quote:

Originally posted by Q5echo it's information. thats all it is. use it however you want, or not use it. i've provided no context (although it certainly is implied ) i just didn't feel like it warranted it's own thread.

i was just curious if you had an opinion on the decision.

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can i ask a question of you more scholarly (and local!) fellas; what role does 'well-regulated militia' and 'defense of a free state' play in the decision making?

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Originally posted by jerZ07002 Unfortunately, the court did hold that the 2nd amendment right is an individual right. I summarized some interesting points below.

Which is the biggest joke and it boggles the mind when people traditionally consider this statement as a "strict" interpretation of the constitution and the founders' intent. The language of the second amendment is somewhat confusing:

"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."

Does the clause guarantee the rights of militias for the purposes of defending the sate or the individual right of a person? It's grammatically confusing especially when you take into account it was written 300 hundred years ago, but the fact that it was written 300 years ago provides the necessary context. Some textual hints are provided by the fact that the text refers to the right of "the people" collectively rather than of "persons" individually and the phrase "bear arms."

At the time, the phrase to "bear arms" was used from a military context alone. In other words, it wasn’t used to convey a hunter carrying a weapon or a homeowner carrying a weapon for protection. As a matter of fact, an earlier draft of the second amendment carried additional language that stated: “no one religiously scrupulous of bearing arms shall be compelled to render military service in person,” it clearly refers to a militia that defends the state rather than an individual right. In addition, if one were to examine all state constitutions that existed as of 1789 they consistently used the phrase “bear arms” in military contexts and NO OTHER.

The inclusion of the phrase “the people” refers more to the notion that the “militia” or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. “The people” refers to the necessary tie between democracy and the military. When looking at the reference to “the people” in the second amendment consider the reference to “the people” in the preamble of the constitution. In the preamble, “the people” ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase “the people” represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons.

I’m a strict constitutionalist but if you want to talk constitution let’s talk 1700s, let’s use earlier drafts of the constitution as context, and let’s refer to other documents (like state constitutions that the federal constitution used as context) to define what the founding fathers really intended.

Btw the source for much of my material is from "America's Constitution " by Akhil Reed Amar. It seems quite authorative.

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Retro ...

quote:

Originally posted by Q5echo because unpredictability is somehow a good thing when interpreting the Constitution?

That was the point of the "before even reading the facts of the case" phrase. You can predict the votes of the others without much effort at all if you know the topic.

BTW, Q, Obama disagreed with the child rapist death penalty case, so it looks like he flipped on the death penalty, too.

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"Go back to bed america your government is in control
Here's American Gladiators, here is 56 channels of it,
Watch these picturary retards bang their fuckin' skulls together and congratulate you on living in the land of freedom,
Here you go America you are free to do as we tell you
We want your soul
Your cash, your house, your phone, your cash, your house, your life" -Adam Freeland - We Want Your Soul

quote:

Originally posted by occrider Which is the biggest joke and it boggles the mind when people traditionally consider this statement as a "strict" interpretation of the constitution and the founders' intent. The language of the second amendment is somewhat confusing: "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." Does the clause guarantee the rights of militias for the purposes of defending the sate or the individual right of a person? It's grammatically confusing especially when you take into account it was written 300 hundred years ago, but the fact that it was written 300 years ago provides the necessary context. Some textual hints are provided by the fact that the text refers to the right of "the people" collectively rather than of "persons" individually and the phrase "bear arms." At the time, the phrase to "bear arms" was used from a military context alone. In other words, it wasn’t used to convey a hunter carrying a weapon or a homeowner carrying a weapon for protection. As a matter of fact, an earlier draft of the second amendment carried additional language that stated: “no one religiously scrupulous of bearing arms shall be compelled to render military service in person,” it clearly refers to a militia that defends the state rather than an individual right. In addition, if one were to examine all state constitutions that existed as of 1789 they consistently used the phrase “bear arms” in military contexts and NO OTHER. The inclusion of the phrase “the people” refers more to the notion that the “militia” or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. “The people” refers to the necessary tie between democracy and the military. When looking at the reference to “the people” in the second amendment consider the reference to “the people” in the preamble of the constitution. In the preamble, “the people” ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase “the people” represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons. I’m a strict constitutionalist but if you want to talk constitution let’s talk 1700s, let’s use earlier drafts of the constitution as context, and let’s refer to other documents (like state constitutions that the federal constitution used as context) to define what the founding fathers really intended. Btw the source for much of my material is from "America's Constitution " by Akhil Reed Amar. It seems quite authorative.

see, that makes perfect sense to me.

so why the tradition of the court to rule in other directions? is it purely a partisan-ish thing? i really dont get it. these are meant to be the sharpest legal minds, no?

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quote:

Originally posted by pkcRAISTLIN can i ask a question of you more scholarly (and local!) fellas; what role does 'well-regulated militia' and 'defense of a free state' play in the decision making?

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.

"A well regulated Militia" is a purpose for the people's right to keep and bear arms.

there is no such language as you describe "defense of a free state". the language in the Constitution reads, "being necessary to the security of a free State"

it's pretty simple really. the Constitution recognizes the individual's right to keep and bear arms.

quote:

Originally posted by Q5echo 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. "A well regulated Militia" is a purpose for the people's right to keep and bear arms. there is no such language as you describe "defense of a free state". the language in the Constitution reads, "being necessary to the security of a free State"

well obviously i got a few of the words wrong, duh are you going to answer the question or not?

quote:

Originally posted by Q5echo the Constitution recognizes the individual's right to keep and bear arms.

yes, yes. i know what YOU think it means, but i wanted to know how the court interprets those things i highlighted? i find occrider's analysis pretty convincing. and even though i might not be able to quote the amendment verbatim, its pretty obvious (to me at least) that the constitution does nothing of the kind.

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quote:

Originally posted by occrider The inclusion of the phrase “the people” refers more to the notion that the “militia” or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. “The people” refers to the necessary tie between democracy and the military. When looking at the reference to “the people” in the second amendment consider the reference to “the people” in the preamble of the constitution. In the preamble, “the people” ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase “the people” represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons.

you might want to reconsider that.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

the Preamble assigns no power to anything as you know. historically the phrase "We the people of the United States" has been interpreted as the citizens of the United States to exclude all others or Contitution's derivation of soveriegnty from the people.

from the Heller opinion:

quote:

As Sutherland explains, the key 18th-century English case on theeffect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep.404 (1716), stated that “the preamble could not be used to restrict the effect of the words of the purview.” J. Sutherland, Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was modified in England in an 1826 case to give more importance to the preamble, but in America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.”

additionally

quote:

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6 What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

are you saying that the people in We the people of the United States are only "represented by representatives who partook in constitutional assemblies" that secure the Blessings of Liberty to themselves and limited others?

Last edited by Q5echo on Jun-27-2008 at 09:33

quote:

Originally posted by pkcRAISTLIN well obviously i got a few of the words wrong, duh are you going to answer the question or not?

i'm sorry but there can not be any ambiguity or getting a few words wrong here.



[

quote:

yes, yes. i know what YOU think it means, but i wanted to know how the court interprets those things i highlighted?

youre right. i hastilly read your post.

yes they address and define almost every word and clause of the 27 word Amendment specifically in the dissent and the ruling >HERE< starts on page 7. but i think what you're looking for ends on page 10. the description of militias and the difference of individual rights though is throughout the opinion

quote:

the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

it's a very good read. read it all. won't take long at all. you know i luv ya.

Last edited by Q5echo on Jun-27-2008 at 10:23

quote:

Originally posted by Groundhog Boy BTW, Q, Obama disagreed with the child rapist death penalty case, so it looks like he flipped on the death penalty, too.

give him about a week

"Yesterday in the child rape case, Obama agreed with two Justices he voted against and disagreed with those he holds up as models. Today, revising a long held position on gun control, he agrees with Justice Scalia’s reading of the Second Amendment and again disagrees with Souter, Ginsburg, Breyer and Stevens. If only the Court could overturn Roe before the election, Obama would become a pro-lifer."

Last edited by Q5echo on Jun-29-2008 at 01:14

quote:

Originally posted by occrider Which is the biggest joke and it boggles the mind when people traditionally consider this statement as a "strict" interpretation of the constitution and the founders' intent. The language of the second amendment is somewhat confusing: "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." Does the clause guarantee the rights of militias for the purposes of defending the sate or the individual right of a person? It's grammatically confusing especially when you take into account it was written 300 hundred years ago, but the fact that it was written 300 years ago provides the necessary context. Some textual hints are provided by the fact that the text refers to the right of "the people" collectively rather than of "persons" individually and the phrase "bear arms." At the time, the phrase to "bear arms" was used from a military context alone. In other words, it wasn’t used to convey a hunter carrying a weapon or a homeowner carrying a weapon for protection. As a matter of fact, an earlier draft of the second amendment carried additional language that stated: “no one religiously scrupulous of bearing arms shall be compelled to render military service in person,” it clearly refers to a militia that defends the state rather than an individual right. In addition, if one were to examine all state constitutions that existed as of 1789 they consistently used the phrase “bear arms” in military contexts and NO OTHER. The inclusion of the phrase “the people” refers more to the notion that the “militia” or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. “The people” refers to the necessary tie between democracy and the military. When looking at the reference to “the people” in the second amendment consider the reference to “the people” in the preamble of the constitution. In the preamble, “the people” ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase “the people” represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons. I’m a strict constitutionalist but if you want to talk constitution let’s talk 1700s, let’s use earlier drafts of the constitution as context, and let’s refer to other documents (like state constitutions that the federal constitution used as context) to define what the founding fathers really intended. Btw the source for much of my material is from "America's Constitution " by Akhil Reed Amar. It seems quite authorative.

scalia went at length describing the meaning of the individual parts of the amendment in what i consider absolute shit. seriously, who cares what the founders intended. it's outdated and the second amendment is the only serious issue i can think of where people throw around founder's intent. in my opinion, his support only begged the question. on top of that, his tone in the opinion was exceedingly arrogant and in my opinion insulting to justice stevens.

his main argument as to why the militia clause doesn't restrict gun ownership in that context is because the clause is precatory and only describes an instance in which the right is protected - thus it is not limiting. in that case, if the clause had no meaning why would it be included? why not just skip that part and just say "the right to bear arms shall not be infringed?" To me, that argument is frivolous.

i would love to know how many other words in the constitution scalia disregards. I don't know, but i'm sure it would be a great law review article, if there are other phrases in the constitution that are deemed 'precatory'.