“Montezuma continued that state legislatures would be powerless when the national government exercised exclusive control over commerce and the power to wage war, make peace, coin money, borrow money, organize the militia and call them forth to crush insurrections.198 By eliminating the powers of the states, the clouds of popular insurrection would likewise be broken.199”
Edit: Added quote
I’ll stop, but people should really read the paper.
[quote]pushharder wrote:
[quote]thunderbolt23 wrote:
I don’t have a problem with this on its face, but are you including states too? States can’t restrict any arms? Or states can but the federal government cannot?
[/quote]
I’ve noticed you’ve done this several times in the past few weeks – seemingly ignoring the incorporation of the 14th and the pertinent passages in McDonald. Why?[/quote]
Because incorporation is a judicial contrivance, not a function of original intent. We’re sticking to what the original intent here, other precedent notwithstanding.
Moreover, had you actually read McDonald, you’d know that the only right it “incorporated” was the private right of personal self-defense, not any right to arms to protect and fight back against tyrannical government. So it would be irrelevant even if we were considering something other than our (cabined) thread dealing solely with original intent.
[quote]usmccds423 wrote:
Cornell disagrees with you smh. “It guarantees freedom of expressionÃ???Ã???Ã??Ã? by prohibiting Congress from restricting the press or the rights of individuals to speak freely.”[/quote]
No, it very much does not. The “rights of individuals to speak freely” are proscribed by laws against certain kinds of free speech, and by the punishments thereattached. You aren’t going to get anywhere by trying this. A law against certain kinds of speech is a restriction of an unqualified Constitutional right. Unarguably.
[quote]usmccds423 wrote:
[quote]smh_23 wrote:
The quotation above – the one about the government and people having something close to military parity – simply doesn’t apply in the real world circa 2015. [/quote]
How would it not apply in 2015 and beyond? Is tyranny different now? If King Obama oppressed you smh would it somehow be better than King George? If King Bush put a tax on the Press, $1 per letter to print, would that somehow be better than the Tea Act?
[/quote]
You can go ahead and read what I wrote just after what you excerpted. That’s how it doesn’t apply.
[quote]smh_23 wrote:
[quote]usmccds423 wrote:
Cornell disagrees with you smh. “It guarantees freedom of expressionÃ???Ã???Ã???Ã??Ã? by prohibiting Congress from restricting the press or the rights of individuals to speak freely.”[/quote]
No, it very much does not. The “rights of individuals to speak freely” are proscribed by laws against certain kinds of free speech, and by the punishments thereattached. You aren’t going to get anywhere by trying this. A law against certain kinds of speech is a restriction of an unqualified Constitutional right. Unarguably.[/quote]
Cornell literally says, "It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of the individual to speak freely..
I don’t really know what else to say, do word matter or do they not?
[quote]smh_23 wrote:
[quote]usmccds423 wrote:
[quote]smh_23 wrote:
The quotation above – the one about the government and people having something close to military parity – simply doesn’t apply in the real world circa 2015. [/quote]
How would it not apply in 2015 and beyond? Is tyranny different now? If King Obama oppressed you smh would it somehow be better than King George? If King Bush put a tax on the Press, $1 per letter to print, would that somehow be better than the Tea Act?
[/quote]
You can go ahead and read what I wrote just after what you excerpted. That’s how it doesn’t apply.[/quote]
One of the except I posted literally says, “Thus, the right envisioned was not only the right to be armed, but to be armed at a level equal to the government.”
Edit:
You talking about this:
"We can remedy this by decimating the military or by encouraging individuals to command all manner of heavy artillery and nuclear material (no two groups, ever, ever, can be said to be within a million miles of military parity when one has nuclear weapons and the other doesn’t).
Neither of these is going to happen, and neither is a good idea. So we should reconsider the text and codify two rights: one to personal self defense with small arms, and one to a well-regulated militia with heavy weaponry.
But even if we don’t, all of the above stands. There is no right to a loaded gun in a courtroom in the Second Amendment. There is no right to a backpack nuke."
Because that doesn’t explain how it doesn’t apply. You don’t like nuclear armed individuals or militiamen, fine, neither do I, but that doesn’t change the wording and intent of the second.
Once again, a weapon in a courtroom is not in keeping with the keeping and bearing of arms necessary to the security of a free state. Bearing arms in a court room, per your example, has exactly ZERO to do with the rights guaranteed and intent of the second.
[quote]NickViar wrote:
[quote]smh_23 wrote:
Law against “fire” in a crowded theater is a law proscribing the free exercise of some speech, some circumstances. Carry that out and you will see that even you don’t believe unqualified BOR protections are ipso facto protected from restriction.[/quote]
Is it actually illegal to shout “fire” in a crowded theater? If I stand up in a crowded theater and yell “Fire!” as loudly as I can and the other patrons laugh, have I committed a crime? How about an actor shouting “fire” in a crowded theater? Is that also a crime? I wonder…could it be that my speech will only be punished if it causes harm or creates a situation in which damage is done, while the possession of certain arms is illegal and punishable even in the absence of damage or harm?[/quote]
This doesn’t have any bearing on the argument.
I’ll do it one more time. Please follow along.
The First Amendment protects an unqualified right to free speech – freedom from laws against speech, freedom from penalty (at the hands of the state) for speech.
Proscription of some kinds of speech and/or speech by some kinds of speakers and/or speech under some kinds of circumstances – advocacy of imminent lawless action, commercial speech, etc. – impose reasonable restrictions on the First Amendment’s right to free speech. There are limits to this Constitutional right, and therefore a textually-unqualified Constitutional right is not ipso facto unrestrictable or illimitable.
If a textually-unqualified Constitutional right is not ipso facto unrestrictable or illimitable – and this is unarguably the case – then the absurd and ahistorical absolutism under which, for example, any restriction on firearms is met with a repetition of (or a dressed-up/concealed riff on) the mystical koan “shall not be infringed”…is illegitimate. Useless. Impotent. (Gun-rights absolutists just lost 100 percent of their argument: oh well.)
The same goes for a court’s confiscating a bag full of pipe bombs and flamethrowers at the door before a sentencing hearing. If the 2A were, per a childlike reading of its operative clause, an absolute, unqualified right against any conceivable infringement by government authority on the keeping and bearing of any conceivable arm under any conceivable circumstance – and this is exactly what the voguish fatuous absolutism insinuates, however limply – then our pipe-bomb-toting fellow would win the day by muttering “shall not be infringed.” He’d get into court with his bag of tricks, and he could say whatever the fuck he wanted to say therein – “fire,” “bomb,” a perpetual loop of the refrain “I’m going to blow this place to bits” – and nobody could do anything about it. At all. Then he could start a business and make whatever fantasized claims he wants to about his products, totally free from any kind of content-based regulation. Etcetera etcetera.
Which brings me to this: we all understand that laws to counteract what the previous paragraph describes are reasonable, Constitutional. Because, again and for the last time, the Founders were not ludicrous idiots, so we know with certainty that ludicrous idiocy does not figure into their intent. Consequently, and I repeat myself, a textually-unqualified Constitutional right is not ipso facto unrestrictable or illimitable. You can deny this, but then you’ve got an absurdly stupid world to put up with. If your worldview leads you to absurd stupidity, it’s not a good worldview. It’s wrong.
[quote]thunderbolt23 wrote:
[quote]Sloth wrote:
[quote]thunderbolt23 wrote:
For those that subscribe to the theory that the Second Amendment codifies the right of citizens to keep and bear arms to protect themselves from a tyrannical government, what arms are citizens entitled to as a matter of right?
All of them?
[/quote]
Yes, all of them. And that’s why it needs to be amended rather than being squinted at just right, with ones head cocked just so, while reading it from behind through a reflection in a mirror.
No, we shouldn’t be able to own personal nuclear weapons and doomsday viruses. But let’s do it right instead of pretending the text doesn’t say what it says. [/quote]
I don’t have a problem with this on its face, but are you including states too? States can’t restrict any arms? Or states can but the federal government cannot?
[/quote]
The states seem incapable of restricting the “right” to a marriage, a right absent from the constitution. Seems to me a logically consistent individual would have to say no to your question.
[quote]usmccds423 wrote:
[quote]smh_23 wrote:
[quote]usmccds423 wrote:
Cornell disagrees with you smh. “It guarantees freedom of expressionÃ???Ã???Ã???Ã???Ã???Ã???Ã??Ã? by prohibiting Congress from restricting the press or the rights of individuals to speak freely.”[/quote]
No, it very much does not. The “rights of individuals to speak freely” are proscribed by laws against certain kinds of free speech, and by the punishments thereattached. You aren’t going to get anywhere by trying this. A law against certain kinds of speech is a restriction of an unqualified Constitutional right. Unarguably.[/quote]
Cornell literally says, "It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of the individual to speak freely..
I don’t really know what else to say, do word matter or do they not? [/quote]
What are you talking about? Are you saying you don’t know what the First Amendment protects and prohibits? Are you saying that you think it’s not true that the First Amendment prohibits laws and sanctions against speech and against speakers for their speech? This is a serious question. A law prohibits a certain kind of speech – you don’t see that this is within the purview of “rights of the individual to speak freely”? This has always been the meaning – always. Text, spirit, intent.
Edited twice. I don’t really care what the point is – this is Constitution 101, and I am not going to spend any more time on it.
[quote]smh_23 wrote:
Law against “fire” in a crowded theater is a law proscribing the free exercise of some speech, some circumstances. Carry that out and you will see that even you don’t believe unqualified BOR protections are ipso facto protected from restriction.[/quote]
I mean, doesn’t the fire example already deal with one individual infringing upon the rights of the rest of the audience? The point is that one individual fraudulently alters the behavior of others. But what if there truly was a fire? Surely it’s not illegal to call out “fire” when there actually is one. But the first circumstance, where there is no fire, seems like a straight up case of actively infringing upon the rights of others (the rest of the audience, the theater owner, etc.).
I don’t see how applies to owning, carrying arms. Maybe firing over people’s heads. Pointing the weapon at them so there is a reasonable expectation of a threat.
[quote]usmccds423 wrote:
Because that doesn’t explain how it doesn’t apply. You don’t like nuclear armed individuals or militiamen, fine, neither do I, but that doesn’t change the wording and intent of the second.[/quote]
Doesn’t apply, as in “is impossible/absurd/stupid/fatuous.” Which is why I said we should revisit the Second Amendment.
[quote]
Once again, a weapon in a courtroom is not in keeping with the keeping and bearing of arms necessary to the security of a free state. Bearing arms in a court room, per your example, has exactly ZERO to do with the rights guaranteed and intent of the second. [/quote]
No. Already answered. I don’t have time to repeat myself. Operative clause, Heller and all that. If the prefatory clause suddenly alters the literal meaning of the text that follows it, then we can finish this discussion here and now, because the 2A entails no necessary individual right.
[quote]Sloth wrote:
[quote]smh_23 wrote:
Law against “fire” in a crowded theater is a law proscribing the free exercise of some speech, some circumstances. Carry that out and you will see that even you don’t believe unqualified BOR protections are ipso facto protected from restriction.[/quote]
I mean, doesn’t the fire example already deal with one individual infringing upon the rights of the rest of the audience? The point is that one individual fraudulently alters the behavior of others. But what if there truly was a fire? Surely it’s not illegal to call out “fire” when there actually is one. But the first circumstance, where there is no fire, seems like a straight up case of actively infringing upon the rights of others (the rest of the audience, the theater owner, etc.).
I don’t see how applies to owning, carrying arms. Maybe firing over people’s heads. Pointing the weapon at them so there is a reasonable expectation of a threat.[/quote]
It applies because it proves without question or controversy that a textually-unqualified Constitutional right – in this case, the right to free speech – is not ipso facto unrestrictable or illimitable. It isn’t an analogy, and no analogical correspondence is necessary. It is simply irrefutable evidence of the fact that a textually-unqualified Constitutional right is not ipso facto unrestrictable or illimitable. Were the previous sentence untrue, no law could proscribe any kind of speech whatsoever, under any circumstances, by any speaker – ever. My post a couple slots above goes into more detail.
[quote]smh_23 wrote:
[quote]usmccds423 wrote:
Because that doesn’t explain how it doesn’t apply. You don’t like nuclear armed individuals or militiamen, fine, neither do I, but that doesn’t change the wording and intent of the second.[/quote]
Doesn’t apply, as in “is impossible/absurd/stupid/fatuous.” Which is why I said we should revisit the Second Amendment. [/quote]
Okay, then we’ve already agreed on that then…
[quote]
[quote]
Once again, a weapon in a courtroom is not in keeping with the keeping and bearing of arms necessary to the security of a free state. Bearing arms in a court room, per your example, has exactly ZERO to do with the rights guaranteed and intent of the second. [/quote]
No. Already answered. I don’t have time to repeat myself. Operative clause, Heller and all that. If the prefatory clause suddenly alters the literal meaning of the text that follows it, then we can finish this discussion here and now, because the 2A entails no necessary individual right.[/quote]
So a militia can have a nuclear weapon then, right?
[quote]smh_23 wrote:
Edited twice. I don’t really care what the point is – this is Constitution 101, and I am not going to spend any more time on it.[/quote]
Lol, okay…
A last point: what I’m arguing against in this thread is an ahistorical, absurd, fringe theory. It’s nonsense. See TB’s third-from-last post in the other gun thread. Just a few lines before he began quoting, we find this (remember who marshals the majority’s evidence and reasoning in Heller):
[quote]
Like most rights*, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.[/quote]
[quote]usmccds423 wrote:
[quote]smh_23 wrote:
Edited twice. I don’t really care what the point is – this is Constitution 101, and I am not going to spend any more time on it.[/quote]
Lol, okay…[/quote]
Came off much pricklier than intended. I had asked questions about what you were getting at, but then I decided that I didn’t have the time. It is true, though, that the content of those posts is basic, uncontroversial, text-intent-spirit 1A meaning/operation. I wish I had said like that, rather than “I don’t really care.” I apologize for that – it wasn’t intentional, it was almost like a conversation with myself, via edits. Stupid. Anyway I am on my way out the door, unprepared for my meeting because I’ve been arguing in this thread for 24 hours, yadda yadda.
[quote]Sloth wrote:
[quote]smh_23 wrote:
Law against “fire” in a crowded theater is a law proscribing the free exercise of some speech, some circumstances. Carry that out and you will see that even you don’t believe unqualified BOR protections are ipso facto protected from restriction.[/quote]
I mean, doesn’t the fire example already deal with one individual infringing upon the rights of the rest of the audience? [/quote]
No. A person standing up and yelling “fire” has ZERO effect in and of itself on others in the audience. Further, I can walk into a movie, right this second, and yell fire. Nothing is stopping me. Even further still, what right of others is yelling “fire” infringing upon? The right to not be disturbed in a movie? I missed that one in the Bill of Rights.
The point is, the punishment is (or at least should be) for any negative consequences arising from the exercising of the right to free speech. In this case, if someone is trampled to death, the consequence of said speech is someone died and the person should probably be charged with manslaughter.
[quote]
The point is that one individual fraudulently alters the behavior of others. [/quote]
No they don’t, come on.
[quote]
But what if there truly was a fire? Surely it’s not illegal to call out “fire” when there actually is one. But the first circumstance, where there is no fire, seems like a straight up case of actively infringing upon the rights of others (the rest of the audience, the theater owner, etc.). [/quote]
What right is being infringed upon?
[quote]Sloth wrote:
The states seem incapable of restricting the “right” to a marriage, a right absent from the constitution. Seems to me a logically consistent individual would have to say no to your question.[/quote]
There has never been a court case that stated this. If you’re referring to the recent Obergefell v. Hodges case, note two things: it dealt with marriage, as a fundamental right, enumerated under the court’s interpretation of Due Process. Fundamental rights can include those not directly enumerated, like free speech is, in the Bill of Rights, e.g., the right to marriage and privacy rights, which includes a right to contraception or interstate travel.
The ruling only stipulated that the fundamental right to marry also extends to same-sex couples based on the Court’s interpretation of four explicitly distinct reasons. It did not rescind the ability of states to “restrict the right to marriage” carte blanche. As of right now, there are other types of arrangements that are excluded from that narrow ruling, recognizing the right of states to infringe on that fundamental right, e.g., the “right” to plural marriage, the right to marry an object, or the right to marry an animal, for example. So the states do have the right to restrict marriage to some degree, though same-sex couples or interracial couples are protected from having their fundamental right to marriage restricted by the states.
[quote]smh_23 wrote:
[quote]usmccds423 wrote:
[quote]smh_23 wrote:
Edited twice. I don’t really care what the point is – this is Constitution 101, and I am not going to spend any more time on it.[/quote]
Lol, okay…[/quote]
Came off much pricklier than intended. I had asked questions about what you were getting at, but then I decided that I didn’t have the time. It is true, though, that the content of those posts is basic, uncontroversial, text-intent-spirit 1A meaning/operation. I wish I had said like that, rather than “I don’t really care.” I apologize for that – it wasn’t intentional, it was almost like a conversation with myself, via edits. Stupid. Anyway I am on my way out the door, unprepared for my meeting because I’ve been arguing in this thread for 24 hours, yadda yadda.[/quote]
No worries.
I am simply trying to argue from the layman’s perspective anyway. I’m just reading what was written and when a phrase like “shall not be infringed” or “shall make no law… prohibiting the free exercise thereof; or abridging the freedom of speech” I don’t understand how we’ve gotten to a point where yelling “fire” is a crime in and of itself or that the framers really mean’t to limit the right to keep and bear arms even though they specifically, after much debate, wrote the right “shall not be infringed”. It says “shall not” it doesn’t say, “shall not except when new technology arise deemed too deadly for individual ownership” or “shall not except for military weaponry” or “shall not be infringed except at the discretion of the federal government or states governments”.
I get it though, Heller and all that, but SCOTUS isn’t infallible. Just read the Dredd Scott decision.
