2nd Amendment applies to non-1790's weapons

[136or142]

3.This is what you wrote:  "The clause "right of the people to keep and bear arms" as written, does not contain a condition that "arms" has a special definition which suspends time. It does not say "some arms"; it does not say "shall not be entirely infringed""

That reads to me like you think the Second Amendment is absolute.

So when looking for limits on fundamental rights listed in the Constitution, its easiest to look to  either the right protected (noun) or the limitation imposed (verb). Take the 1st Amendment. As written, it says "Congress shall make no law ... abridging the freedom of speech". That is also absolute wording, but we admittedly don't interpret it as such (except Hugo Black). The wiggle room is on what constitutes speech and what constitutes an abridgment.

Obscenity, imminent incitement to violence, slander, technically are all speech in that they are spoken words/printed ideas. Federal Courts however treat them as if they are, by definition, categorically excluded from the definition of speech. That's how the 1st Amendment's absolute language has largely been reconciled with the need for exceptions. I think you could do the same for the 2nd in regards to the definition of "arms" and carve out things like bombs or tanks or rockets as being categorically excluded from the definition of arms. But saying that the definition of arms is limited to only backward looking technology is not the same.

You can also look to what is being limited. As with the definition of "speech", this comes up with the 1st Amendment ban on the government "abridg[ing]" free speech or the right to assemble. Passing building code regulations which cap the number of people allowed in certain rooms impacts the right to assemble, but is generally not considered an abridgment. The 2nd Amendment prohibits "infringe[ment]" of the right to keep and bear arms. Clearly this wouldn't extend to ordinances on shooting in city limits, or bans on selling defective guns, or preventing convicts from buying guns after due process, or other government laws which impact guns but are not targeted at them.

In the case this whole thread is about, there was an absolute ban on stun gun ownership/possession/carry in Massachusetts. An absolute ban is clearly an infringement, so the only way this law could be good is if stun guns aren't "arms". Then the 2nd Amendment would not even apply. That they are arms has yet to be determined, but when the State court rehears the case, they are not allowed to argue that stun guns are not arms simply because they aren't from the 1790s.

1.I think you're making too much of the argument about whether the Second Amendment just applies to 1790s Arms, especially in discussing this with me.

Maybe I wasn't clear enough, but I wasn't seriously arguing that it did. As I was merely stating that sometimes Scalia (who is something of a hero to the Second Amendment absolutists) sometimes argued that the Constitution was meant to be treated literally ("Strict Constructionalist" and not looked at in terms of the modern context) and at other times argued for broad interpretations of the Constitution.  I believe it was Scalia himself who claimed that those judges who interpret the Constitution in terms of the modern context should call for the holding of a Constitutional Convention as the Constitution itself made no mention of it being interpreted differently depending on current circumstances.  So, I was just mocking the hypocritical, sleazy and corrupt Scalia.

2.I obviously can see common sense exceptions to the First Amendment guarantee of Freedom of Expression: incitement to violence, slander/libel, false advertising, copyright protection, ban on child pornography, 'yelling fire in a crowded theater' but I fail to see how obscenity fits into any of that.  All of the others are clearly harmful or tread on other rights, but obscenity doesn't.  That some people don't like it is no reason to consider it any different from any other form of protected speech.

If they want to argue against the clear protections of the First Amendment for all speech except where it is used to cause direct harm to the rights of other individuals, and since the claims are usually 'we have to ban this for the children' then the onus should be on those wanting to ban to prove a clear case of harm, and there is no such case when it comes to obscenity.  There are just prudes like the sleazy and hypocritical Judge Bork.

I don't know on what basis the courts excluded obscenity from First Amendment protections, claiming at one point that the First Amendment only protected 'political speech' or coming up with the idea of 'community standards', neither of which are mentioned in the First Amendment.

3.In regards to guns, the serious point I was making is that the Second Amendment, even leaving aside the militia part, only mentions the right to bare Arms, it does not mention that individuals have a right to bare or own every Arm or gun ever manufactured.  So, I think my argument that a legislature has a right to ban any Arm it wants to as long as it doesn't ban every Arm, is still valid.  That the Supreme Court refused to take the case on the Connecticut banning of 'assault rifles' clearly shows that they don't consider every Arm or gun to be protected by the Second Amendment, even if in refusing to take the case, they did not set a precedent.

[Slander and/or Libel]

Since all of the discussion here has been on the second half of the amendment, I'd like to hear a cogent case for what the pro-gun people believe the first half of the amendment means. Is it germane to its meaning at all? Is it a conditional clause? Is it just a bunch of throat clearing (in which case, why?)?

[muon2]

Since all of the discussion here has been on the second half of the amendment, I'd like to hear a cogent case for what the pro-gun people believe the first half of the amendment means. Is it germane to its meaning at all? Is it a conditional clause? Is it just a bunch of throat clearing (in which case, why?)?

I think this quote from Noah Webster captures what I think the authors had in mind as they wrote the first clause. Together the first two clauses were their justification for the right that followed.

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[Torie]

Since all of the discussion here has been on the second half of the amendment, I'd like to hear a cogent case for what the pro-gun people believe the first half of the amendment means. Is it germane to its meaning at all? Is it a conditional clause? Is it just a bunch of throat clearing (in which case, why?)?

I think this quote from Noah Webster captures what I think the authors had in mind as they wrote the first clause. Together the first two clauses were their justification for the right that followed.

You must be logged in to read this quote.

Well Noah Webster was not involved in writing the Bill of Rights, so I don't know why we should defer to him on the underlying policy, more than anyone else. If that is the underlying policy, that the people must have arms that are more than a match for the regular military, then the people at this juncture need "arms" like jets, and tanks, and maybe nukes for all I know, and certainly need rapid fire weapons.

So perhaps it might be wise and prudent to seek a different spin on all of this, no?

[Slander and/or Libel]

So by this formulation, we're to believe that the Second Amendment is in the Constitution so that the government will be afraid to take certain actions because citizens might shoot them to death?

[muon2]

Since all of the discussion here has been on the second half of the amendment, I'd like to hear a cogent case for what the pro-gun people believe the first half of the amendment means. Is it germane to its meaning at all? Is it a conditional clause? Is it just a bunch of throat clearing (in which case, why?)?

I think this quote from Noah Webster captures what I think the authors had in mind as they wrote the first clause. Together the first two clauses were their justification for the right that followed.

You must be logged in to read this quote.

Well Noah Webster was not involved in writing the Bill of Rights, so I don't know why we should defer to him on the underlying policy, more than anyone else. If that is the underlying policy, that the people must have arms that are more than a match for the regular military, then the people at this juncture need "arms" like jets, and tanks, and maybe nukes for all I know, and certainly need rapid fire weapons.

So perhaps it might be wise and prudent to seek a different spin on all of this, no?

Webster was active writing as a Federalist during the ratification of the Constitution and Bill of Rights. He worked closely with Hamilton in the 1790's. His commentary "An Examination into the Leading Principles of the Federal Constitution (1787)" is cited by a number of authors studying the intent of framers.

From what I've read, the second amendment was one that the Federalists and Anti-Federalists could generally agree on. They all feared a tyrannical central government of the type they saw in Europe. Here's Madison in Federalist 46,

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The British had large weaponry such as cannon, yet American writings of the time suggest to me their belief that a suitably large number of armed people could resist even a heavily armed oppressor. Of course the colonies had just done that. So Madison trusted that the American people should continue to bear arms.

[True Federalist (진정한 연방 주의자)]

The British had large weaponry such as cannon, yet American writings of the time suggest to me their belief that a suitably large number of armed people could resist even a heavily armed oppressor. Of course the colonies had just done that. So Madison trusted that the American people should continue to bear arms.

The Framers were by and large insensible to the necessity of the help received from France (and to a lesser extent Spain) in the success of their tax revolt. The War of 1812 did much to help those in government realize that when dealing with foreign foes, a professional military was a necessity.

[Torie]

So the citizens have the right to have the same munitions as the US army does, Muon2?

[muon2]

So the citizens have the right to have the same munitions as the US army does, Muon2?

That's not the way I read the passages from that time. I see those American writers describing a militia of the people in the same way I see Mao's strategy for his early army, one consisting of large numbers of lightly armed irregulars that could deflect and if necessary bring to a halt the army of a central government.

[Associate Justice PiT]

So the citizens have the right to have the same munitions as the US army does, Muon2?

That's not the way I read the passages from that time. I see those American writers describing a militia of the people in the same way I see Mao's strategy for his early army, one consisting of large numbers of lightly armed irregulars that could deflect and if necessary bring to a halt the army of a central government.

     It also reminds me of the Mujahideen in Afghanistan. While they did ultimately receive help from American armaments, they had a decent amount of success against a much more heavily armed Soviet force. Afghan dead greatly outweighed Soviet dead, yet the Soviets found themselves unable to quell revolt throughout Afghanistan because of the general opposition to Communist rule. Likewise, a true popular uprising, even lacking in the arms that the regular forces would have, could effectively resist by carrying sufficient backing among the people.

[Torie]

So the citizens have the right to have the same munitions as the US army does, Muon2?

That's not the way I read the passages from that time. I see those American writers describing a militia of the people in the same way I see Mao's strategy for his early army, one consisting of large numbers of lightly armed irregulars that could deflect and if necessary bring to a halt the army of a central government.

But lightly armed irregulars could not defeat today's army, as was the case then. So if the rational is the ability to defeat, then the type of arms is a moving target, akin to what is deemed "cruel and unusual." 

[True Federalist (진정한 연방 주의자)]

So the citizens have the right to have the same munitions as the US army does, Muon2?

That's not the way I read the passages from that time. I see those American writers describing a militia of the people in the same way I see Mao's strategy for his early army, one consisting of large numbers of lightly armed irregulars that could deflect and if necessary bring to a halt the army of a central government.

But lightly armed irregulars could not defeat today's army, as was the case then. So if the rational is the ability to defeat, then the type of arms is a moving target, akin to what is deemed "cruel and unusual." 

As I pointed out earlier, it wasn't lightly armed irregulars who beat the British Army during the Great American Tax Revolt, tho I agree the mythology built up in the U.S. over the years would lead one to think that. While the Rebels did depend upon a significant amount of irregular support, it was the Continental Army, infused with French artillery that made possible the victory at Saratoga, and don't forget the necessity of the support of both the French Army and Navy for the victory at Yorktown to have happened.

[muon2]

So the citizens have the right to have the same munitions as the US army does, Muon2?

That's not the way I read the passages from that time. I see those American writers describing a militia of the people in the same way I see Mao's strategy for his early army, one consisting of large numbers of lightly armed irregulars that could deflect and if necessary bring to a halt the army of a central government.

But lightly armed irregulars could not defeat today's army, as was the case then. So if the rational is the ability to defeat, then the type of arms is a moving target, akin to what is deemed "cruel and unusual." 

As I pointed out earlier, it wasn't lightly armed irregulars who beat the British Army during the Great American Tax Revolt, tho I agree the mythology built up in the U.S. over the years would lead one to think that. While the Rebels did depend upon a significant amount of irregular support, it was the Continental Army, infused with French artillery that made possible the victory at Saratoga, and don't forget the necessity of the support of both the French Army and Navy for the victory at Yorktown to have happened.

Yet it seems that the mythology was already in place as Madison was writing his Federalist articles.

[True Federalist (진정한 연방 주의자)]

So the citizens have the right to have the same munitions as the US army does, Muon2?

That's not the way I read the passages from that time. I see those American writers describing a militia of the people in the same way I see Mao's strategy for his early army, one consisting of large numbers of lightly armed irregulars that could deflect and if necessary bring to a halt the army of a central government.

But lightly armed irregulars could not defeat today's army, as was the case then. So if the rational is the ability to defeat, then the type of arms is a moving target, akin to what is deemed "cruel and unusual." 

As I pointed out earlier, it wasn't lightly armed irregulars who beat the British Army during the Great American Tax Revolt, tho I agree the mythology built up in the U.S. over the years would lead one to think that. While the Rebels did depend upon a significant amount of irregular support, it was the Continental Army, infused with French artillery that made possible the victory at Saratoga, and don't forget the necessity of the support of both the French Army and Navy for the victory at Yorktown to have happened.

Yet it seems that the mythology was already in place as Madison was writing his Federalist articles.

For better or worse, it was an era given to mythologizing,  And it is a myth with a kernel of truth as without popular support, the Revolution would have failed. The Southern strategy the British pursued might have worked had they been able to avoid alienating the non-Tories and push them into the Rebel camp.

[PikaTROD]

Now I'm no History or Constitutional Major, but really, someone's gotta do something about guns. I mean, now they allow guns in college classrooms Texas. That's insane! I mean, what!? Come on people! Open your eyes to what's actually going on in the world! Listen to the revolts at University of Texas.
#Cocks Not Glocks