2nd amendment penumbras

Texas_Curl

Texas_Curl

100+ Posts
www.concurringopinions.com/archives/2008/01/the_three_steps_2.html

i like this guy's thinking. if the 1st 4th 5th 6th and 8th amendments can be interpretted broadly, then so should the 2nd. if a right to privacy can be found in the penumbras of the bill of rights, then the right to gun ownership for self-defense must be in the shadows, too.

why is it that some people can read most of the bill of rights expansively, but can see only a narrow interpretation of the 2nd amendment?

hook'em
 
Which is it?

(A) we are limited only to those specific rights enumerated in the Bill of Rights etc. -- that is, if the right ain't expressly in the Constitution, we don't have it, or

(B) the Bill of Rights and the Constitution only prescribe what the government can and cannot do, including a specific list of particularly important rights that cannot be abridged -- that is, the Bill of Rights etc. should be read to say that the rights of the people include, but are not limited to, X Y and Z.

As for me, the government didn't give me, or any other person, rights. Instead, we chose to cede certain rights, WHICH WE HAVE BY THE VERY NATURE OF OUR EXISTENCE, to the government. And if we didn't cede a right, we retain it.

The government derives its power from ME.

I do NOT derive my rights from the Government.

Several of the founders were gravely concerned that, by even mentioning specific rights in the BOR, later folks would get it bass-ackwards and assume that we the people have ONLY those rights that are specifically listed, instead of reading it as a specific limitation on gov't power. As usual, the founders were right. We've got it bass-ackwards these days.
 
RWH -

Your mistaken, but not unique, understanding of the English language w.r.t. the 2nd Amendment was already vetted and disproven on this board. Why do you keep brining it up?

There is absolutely nothing in the Second Amendment that limits the right to militia use. As stated a million times before, it is a justification, not a limitation. It's the same as saying the following:

Procreation being necessary to the survival of a nation, the right to have sex shall not be infringed.

That doesn't say that you have to be procreating to exercise the right to have sex. It says that because we have to reproduce to survive, we're going to make sure that we can reproduce by making sure the government can't make any laws that infringe on having sex.
 
It has alot more to do with voting blocks and demographics than ideology. The prime supporters of second amendemnt rights are white suburban and rural voters, republicans . Gun violence is committed in urban areas, usually minorities, and falls into the democratic party demographics. So guess what, it has more to do with your supporters than what the actual framers intended.

Same with all the other liberal pushes, prison reform, miranda, etc, they were simply looking out for their voting blocks, inner city poor. The conservatives, republicans ,pushed back, looking out for their groups, namely the property owners.

Same with abortion, the vast percentage of abortiions are performed on the uneducated,poor, and minorities. So the democratic party tries to protect their desire to have frequent abortions, untetered by the state.
 
There's a little something called the Ninth and Tenth Amendments for those of you who are having trouble answering Brisketexan's dilemma.
 
Bingo, Huck. Or, as we sometimes characterize them, the "look, if you idiots don't get it, let's make it clear" amendments.
 
Look at the demographics of the democratic party, minorities,inner city, single women.

No wonder you get ;

(1) Gun Control
(2) Prison reform
(3) Abortion
(4) Miranda,search and seizure restrictions,etc.

That is why these issues are dead on arrival in the republican party. People that vote republican are less likely to be the victim of gun violence, to be charged in a criminal offense, get an abortion, or go to prison.
 
Under New York law, you cannot even touch a handgun in a gun shop unless you have a handgun permit. You have to have a permit to even touch one, let alone to own it. There is a large fee associated with the permit and it takes 30 days to process.
 
RWH's assertion is not without merit.

Brisket is right too.

The problem though, if we didn't reserve the right in the BOR's then under the broadly interpreted commerce clause and other similar clauses one can argue we the people have given Congress the right to legislate. In other words, there is very little interaction between citizens that can't be legislated through ordinary Congressional powers, UNLESS its in one of the Amendments. It's backassward, but its in the document and the eopinions.
 
Count me in the amen to BT crowd wrt the direction of power flow. The government exists at our pleasure and is permitted only to limit us insofar as we grant it specifically. The second amendment spells out a right so abhorrent to be infringed that the general prohibition against goverment usurpation is redundantly proscribed for this case.

We are free to exercise our rights only so long as we are willing to insist on them. Allowing the government to infringe rights not important to Tom or Dick but only to Harry will inevitably lead to the dissolution of all protections for all.
 
so kgp you would argue the commerce clause wouldn't allow gun prohibition if the 2nd amendment was not there?

I like the argument, I just think the Court has interpreted Congressional power too broadly to think there is much of anything left outside of the Amendments.
 
then how come without an amendment, some people seem to believe and argue there is a right to an abortion, education and medical treatment.
 
Of course, Kyrie, you understand that I am discussing the ownership and vesting of rights vis-a-vis the jurisdictions of man, not any "Higher" authority. I can certainly see numerous different theological takes and implications (which are of course historically intertwined with the concepts of natural law and natural rights), but I believe that the matter can be addressed without venturing down that road.
 
Who says Congress eliminated the militia? Take a look at TItle 10, Section 311 of the US Code:The Link

§ 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

There is no need to argue about the meaning of the 2nd amendment. The authors wrote all about it in the Federalist Papers. An armed citizenry is an essential ingredient of a democratic republic.
 
[sic]
rolleyes.gif


its a freaking message board, not newsprint, academic writing or the like.

I agree with BT regarding the source of the government's power; however, given the interpretation of the commerce clause, and gun control laws are adopted under the power granted through the commerce clause, it can easily be argued without the 2nd Amendment there would be no right. So it is not a redundant Amendment. In other words, the written document does not have to explicitly state Congress has the power to regulate gun ownership. Regulation of gun ownership is necessarily implicated by the right to govern channels of interstate commerce, unless we've gotten that wrong too. Which brings me to my next point, the document is intentionally vague so to allow constant movement in the interpretation of the document. So, founders' intent, while important, is not the end all be all of constitutional interpretation.
 
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