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View Diary: MAJOR 2nd Amendment victory in the most RKBA-hostile state in America (608 comments)

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  •  Could you point us to this? (11+ / 0-)
    I've read much of the history which led to its wording, the original wording it replaced in the final draft.
    Because, if you had read the history and the First Debates in Congress on this very amendment, you'd understand that they were ALWAYS talking about an individual unalienable right that pre-existed the Constitution itself.

    Alas, your posting here implies some other history, so if you would, please provide that history for us.

    How did you escape the Ratification documents submitted by the majority of the original 13 States?

    Like New Hampshire:

    XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.
    I'll wait for your evidence of this history you reference!

    -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

    by gerrilea on Tue Dec 11, 2012 at 05:05:43 PM PST

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    •  Sure, see my comment stream above (0+ / 0-)

      for my summary of how I read potentially relevant history related to the "militia" reference in our 2nd Amendment if the Constitution as it was drafted and finalized, please.

      "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

      by wader on Tue Dec 11, 2012 at 05:39:47 PM PST

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    •  Here, I'll make it easy for you (1+ / 0-)
      Recommended by:
      radical simplicity

      What's this about a "militia", anyway?

      The point is that we can all claim "originalism", here.  The entire concept is an excuse for jurisprudence based upon personal desire in actual practice, IMHO.

      Beyond that point, I also feel my viewing of how militias were referenced in the 2nd Amendment - and what that does/does not say about personal gun ownership - is a reasonable interpretation to consider.  I cared about the actual Constitution as it came together, from the different elements (primarily separatist and federalist) that became the largest bodies of emotion and thought towards its final form.

      "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

      by wader on Tue Dec 11, 2012 at 05:47:50 PM PST

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      •  Thanks but you're still only espousing your (7+ / 0-)

        personal opinion, not the opinions reflected in the historical documents that I pointed you to.

        Originialism means nothing, that's a red-herring.  The actual First Debates in Congress tells us all that we truly need to know, do they not?

        They discuss the 2nd A's scope and intent, it's because of Mr. Gerry's argument that the original text in the 2nd A of having a religious exemption was removed BECAUSE they did not want future, "men of reason", whom would haunt the halls of our government to have any power to restrict the right to keep and bear arms.

        It's really pretty clear.

        http://www.dailykos.com/...

        From Pg 778

            "A well regulated militia, composed of the body of the people, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms".

            This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

        It was because of his argument here that we have the 2nd A as it is written today.

        -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

        by gerrilea on Tue Dec 11, 2012 at 07:24:37 PM PST

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        •  No, I summarized actual passages from the (0+ / 0-)

          Constitutional drafts and the motivations behind their revisions.

          The first debates weren't the end-all, be-all of what they ended up with, was the point of my post: many concerns of various states were considered and only the issue of militias was directly addressed in the 2nd Amendment for some then-obvious reasons.

          Nothing was held in stasis on the issue throughout the Conference due to some louder states, especially the separationalist ones, on that issue.  Of course, the same can be said for taxation ownership, etc. - i.e., a whole host of points went through many revisions before the final agreements on what the Constitution would specifically address.  So, I look at early drafts of the 2nd Amendment and who influenced them for guidance on what its intent should be taken as, but take nothing more from the various interests to say one or more that didn't make it into the wording (or not) should be considered an overriding decoder ring for its final form.

          They essentially left the personal gun ownership/regulation issues open for states to address, or the federal government to later claim if it wanted to try.  Sure, some states still wanted the 2nd Amendment to incorporate their specific allowances on ownership or use, but those voices didn't succeed by the final version for various reasons (some of which I mentioned or alluded to).  Even with historical ownership patterns in the USA since then, I still found Heller greatly overreached in its assumptions - especially from Scalia's claims.

          "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

          by wader on Tue Dec 11, 2012 at 10:28:01 PM PST

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          •  I've read all the documents I could get my hands (1+ / 0-)
            Recommended by:
            wader

            on and the implication you present is that the 2nd A was compromise of competing interests.  The biggest undercurrent was who pays for the militia when called into service and how long would they be utilized.

            The very real fact that we got the Bill of Rights included was because the States moved to amend the Constitution themselves when the Central government did nothing for almost a year.  Congress had no choice in the matter.  Either pass them or lose total control over the new government. They introduced 12 Rights and only 10 made the cut.  If I recall correctly, the wording of each amendment was copied directly from Pennsylvania's Ratification Documents.  

            It was in this haste that we got what we call the Bill of Rights. What gets lost time and again is the intent.  Forget the damn wording that is spouted continually today, haven't we always said it's not how a law is written but it's intent? Yes!

            When you claim Scalia "overreached", history proves otherwise. The only overreach since the 2nd A was adopted is the Miller Decision in 1939 after FDR tried to pack the court.

            Historically speaking, there was always the unalienable right to bear arms, See the British Rights of Man of 1689.  This wasn't a new concept here.  Did women & children not also keep & bear arms throughout our history? YES!

            Miller falsely claims history doesn't matter and tries to say keeping & bearing arms was only for militia duty. That the right is tied to militia service, that's utter bullshit.

            The only way Miller can be valid is if the whole document we call the Constitution is viewed from the perspective that it grants limited authorities to our created gov't. In this context, then yes the only time the gov't could regulate arms would be during militia service and only if you were an active militia member.  This still leaves unanswered, what about the women,  children, doctors, lawyers, etc persons not defined as militia members?

            The States even believed the new Federal Gov't could request militia for X, Y or Z campaign but they were not lawfully bound to send them.  See War of 1812 and the refusal of Massachusetts, New York, etc to send troops.

            I have to get to work or I'd give you the links to the info I'm presenting here.  Google is your friend. ;)

             

            -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

            by gerrilea on Wed Dec 12, 2012 at 08:18:27 AM PST

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            •  I don't call the Bill of Rights (1+ / 0-)
              Recommended by:
              gerrilea

              a thing of "haste", so much as typical bargaining between competing interests that we see at any time in history.

              It ended up representing what it does, and all since has added to precedent and various applications to more contemporary times since then.

              That's how I view it as a "living" document, in summary, I suppose.

              As I said, it's easy to recognize that different interests contributed to the 2nd Amendment, but it ended up as it was for some distinct reasons (primarily from a federalist standpoint).  The issue of personal gun ownership was clearly not mentioned or implied as an enshrined "right" from what I saw, but also not implied as something you couldn't do - that was obvious by the explicit omission of handling hunting or defense weaponry.  However, it also meant that regulation of gun ownership should be considered wide open . . .until  Heller served to narrow how far regulation could go towards restricting actual ownership of guns, I feel.

              I said above that I'm not at all against gun ownership in general, but I am all for better tracking from the manufaturers, registration and regulation governing ownership abilities than we have now.

              "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

              by wader on Wed Dec 12, 2012 at 09:26:42 AM PST

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              •  Thanks for the discussion, I love what was (0+ / 0-)

                presented by both the Federalists and Ant-iFederalists...I agree with both, to some extent, personally.

                But what gets me is the fact that those writings came before the Constitution was ratified & the Bill of Rights were added.

                They truly have no bearing on the fact we have a bill of rights. The Anti-Federalists won the argument.  

                We have the demands and expectations We The People were ultimately agreeing to attached to the Ratification Documents.

                New York, Virginia, Pennsylvania, Rhode Island, etc in their Ratification Documents clarify what limited powers this newly created "central" government could exercise.  

                This makes moot any discussions previously, ie. the Federalist & Anti-Federalist papers.

                People get intentionally misdirected to those documents as the beginning & end of what the Constitution was doing. How it should be interpreted, NO, that's not historically accurate.  Some say, "Well, Hamilton said, X, Y or  here, so that's how we should interpret said."  Or "Jefferson said A, B, & C."

                The historical records do not establish this claim:

                it's easy to recognize that different interests contributed to the 2nd Amendment, but it ended up as it was for some distinct reasons (primarily from a federalist standpoint).
                There weren't "competing interests" in the Bill of Rights wordings.  The only legitimate competing interests was whether or not they should be added at all.

                Rhode Island refused 2 twice to ratify the Constitution because they were not included, they reluctantly acquiesced stating that being part of the larger whole was better than going it alone, basically.

                New York ratified it by a very slim margin, etc.  If New York and Virginia hadn't ratified the new constitution, we may never had gotten a "United States of America".

                Both States had reservations that there was no bill of rights included, but both decided that using Article V would be an acceptable alternative to waiting for another Constitutional Convention, if one ever would actually occur.

                It's because of their innate distrust of centralized power that they wanted these things spelled out AND why Hamilton penned Federalist #84 TO the People of New York, to dissuade them of this position, it didn't work.

                Again, once the Constitution was ratified, it wasn't a done deal until the Rights of Man were protected, as the people demanded in the majority of every State.

                You really have to review the Ratification Documents to understand they were giving direct orders to the newly created central government.

                And yes, I don't see our history through rose colored glasses, haven't for a very long time, as an actual Historian.  Our Founders had very clear thoughts & ideals that they wanted protected for their posterity.

                That said, most of the Rights of Man were well known to our Founders, those "rights" were the basis of our Bill Of Rights and didn't need much debate or "competing interests", they all grew up as Englishmen that were guaranteed those rights.  And Yes the addition of the Bill of Rights to the Constitution was done in haste but this doesn't mean they didn't know what they were talking about either.

                -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                by gerrilea on Wed Dec 12, 2012 at 09:16:04 PM PST

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    •  the key word is "right" (8+ / 0-)

      Basically the Constitution and Constitutional law does three things:

      powers are allocated to the state, rights are recognized/given/protected for the individual, and privileges are recognized for groups and organizations (duties of the state are also dealt with, but they are usually tied to privileges).

      In the Constitution the word "right" is consistently and solely used for individuals*. This was done intentionally by some very smart men who were very aware of the language they were using and used words to mean very specific things.

      *Before people start to quibble about the "right of the people" as an example of a "collective right" that clause is a recognition of the rights of individuals as free citizens to assemble, it is not a privilege given to a group that is tied to specific duties like carrying a weapon being a privilege tied to the duty of serving in the militia would be.

      Hwær cwom mearg? Hwær cwom mago? Hwær cwom maþþumgyfa? Hwær cwom symbla gesetu? Hwær sindon seledreamas?
      Eala beorht bune! Eala byrnwiga! Eala þeodnes þrym!

      by Alea iacta est on Tue Dec 11, 2012 at 05:48:06 PM PST

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