[GW:225] It's So Easy To Buy A Gun

May 2012
328
96
Upper Bucks County, PA
Yet our government does exert control and influence over the possession and use of private citizen's personal arms.
True but the question is, which laws will pass constitutional muster? 69 years passed between significant SCOTUS determinations on the right to arms / 2nd Amendment (1939-2008) and in that time, starting in 1942, a mutated, perverted interpretation of the 2nd Amendment became prevalent in the lower federal and state courts. This worked to negate claims of citizens challenging gun control laws as violating the right to arms secured by the 2nd Amendment. In those years there have been hundreds of laws that have been directly sustained citing that now invalid reasoning. Those reasonings, termed the "collective right" theories, was invalidated by SCOTUS in 2008 (DC v Heller).

So, the legal foundation for the legitimacy of many of those laws you mention has evaporated. There will soon be an avalanche of challenges to gun control laws working their way up through the federal courts and now that wishy-washy Kennedy is gone, the Supreme Court will be taking more appeals from the Circuits.

Take California for example. The Mulford Act was passed and signed by Gov. Ronald Reagan in 1967 with NRA support.
All well and good but that isn't a compelling argument in 2019 because the 2nd Amendment was not enforceable on state laws until 2010 (McDonald v Chicago) and California is among the states with no right to arms provision in their state constitution. The California legislature took those circumstances to mean any gun control they could dream up was allowable.

We will see in the next few years how all these laws (including California's) stand up to the Supreme Court's determinations on the right to arms. The Court has established protection criteria to decide if the possession and use of a firearm by a citizen is protected by the 2nd Amendment. The arm must be of a type that is part of the ordinary military equipment, of a type that is usual in civilized warfare and/or if its use could contribute to the common defense or simply, of a type in common use by the citizens. Heller clarified also that the 2nd Amendment's protection "extends . . . to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding".

There is also the 1934 National Firearms Act which is chock-full of government exerting control over and influencing the possession and use of private citizen's personal arms.
The NFA-34 is different from all other federal gun control in that it is written under the tax code. The remainder of federal gun law is written under the commerce clause because it is argued, since firearms are transported in interstate commerce, they are forever under the regulatory authority of Congress. I think in the next 5 years we will see that authority rolled back, especially for firearms that never cross state lines and we might see drug laws be what chinks the commerce clause armor.
 
May 2012
328
96
Upper Bucks County, PA
I wouldn't put much stock in the Federalist Papers making your argument.
Since the Federalist Papers were intended to dissuade wild conjecture and explain what the powers of the federal government would be under the proposed Constitution, it is of value to discern the original meaning and more important, original understanding of federal authority. It's good enough for SCOTUS, they consider it to be a founding source and have cited it hundreds of times.

Often, like in Printz v US, the majority (by Scalia) and the dissents (Stevens and Souter) can cite the Federalist and come to different interpretations of a particular passage's meaning and effect on the law before them. That's where some good old debate comes in, to see who has the better reasoning, history and scholarship supporting their view. That surely holds true for us reading the opinion and here, discussing policy in this entertainment venue . . .

So, can you provide any different examples of contemporaneous commentary on the term "well regulated" being used to describe militia, that is more authoritative than what's in Federalist 29? . . . Or a compelling reason why Federalist 29's statement is facially wrong, . . . That "well regulated", when used to describe militia, is just an accolade that is earned by the unit, by demonstrating a high level of military readiness and fitness for battle?

It's fine if you want to press on with your incorrect definition and conclusion about the term, but what do you really have supporting you besides your strongly held opinion applying the modern definition of "regulated" and an ill-regard in general for the Federalist?
 
Dec 2015
16,820
12,153
SoCal
Since the Federalist Papers were intended to dissuade wild conjecture and explain what the powers of the federal government would be under the proposed Constitution, it is of value to discern the original meaning and more important, original understanding of federal authority. It's good enough for SCOTUS, they consider it to be a founding source and have cited it hundreds of times.

Often, like in Printz v US, the majority (by Scalia) and the dissents (Stevens and Souter) can cite the Federalist and come to different interpretations of a particular passage's meaning and effect on the law before them. That's where some good old debate comes in, to see who has the better reasoning, history and scholarship supporting their view. That surely holds true for us reading the opinion and here, discussing policy in this entertainment venue . . .

So, can you provide any different examples of contemporaneous commentary on the term "well regulated" being used to describe militia, that is more authoritative than what's in Federalist 29? . . . Or a compelling reason why Federalist 29's statement is facially wrong, . . . That "well regulated", when used to describe militia, is just an accolade that is earned by the unit, by demonstrating a high level of military readiness and fitness for battle?

It's fine if you want to press on with your incorrect definition and conclusion about the term, but what do you really have supporting you besides your strongly held opinion applying the modern definition of "regulated" and an ill-regard in general for the Federalist?
In my opinion, the Federalist Papers served a singular purpose, that purpose being the ratification of our Constitution. Our Constitution was ratified, and with that, the Federalist Papers have become purely historical documents.

Take Madison's 46th which both of us use in our arguments, but I use it to prove that either a) Madison was clueless, or b) Madison wasn't averse to misleading his audience for the greater good, that good being the ratification of our Constitution. You, on the other hand, continue to argue the validity of Madison's 46th, talking about ratios and whatnot that will prevent our federal government from using armed force to impose its will on our states and their militias, but the overarching truth is that our federal government did use our national armed forces to overcome rebellious state governments and their militias.

Of much more interest to me regarding our 2nd Amendment's creation are the various iterations it went through before we settled on our current amendment which is, sadly, poorly written and difficult to fathom, so difficult to fathom that a large portion of it, the portion mandating A well regulated militia, is now disregarded out of hand. For example, one previous draft read:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

another one:

A well regulated militia, composed of the body of the people, being the best security of a free State, 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.

and:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

in which a Senate scribe later decided to replace the semicolon with a comma.

So we eventually ended up where we are.

I guess I would be a subscriber to the 'collective rights theory' which "asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right," and you being opposed to my interpretation could be typified as a member of the 'individual right theory' that supposes "an individual constitutional right for citizens of the United States" was created.

Second Amendment
 
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May 2012
328
96
Upper Bucks County, PA
In my opinion, the Federalist Papers served a singular purpose, that purpose being the ratification of our Constitution. Our Constitution was ratified, and with that, the Federalist Papers have become purely historical documents.
And it is your right to not consider them as instructive. That doesn't alter the fact that SCOTUS does refer to them and cite them for guidance.

I recognize the Federalist Papers may not have recorded perfectly what the Framers thought about every issue of constitutional law but they are a repository of the kinds of arguments that the framers were making and concerned citizens were hearing during the ratification period in 1787-1788. They should be read alongside the Anti-Federalist Papers because of their adversarial context; often one writing was a direct rebuttal to an opposition piece. Disagreements as to ambit of powers and understanding the concept of federalism were made and discussed. For me, they are a blueprint of fundamental principles, they explain the philosophical reasons for the fundation of the Constitution.

Take Madison's 46th which both of us use in our arguments,
What about 84? The Federalist arguments against adding a bill of rights were recognized, accepted and codified in the 9th and 10th Amendments.

My consideration of the Federalist can be sumed up in a Jefferson quote: "The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption -- a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible."

I think Federalist 84 meets both criteria, especially in the consideration of the 2nd Amendment. The arguments opposing a bill of rights in 84, explaining why a bill of rights for our Constitution was absurd and dangerous, have really come true for the 2nd Amendment:

"I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."​

We have certainly seen that the wording of the 2nd Amendment has been used as a "handle" to wield "constructive powers" by arguing that the words of the 2nd actually DO, "confer a regulating power" and "men disposed to usurp" have twisted those words into a, "plausible pretense for claiming [a] power" to regulate the right.

How do you feel being among those we were warned against? Could it be that's why you are so eager to dismiss the Federalist Papers?

Of much more interest to me regarding our 2nd Amendment's creation are the various iterations it went through before we settled on our current amendment which is, sadly, poorly written and difficult to fathom, so difficult to fathom that a large portion of it, the portion mandating A well regulated militia, is now disregarded out of hand. For example, one previous draft read:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
The 2nd Amendment's "creation", the debate and decision over the words used to recognize and secure the right to arms, did not create the right. Your "interest" is in words that the right to arms does not in any manner depend upon.

The 'religiously scrupulous' language was removed because a provision recognizing and securing a RIGHT that people were free to exercise or not, was not the place to define a militia regulation rule. The 2nd Amendment has never been examined by Congress or SCOTUS for any instruction on any aspect of militia organization, training or maintenence. In SCOTUS cases deciding militia issues the 2nd Amendment is ignored (it was mentioned in a dissent but just to say that the 2nd Amendment offers nothing of interest to decide militia issues).

The 2ndA just does not have anything of interest to say about militia and the declaratory clause has no conditioning or qualifying action on the right.

I guess I would be a subscriber to the 'collective rights theory' which "asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right,"
The collective right theory is actually two interpretations of the 2nd Amendment. One is the "state's right" theory, the other is the "militia right" . . . These theories first entered the federal courts in 1942; U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) for the "state's right" and Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) for the "militia right".

The militia right theory did have some presence in court decisions; these were early (before the Civil War) state court opinions that validated / sustained laws disarming Blacks. The reaoning was, since federal militia law excluded Blacks from serving, if we say the state right to arms was secured just for militia our state would be justified in forbidding Blacks from owning guns.

Since the heyday of the use of these interpretations (through the mid '60's to late '80's) they have fallen on hard times. The "state's right" has been totally abandoned since it has been realized that it was moot when it was first put forth in 1942 -- the 1903 Dick Act, federalizing the state militias, extinguished state militia powers for all intents and purposes (and inexplicably, no state argued the protection of the 2nd Amendment to repel such federal overstepping).

The "militia right" has systematically had the flesh flayed off of it as the "individual right" model has gained prominence in law and acedemia.

It is but a mere shell of its original . . . Saul Cornell coined the term and it is now argued as the "conditioned individual right"; the right is secured for individual citizens and they can claim the 2ndA's protections, but only arms use while one is attached to a official militia is protected. This would be essentially what Stevens argued in his Heller dissent AFTER he said, "The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. "

The general "collective right" theories are defunct and nobody argues any part of it now to defend gun control laws; it belongs in the dust-bin of bad history.

.
 
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Jul 2011
78,682
44,419
Memphis, Tn.
It's about all the answer your little game deserves.

Now, before you start whining about "what game am I playing" . . . or something else that won't contribute to anything just stop it and move on.

Have a great rest of your Saturday.
NO.
It's about all the answer your little game deserves.

Now, before you start whining about "what game am I playing" . . . or something else that won't contribute to anything just stop it and move on.

Have a great rest of your Saturday.

:cool:
 

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