Gun Control III

Off Topic Politics & World Issues
541

Moreover, from the Preamble to the Bill of Rights:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

So, the states at the time of the initial ratification expressed concerns about the misuse of powers granted to the federal government under the Constitution. To fix that, additional express restrictions were added.

That is the understood history and intent of the Bill of Rights. Hamilton thought such a list of restrictions superfluous - he said the Constitution inherently limited the powers of the federal government through structural aspects (enumeration of powers, etc.). Madison disagreed, so did others - and the impetus for the Bill of Rights was born.

At no point did states think the Bill was to place federal curbs on the power to conduct state policy. The Bill of RIghts wouldn’t have made it out of committee if that was the purpose.

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[quote]thunderbolt23 wrote:

[quote]Alrightmiami19c wrote:

I have been watching this thread for a bit. It seems like you guys have been splitting hairs for the last couple of pages in regards to states rights considering almost every state constitution includes the bill of rights or a very similar text.[/quote]

Heavens no - states have a varied patchwork of gun laws and regulations. The differences are stark and generate a lot of new legislation and lawsuits.[/quote]

Believe me I know that there are legislative and regulatory differences from state to state, I live in upstate NY. The NY state constitution shares the exact wording in its bill of rights. That being said, a lot of regulations and laws concerning guns violate its own 2A. These laws should be struck down due to said violation, unless the state constitution is amended.
The fact that much of the legislation holds up in the NY appellate is a farce. Makes me wonder why we even act like there is still rule of law.

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[quote]thunderbolt23 wrote:

[quote] twojarslave wrote:

Correct me if I’m wrong here please.
[/quote]

A few pages back, I posted:

[quote]As for the original intent of the Fourteenth Amendment - can anyone make a legitimate argument that at the time of the ratification of that Amendment that the intent was that any state laws and regulations that had been adopted to the Fourteenth Amendment were suddenly eviscerated by its passage?

Don’t forget it was an amendment and that state legislatures ratified on their own - were the states intending that their existing gun control laws (whatever their makeup) be washed away by ratifying the Fourteenth Amendment?Ã??Ã?Â

I am happy to hear that case made, but I don’t think anyone can make it.[/quote]

…meaning, the Supreme Court clearly has “incorporated” the Second Amendment, but did they get it right? As I put in my statement and question, I am not so sure they did…by the lights of original intent.

[/quote]

Now that I understand incorporation better than I did this time yesterday (thanks for that, by the way), I still fail to see how your uncertainty on whether they correctly interpreted the original intent has any practical bearing on the gun control discussion today.

Interesting historical tidbit? Sure.
Compelling constitutional theory? Definitely.
Worth discussing? I suppose so, but we’re starting to drift.

The fact that Illinios - ILLINOIS - is now issuing CCW licenses ought to be indicative that no law-making body, let alone the public, considers the 2nd Amendment to be anything other than what it now seems to be in practice - a right that we all share (given by God, if that’s your thing).

The public discussion is not this deep in the weeds, and SCOTUS has, in practical terms, settled much of the debate with Heller and McDonald.

Let me ask you this. What do you believe the likelihood is that the 2nd Amendment will be unincorporated anytime in the near or medium-term?

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[quote] twojarslave wrote:

Let me ask you this. What do you believe the likelihood is that the 2nd Amendment will be unincorporated anytime in the near or medium-term? [/quote]

I think it’s reasonable it will be revisited. No one thinks the Second Amendment right is absolute, and as a result, policy lines will have to be drawn. Blue states - for lack of a better description - will continue ro push that into limiting whatever right the Supreme Court has concluded deserves to be “incorporated”. Right now, there is little precision.

Blue states will continue to tighten restrictions, and in doing so, I believe, will resurrect arguments in favor of states’ rights to do so. I think that sets up a future fight over the “incorporation” of the Second Amendment and all the infirmities of that doctrine, which even a number of prominent conservative jurists don’t like.

Think of it as the abortion problem in reverse, in a way - Roe v. Wade was supposed to settle the issue, but it instead inflamed it, amd a bunch of Red States are asserting their state interest and right to legislate on abortion as they see fit on a theory that the decision was unsound constitutional law.

I think we see the same set of events with Blue States and gun rights, and the weakness of the incorporatiom doctrine generally makes it a winnable issue. If I am a Blue State attorney general, I scream from the mountaintops that incorporation of the Second Amendment doesn’t square with original intent and put conservative judges in a box to revisit the issue.

So, yeah - I think it’s vulnerable.

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[quote]thunderbolt23 wrote:

No one thinks the Second Amendment right is absolute, [/quote]

Nobody as in legislators or nobody as in citizens?

546

[quote]thunderbolt23 wrote:

[quote] twojarslave wrote:

Let me ask you this. What do you believe the likelihood is that the 2nd Amendment will be unincorporated anytime in the near or medium-term? [/quote]

I think it’s reasonable it will be revisited. No one thinks the Second Amendment right is absolute, and as a result, policy lines will have to be drawn. Blue states - for lack of a better description - will continue ro push that into limiting whatever right the Supreme Court has concluded deserves to be “incorporated”. Right now, there is little precision.

Blue states will continue to tighten restrictions, and in doing so, I believe, will resurrect arguments in favor of states’ rights to do so. I think that sets up a future fight over the “incorporation” of the Second Amendment and all the infirmities of that doctrine, which even a number of prominent conservative jurists don’t like.

Think of it as the abortion problem in reverse, in a way - Roe v. Wade was supposed to settle the issue, but it instead inflamed it, amd a bunch of Red States are asserting their state interest and right to legislate on abortion as they see fit on a theory that the decision was unsound constitutional law.

I think we see the same set of events with Blue States and gun rights, and the weakness of the incorporatiom doctrine generally makes it a winnable issue. If I am a Blue State attorney general, I scream from the mountaintops that incorporation of the Second Amendment doesn’t square with original intent and put conservative judges in a box to revisit the issue.

So, yeah - I think it’s vulnerable.[/quote]

Really?

Again, I don’t claim expertise on SCOTUS matters, but don’t they tend to let their decisions stand for a LONG TIME before revisiting them? That’s why I used the words “short and medium term”.

Do you have an example of a landmark ruling of similar magnitude to McDonald or Heller that was revisited in a time span of less than, let’s say, a decade?

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[quote]Alrightmiami19c wrote:

[quote]thunderbolt23 wrote:

No one thinks the Second Amendment right is absolute, [/quote]

Nobody as in legislators or nobody as in citizens? [/quote]

Both, I’d say. And I don’t mean literally - I am sure there is someone who does. I mean no one with any sense and who is part of the mainstream debate.

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[quote]twojarslave wrote:

Really?

Again, I don’t claim expertise on SCOTUS matters, but don’t they tend to let their decisions stand for a LONG TIME before revisiting them? That’s why I used the words “short and medium term”.

Do you have an example of a landmark ruling of similar magnitude to McDonald or Heller that was revisited in a time span of less than, let’s say, a decade?
[/quote]

Generally they have a sense of deference to precedent - but on a 5-4 decision on a highly partisan issue? If the balance of the Supreme Court gets changed over the course of an eight year Hillary presidency, I could see it happening. That wouldn’t be true for any issue, I don’t think - but this one? The risk is there.

In any event, prior to that, the contours of what the Second Amendment restricts and what it doesn’t will have ro be decided case by case. Where these theories challenging and tweaking McDonald’s will be on the lower courts and will stay there for some time.

549

[quote]thunderbolt23 wrote:

[quote]twojarslave wrote:

Really?

Again, I don’t claim expertise on SCOTUS matters, but don’t they tend to let their decisions stand for a LONG TIME before revisiting them? That’s why I used the words “short and medium term”.

Do you have an example of a landmark ruling of similar magnitude to McDonald or Heller that was revisited in a time span of less than, let’s say, a decade?
[/quote]

Generally they have a sense of deference to precedent - but on a 5-4 decision on a highly partisan issue? If the balance of the Supreme Court gets changed over the course of an eight year Hillary presidency, I could see it happening. That wouldn’t be true for any issue, I don’t think - but this one? The risk is there.

In any event, prior to that, the contours of what the Second Amendment restricts and what it doesn’t will have ro be decided case by case. Where these theories challenging and tweaking McDonald’s will be on the lower courts and will stay there for some time.[/quote]

So you don’t have an example, right?

Again, I appreciate the insight into incorporation, original intent and the larger history lesson I received while reading about that, both in your posts and other sources. I generally consider myself very well-informed on arguments for and against gun control and the surrounding topics, and I am pleased to have discovered an aspect of the discussion on which I was not.

But that ship is sailed. Out to sea for a long time, I believe. As compelling as your arguments can seem, I see no reason to believe that a SCOTUS ruling will overturn Heller or McDonald in the next decade, and I think it is reasonable to expect that the rulings will stand for most of my remaining years. If you could give me an example where a decision of that gravity has been reversed in such a short period of time, perhaps this would be worth discussing.

As it stands, shouldn’t this be filed away in the “gun control pipe dreams” box for the next generation or two?

550

[quote]thunderbolt23 wrote:

[quote]twojarslave wrote:

Really?

Again, I don’t claim expertise on SCOTUS matters, but don’t they tend to let their decisions stand for a LONG TIME before revisiting them? That’s why I used the words “short and medium term”.

Do you have an example of a landmark ruling of similar magnitude to McDonald or Heller that was revisited in a time span of less than, let’s say, a decade?
[/quote]

Generally they have a sense of deference to precedent - but on a 5-4 decision on a highly partisan issue? If the balance of the Supreme Court gets changed over the course of an eight year Hillary presidency, I could see it happening. That wouldn’t be true for any issue, I don’t think - but this one? The risk is there.
.[/quote]

What do you think the effect of such a reversal brings?

Hell in the streets, or like every other “infringement” the people just roll over and take it?

551

[quote] countingbeans wrote:

What do you think the effect of such a reversal brings?

Hell in the streets, or like every other “infringement” the people just roll over and take it? [/quote]

I don’t think so - but I think I would depend on the reasoning. But I don’t think there would Hell in the streets. I think the vast majority of Americans think of themselves as gun rights moderates - and already don’t believe the right is an absolute one. A reversal would simply kick the issue solely to the states, which is a return to the world only as long ago as 2010. And I think it would handled the way it was previously - people voting in state legislatures, but more likely voting with their feet.

552

[quote]twojarslave wrote:

So you don’t have an example, right?[/quote]

Well, off the top of my head, West Coast Hotel Co. v. Parrish is a good example.

[quote]Again, I appreciate the insight into incorporation, original intent and the larger history lesson I received while reading about that, both in your posts and other sources. I generally consider myself very well-informed on arguments for and against gun control and the surrounding topics, and I am pleased to have discovered an aspect of the discussion on which I was not.

But that ship is sailed. Out to sea for a long time, I believe. As compelling as your arguments can seem, I see no reason to believe that a SCOTUS ruling will overturn Heller or McDonald in the next decade, and I think it is reasonable to expect that the rulings will stand for most of my remaining years. If you could give me an example where a decision of that gravity has been reversed in such a short period of time, perhaps this would be worth discussing.

As it stands, shouldn’t this be filed away in the “gun control pipe dreams” box for the next generation or two?[/quote]

I wouldn’t say so, for the reasons mentioned earlier - this issue will be pushed in lower courts (same as with Roe), and the McDonald ruling might not be as robust as its supporters hoped once it gets picked apart and qualified with some of the stuff I alluded to.

553

[quote]thunderbolt23 wrote:

[quote] countingbeans wrote:

What do you think the effect of such a reversal brings?

Hell in the streets, or like every other “infringement” the people just roll over and take it? [/quote]

I don’t think so - but I think I would depend on the reasoning. But I don’t think there would Hell in the streets. I think the vast majority of Americans think of themselves as gun rights moderates - and already don’t believe the right is an absolute one. A reversal would simply kick the issue solely to the states, which is a return to the world only as long ago as 2010. And I think it would handled the way it was previously - people voting in state legislatures, but more likely voting with their feet.[/quote]

After 1986, I don’t believe a single word of the “red blooded, red voting, from my cold dead hands” crowd. Assault Weapons Bans?

Gun Right’s advocates get a lot right, but they sure do get enough wrong too. OUtside of cans, one of the bluest states in the nation has some of the best gun laws…

I’m tired of it being framed as a left v right issue. It isn’t. There are anti’s and pro’s on both sides.

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[quote] countingbeans wrote:

Gun Right’s advocates get a lot right, but they sure do get enough wrong too. OUtside of cans, one of the bluest states in the nation has some of the best gun laws…

I’m tired of it being framed as a left v right issue. It isn’t. There are anti’s and pro’s on both sides. [/quote]

I completely agree. Historically, it has been a messy issue filled with difficult trade-offs. It has never been a clean “liberty loving patriots versus statists” fight. And that was a part of my poimt in discussing the history of the Second Amendment - the nature of the right is not simple, and never has been.

And, to your point, out of those I know personally, my friends that are card- carrying Democrats own more guns and pay attention to these issues than those that vote Republicanm

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[quote]thunderbolt23 wrote:

[quote]twojarslave wrote:

So you don’t have an example, right?[/quote]

Well, off the top of my head, West Coast Hotel Co. v. Parrish is a good example.

[quote]Again, I appreciate the insight into incorporation, original intent and the larger history lesson I received while reading about that, both in your posts and other sources. I generally consider myself very well-informed on arguments for and against gun control and the surrounding topics, and I am pleased to have discovered an aspect of the discussion on which I was not.

But that ship is sailed. Out to sea for a long time, I believe. As compelling as your arguments can seem, I see no reason to believe that a SCOTUS ruling will overturn Heller or McDonald in the next decade, and I think it is reasonable to expect that the rulings will stand for most of my remaining years. If you could give me an example where a decision of that gravity has been reversed in such a short period of time, perhaps this would be worth discussing.

As it stands, shouldn’t this be filed away in the “gun control pipe dreams” box for the next generation or two?[/quote]

I wouldn’t say so, for the reasons mentioned earlier - this issue will be pushed in lower courts (same as with Roe), and the McDonald ruling might not be as robust as its supporters hoped once it gets picked apart and qualified with some of the stuff I alluded to.
[/quote]

Perhaps I’m unreasonably biased towards the Bill of Rights, but do you believe that a ruling from 78 years ago overturning a previous ruling in 1923 - fifteen years earlier - on minimum wage legislation in Washington State is a good example of swift action by the Supreme Court on overturning landmark rulings concerning our fundamental rights as citizens?

Not that I’m diminishing the significance of the example you provided, which seems to be quite significant even to my limited Constitutional intellect, but do you believe that a SCOTUS ruling on minimum wage legislation is really in the same ballpark as a ruling on the 2nd Amendment of the Bill of Rights?

Please, let me know if I am underestimating the importance.

If that’s the best example you can conjure up you don’t exactly have me quaking in my boots that either Heller or McDonald will be revisited by SCOTUS in the near future.

Not even if Noam Chomsky wins the White House.

Of course, there’s always a time for firsts, but I’m no more likely to bet that part of the Bill of Rights will be so swiftly unincorporated than I am to bet that Noam Chomsky will win the White House.

Then again, I’m not an expert on esoteric legal arguments. Perhaps your prediction plays out and we will be ushered into a new era of SCOTUS indecision.

You never know, do you?

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[quote]pushharder wrote:
Give us your working definition of “absolute right” [/quote]

This guy comes pretty close.

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[quote]Varqanir wrote:

[quote]pushharder wrote:
Give us your working definition of “absolute right” [/quote]

This guy comes pretty close.[/quote]

Lol! American conservatives like Beck are classical liberals and have very little connection to the authentic right-wing beyond their stance on social issues.

If you’re looking for an “absolute right” try my avatar. Julius Evola holds the position as the only philosopher who wrote a book criticising National Socialism from the right. He was very critical of Nazism’s crackpot racial theories and he saw Nazism (correctly) as a mass movement with widespread support amongst the people; a populist movement as opposed to an authentic “right-wing” radical movement which would be far less democratic.

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[quote]SexMachine wrote:
If you’re looking for an “absolute right” try my avatar. Julius Evola…[/quote]

I always wondered who that guy was. Man, does he look uptight. I don’t know anything about the man, but judging from that picture, I’d say he appears to be in dire need of a night out at a high-end strip club with lots of booze and drugs.