Repeal the 2nd Amendment

[Nous]

Common law is useful in divining meaning when language is ambiguous.
Consider.....
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed...."
I've underlined the relevant portion.
This is clear in not allowing exceptions.

Hopefully you understand Stevens' position, given that those words in the Amendment were never interpreted, even at the time of the Amendment's ratification, to require jury trials for even petty offenses.

BTW, do you believe that judges are generally more likely to unfairly convict a defendant than juries are?

 

[Nous]

"It's only the benefits...that are non existent" (nous indicating that self defense with guns is a non existent benefit).

Obviously you'll need to find some method to clear your head so that you can respond to what I actually said (which you did quote).

Let's try it this way: List a benefit of guns that isn't outweighed by a risk or illegal use of guns. Then show that your claim about this benefit is true.

 

[Revoltingest]

Hopefully you understand Stevens' position, given that those words in the Amendment were never interpreted, even at the time of the Amendment's ratification, to require jury trials for even petty offenses.

The clarity of the 6th Amendment is what determines meaning for me.
Justices might differ either because of judicial philosophy, or desire to have fewer jury trials.

BTW, do you believe that judges are generally more likely to unfairly convict a defendant than juries are?

I don't know who is more generally likely to convict.
But the advice given me by a law prof & a former judge are.....
- If guilty, go with a jury.
- If innocent, go for a bench trial (judge).

 

[Curious George]

Obviously you'll need to find some method to clear your head so that you can respond to what I actually said (which you did quote).

Let's try it this way: List a benefit of guns that isn't outweighed by a risk or illegal use of guns. Then show that your claim about this benefit is true.

Don't be bitter because you misspoke.

 

[Curious George]

Yes, the Constitution includes in the term (not a phrase) "the people" in several places. As the Court makes clear in United States v. Verdugo-Urquidez, the term "the people" in the Fourth Amendment (and elsewhere) "refers to a class of persons" (my emphasis). Likewise in the Ninth Amendment, the rights "retained by the people" do not belong to any identifiable individuals, but are the rights belonging to a class of persons. As noted above, to interpret the phrase, "the right of the people" as "the rights of individuals" isn't logically justifiable because it raises the conundrums such as about "which arms" individuals have a "right" to keep and bear (not all kinds of arms).

From your cite:
While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." See United Statesex rel. Turner v. Williams, 194 U. S. 279, 292 (1904)

From their cite:
"He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise."


Individuals citizens are members of your "class" so the right extends to them.

Moreover the entire revolution and the subsequent constitution were precedented on Locke's first natural law: the law of self defense. To read the constitution in such a way that it does not concern this right is laughable.

 

[Nous]

I don't know who is more generally likely to convict.
But the advice given me by a law prof & a former judge are.....
- If guilty, go with a jury.
- If innocent, go for a bench trial (judge).

I would agree with that advice, at least in many cases--again, because juries are so easily persuadable by irrelevancies.

A hell of a lot of people are convicted by juries only to be later exonerated by DNA or other evidence. I've never seen a study as to whether a judge or jury more often wrongly convicts. I would like to see such a study.

 

[Nous]

Don't be bitter because you misspoke.

If you believe that something I've said is erroneous, then quote it and demonstrate its error. That's what I (et a.) have done with your falsehoods about the alleged benefits of gun ownership.

 

[Revoltingest]

I would agree with that advice, at least in many cases--again, because juries are so easily persuadable by irrelevancies.
A hell of a lot of people are convicted by juries only to be later exonerated by DNA or other evidence. I've never seen a study as to whether a judge or jury more often wrongly convicts. I would like to see such a study.

Of course, juries can be manipulated to exonerate the guilty too.

 

[Nous]

Individuals citizens are members of your "class"

Obviously no one denied that individuals make up the "class" that is referred to by the term "people" in the Constitution. (And, BTW, it isn't only citizens that the term "people" refers to.)

so the right extends to them.

This is where logic fails you. Obviously the rights noted in the Ninth Amendment do not "extend" to any individual. The Ninth Amendment identifies rights that belong only to "the people" as a whole.

Likewise, again, to interpret the term "the right of the people" in the Second Amendment as "the rights of individuals" makes the first clause of the sentence nonsensical. You haven't yet made sense of that prefatory clause. (Neither did Scalia.)

 

[Revoltingest]

This is where logic fails you. Obviously the rights noted in the Ninth Amendment do not "extend" to any individual. The Ninth Amendment identifies rights that belong only to "the people" as a whole.

From....
https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution
We find.....
"Douglas joined the majority opinion of the U.S. Supreme Court in Roe, which stated that a federally enforceable right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

As I & many judges read the 9th, this extends non-enumerated rights "of the people" to individuals.

 

[Curious George]

If you believe that something I've said is erroneous, then quote it and demonstrate its error. That's what I (et a.) have done with your falsehoods about the alleged benefits of gun ownership.

Sure, let's try this again. You claimed that the benefits were non-existent. This is very different than saying they are outweighed (an idea in itself that is still up for contention).

Your reference did not suggest the benefits were non existent, they suggested guns are more frequently used for intimidation than self defense. I called out this misstep of yours, you told me to reply to what you did say. I laid out what you did say, you shifted your statement to benefits that outweigh.

The bottom line here is that the benefits are existent. Before we can do any sort of balancing test, you need to admit this fact.

I am not saying either way, as of yet, that the balance falls one way or another. Simply that their are benefits. Documented, well accepted benefits.

 

[Curious George]

Obviously no one denied that individuals make up the "class" that is referred to by the term "people" in the Constitution. (And, BTW, it isn't only citizens that the term "people" refers to.)

This is where logic fails you. Obviously the rights noted in the Ninth Amendment do not "extend" to any individual. The Ninth Amendment identifies rights that belong only to "the people" as a whole.

Likewise, again, to interpret the term "the right of the people" in the Second Amendment as "the rights of individuals" makes the first clause of the sentence nonsensical. You haven't yet made sense of that prefatory clause. (Neither did Scalia.)

Let me get this straight.

Let us define people as set A. Now A={x|x is a citizen of the U.S}

a is a subset of A.
You think that something that applies to all A does not apply to a?

I don't think my logic is faulty my friend.

I suppose there is a way to argue for emergent properties or something of the like. But one would use language that indicates one is talking about A iff A is complete.

For instance, if we take A={x|x is prime}
We could say that All A have the property of only being divisible by one and their self. For no subset of A will this be false.

Now, we could say that A is an infinite set. In that case we can clearly see that it is possible for some subsets of A to not have this quality. However, the language we use refers to a property of the set as a whole. The phrase keep and bear arms would make no sense if it were applied to the set only as a whole and not a property that is true of members of the set.

Rather, the right would read, for the people, the right to arms shall not be infringed.

The difference is subtle, but when one is talking about a right that applies to a class as a whole and not members of the class, the language would specify such.

The interpretation of this right to individuals does not make the prefatory clause nonsensical. A militia is a subset of set A. The idea that all members of set A have this right, enables the purpose (not limiting) of the prefatoy clause to be actualized.

The militia is a subset of A, formed or existing of their own accord. No government has the authority to establish a militia, only to regulate, call upon, and discipline. So, the people have the right to establish a militia (not states because that would be too close to a standing army). So, individuals must have the right to keep and bear arms separate from the government, in order to actualize a militia.
The reason for a militia is self defense. I am not one of those who thinks that this self defense was to be against our government because if such a need arose, the constitution would be void and we would have no government (as the constitution provides peaceful ways to change government). However, threats, both foreign and domestic can arise. And such is the purpose for the militia. Now, that individuals have the right for this purpose to keep and bear arms, we should turn to the question of whether that right should be limited to only militia activity. The answer is no. Self defense is fundamental to our founding, to our constitution, and to the second amendment. So, to read the amendment in such a way as to drive a wedge between the purpose of the second amendment (self defense) and the entity it preserves (the militia) is shocking. The right belongs to the people not to members of the militia.

In short, the preservation of the militia for self defense, through reservation of the right to keep and bear arms by the people, contains in it the purpose of self defense of those persons, even when not directly connected to militia activity.

 

[metis]

The SCOTUS have never viewed private ownership of guns to be covered under the 2nd up until the Heller case. If that were to be the case, then logically and legally anyone can buy a gun regardless as to their criminal record or their mental health. Nor does the 2nd specify which weapons may or may not be allowed, so states and the fed have long had restrictions on certain weapons, and what they have done has been held to be constitutional in the vast majority of cases by the courts.

And, no, I will not discuss this.

 

[Revoltingest]

The SCOTUS have never viewed private ownership of guns to be covered under the 2nd up until the Heller case. If that were to be the case, then logically and legally anyone can buy a gun regardless as to their criminal record or their mental health.

This is unclear.
If what were to be the case?

 

[metis]

This is unclear.
If what were to be the case?

Fair question. In my 2nd use of "case", I'm saying if the 2nd actually stated that "arms" could not be restricted and that this was viewed as being somehow an absolute in terms of private ownership, then no "arms" nor any citizen could be stopped from getting any "arm" of their choice.

 

[Revoltingest]

Fair question. In my 2nd use of "case", I'm saying if the 2nd actually stated that "arms" could not be restricted and that this was viewed as being somehow an absolute in terms of private ownership, then no "arms" nor any citizen could be stopped from getting any "arm" of their choice.

It would be safe to presume that like any other right in the Bill Of Rights,
it could be taken away under some circumstances, eg, imprisonment,
court order.

 

[metis]

It would be safe to presume that like any other right in the Bill Of Rights,
it could be taken away under some circumstances, eg, imprisonment,
court order.

Yes, but that only works under the "loose constructionist" guideline that we've been using for over 200 years now. The "strict constructionists", of which there's still some around, would say no to what you wrote. Our SCOTUS has used the former approach for that length of time, but the Heller case gets too close for even the minority on this court to fathom, and they blistered the decision.

 

[Revoltingest]

Yes, but that only works under the "loose constructionist" guideline that we've been using for over 200 years now. The "strict constructionists", of which there's still some around, would say no to what you wrote. Our SCOTUS has used the former approach for that length of time, but the Heller case gets too close for even the minority on this court to fathom, and they blistered the decision.

I prefer constitutional originalism to strict constructionism.
Tis best when they coincide.

 

[Imaginary_Friends]

Why not?

The right to bear arms is a central tenet of a free society.

Oh please ...

Well the fact that the US government has no will, ability or inclination to protect it's borders, thousands of criminals are in the country. We have had several terror attacks in this country in the past 15 years. The debt crisis is only growing and it's well within reason in the near future to expect the government to seize assets to maintain solvency. See Cyprus.

If anything I would say there is more reason then ever to justify civilian gun ownership.

Now, are you opposed to civilian gun ownership in general or just in the USA? Other developed countries such as Israel and Switzerland allow civilian ownership of firearms. Do you oppose their ownership there as well?

 

[metis]

We have the most proliferation of guns of any industrialized nation, roughly one gun for every man, women, and child, and yet we have a homicide rate much higher than any of them. If all these guns in the hands of civilians supposedly protects us, it obviously ain't working out to well.