The bolded part is straight from the Brady Bunch playbook. Guns are scary and evil, black guns will turn normal people into crazed killers and if they are already on the edge, into mass murderers.

No. A person capable of being a crazed killer will find a way.

The missile argument was just silly and you know it, but I would contend it isn't quite as difficult as you think. The Germans did it in WWII. I saw it on Hogan's Heroes. It's all about information and that cat is out of the bag.

 

[crazymjb]

Not really straight from the Brady play book, but nice try. Crazy people will find a way, such as Mcveigh, the unibomber, that guy who blew up that elementary school. I get that. You open the market for explosives, you are talking a big leap even from Machine guns to military grade explosives. I am not saying explosives existing in the market will cause people to use them for malice, but people WILL use them for malice in place of the crazy shit they already do. I never had an appreciation for that until I was around them.

Mike

 

[cekim]

Not really straight from the Brady play book, but nice try. Crazy people will find a way, such as Mcveigh, the unibomber, that guy who blew up that elementary school. I get that. You open the market for explosives, you are talking a big leap even from Machine guns to military grade explosives. I am not saying explosives existing in the market will cause people to use them for malice, but people WILL use them for malice in place of the crazy shit they already do. I never had an appreciation for that until I was around them.

Mike

Makes sense until you realize all the horrible things already around us every day that people don't use.

The cold hard reality is most people behave themselves. Incompetence is an issue, but there are better solutions to incompetence than tyranny.

 

[crazymjb]

Agreed, but not selling C4 at your local CVS isn't exactly tyranny. I do think there should be avenues for people to get things like that, but not no questions asked.

Mike