Anti-Christian attitudes in the U.S.? Would Jesus use this much electricity?

[chequita guevara]

It doesn't matter what the Framers wanted. What matters is what SCOTUS says now.

As for what the Framers wanted, what they wanted was the ability of the United States to defend itself without relying on a standing military. They felt that a standing military was the greatest threat to liberty. Guess what. We have one.

[Berzerker]

Ned -

Berz, I recommend reading the recent 9th Circuit decision on the Second Amendment. It gives a very good account of why the FF put it in the Bill of Rights and why it was placed there to protect the STATES' RIGHT to form militias. After reading this history, there is no doubt that the proscription was intended, as were all the original Bill of Rights, to restrain only FEDERAL power in this area. There was no intention to restrain STATE power, as the very purpose was to protect STATES RIGHTS.

"A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" (from memory)

If it was the goal of the Framers to give only the states a right - a right to have militias - why did they attach the only right mentioned in the amendment to the people? Why did they even mention the people? Which state gets this right to form a militia? I see only one state and one militia mentioned there? Why is that? Because they were giving their rationale as to why the states needed militias and why that included the right of the people to keep and bear arms.

Now, of course the BoR applied only to Congress back then. The Congress voted in the 1790's on whether or not the BoR applied to the states and the House voted that it did apply to the states and the Senate voted it did not. But the 14th Amendment changed that dynamic by creating a dual citizenship for Americans - state citzens and US citizens - and the states could no longer violate our rights as US citizens. But my point is the ACLU relies on the 14th Amendment to impose the establishment clause on the states while ignoring our right to keep and bear arms.

JCC -

Why are you so horny over the founding fathers? What makes you think we should care what they may or may not have wanted?

They set up a good framework for a government, but times have changed. We can go beyond what they set forth. Quit treating them like Mohammed. They're just men... very very dead men.

Its called the rule of law, either we have it or we don't. We don't, we have the rule of men because too many people stopped respecting the Constitution...

chegitz -

The 2nd Amendment has a very powerful and well funded organization defending it. It doesn't need the help of the ACLU, which has it's resources spread thin defending the other nine amendments in the BoR.

Did Rush Limbaugh need help?

[Ned]

Originally posted by Berzerker
Ned -

"A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" (from memory)

If it was the goal of the Framers to give only the states a right - a right to have militias - why did they attach the only right mentioned in the amendment to the people? Why did they even mention the people? Which state gets this right to form a militia? I see only one state and one militia mentioned there? Why is that? Because they were giving their rationale as to why the states needed militias and why that included the right of the people to keep and bear arms.

I gave the answer to this question previously. The stated concern at the time was that the Feds could effectively ban Militias by proscribing the keeping and bearing of arms by the people. This actually happened in the late Roman Empire (and was one of the reason the Barbarians had little difficulty with the citizenry after they had overrun the frontier legions), and was attempted by the Brits in 1776 just prior to the outbreak of hostilities in New England.

[Mr. Harley]

There is a second argument reference the origins of the 2nd Amendment. That it was intended to give the people the ability to defend themselves against tyranny, i.e the revolution. Note that the American Revolution had just been fought against a tyrannical government. Nobody knew at the time if the grand experiment would endure as a Republic for over two centuries, so it was added to give the people an additional insurance policy if democratic principles would fail.

The problem is, as posted earlier, that what matters at this point is what 5 justices of SCOTUS say. Note my numerous posts about one of my three top reasons to oppose the Bush adminstration. Look at my more recent one on Gonzales under the torture thread, all of which is old hat to me, I knew about it before the election.

Freedom is a process, and right now we have elements in the Republican party with both the power and the desire to circumvent process in the interests of prevailing (there are also elements like this in the Democratic party, but they are lacking that little thing called power). That is why I have been pleasantly not as disappointed by Scalia. While I may disagree with him over the 9th and 10th amendments, i.e. he almost always defers to state versus individual rights when it comes down betweeen those two in the context of any powers not given to the feds are reserved for states or individuals, he at least understands how the process is what protects our rights, unlike Thomas.

Gonzales is going to be frightening. Look at his memos, and then you will realize here is an individual who belives in expediency and results at a level that would make the Warren court blush. He is one of Bush's primary nominees for SCOTUS. Be scared, be very scared.

[Ned]

Shawn, you might be surprised at this, but at the time, the colonists were still afraid that the Federal Government would become a tyranny and run roughshod over the States, who at the time were perceived to be virtually independent countries by their citizens. One perceived method for imposing a tyranny was to strip the states of their Militias.

The fact that the South actually seceded when they perceived the Federal Government had in fact become a tyranny fully illustrates this point.

[Berzerker]

Ned -

I gave the answer to this question previously. The stated concern at the time was that the Feds could effectively ban Militias by proscribing the keeping and bearing of arms by the people. This actually happened in the late Roman Empire (and was one of the reason the Barbarians had little difficulty with the citizenry after they had overrun the frontier legions), and was attempted by the Brits in 1776 just prior to the outbreak of hostilities in New England.

You didn't answer my questions, you merely repeated your assertion that the 2nd Amendment was designed to create a state's right to have a militia and had nothing to do with a right to keep and bear arms. My God Ned, why can't the amendment speak for itself?

If it was the goal of the Framers to give only the states a right - a right to have militias - why did they attach the only right mentioned in the amendment to the people? Why did they even mention the people? You didn't answer these questions and they show the illogic in your interpretation.

[Mr. Harley]

Ned, not at all - as in be surprised. I know about the state issue. However, it has a context. The entire Bill of Rights was created to limit the powers of government, both state and federal. Many clauses of the constituion, i.e. there shall be no religious tests for office, stem from the fear of any government being tyrannical, including local.

One can argue that in the context of the time, state government was seen as THE representative of the people. So within that context both the militia interpretation, and the individual opposing a tyrannical government, make sense. Many of the issues we have today are things that the fundres never conceived. By the way, the federalization of the National Guard could be seen as a significantly greater constitutional threat than any gun control laws, yet there was nary a squawk when it happened.

However, for all our arguments back and forth, Ned, the one poster made the point. What matters at this point is what five justices on SCOTUS say. I want neither lef-wing or right-wing activists, which is why Gonzales is truly frightening - result based legal opinions. I've also changed how I've written about Scalia in the last year, his finding in the detention case along with Stevens was courageous, while the other seven justices, both left and right, found for expediency and saftey (i.e. Stevens and Scalia together said either charge them, or let them go. Period.)

[Ned]

Originally posted by Berzerker
Ned -

You didn't answer my questions, you merely repeated your assertion that the 2nd Amendment was designed to create a state's right to have a militia and had nothing to do with a right to keep and bear arms. My God Ned, why can't the amendment speak for itself?

If it was the goal of the Framers to give only the states a right - a right to have militias - why did they attach the only right mentioned in the amendment to the people? Why did they even mention the people? You didn't answer these questions and they show the illogic in your interpretation.

Berz, lets take this a little slower. The States, or at least the Southern States, were concerned that the Federal Government could effectively eliminate or cripple the States' right to form a militia by banning the keeping of arms by the people. In that era, States had no standing armies, but called on the people to form up during times of hostilities. They were expected to bring their own weapons with them at such times and were expected to keep arms at home during times of peace. If the Federal Government had the power to ban private ownership of weapons of war by the people, the States feared their ability to raise militias would be crippled even though they were not outright banned by Federal law.

Thus the structure of the Amendment. The Federal government was prohibited from banning the private ownership of weapons of war by the people in order that State may form militias.

The second amendment has nothing to do with guns for hunting or for protection of one's home from intruders. It has everything to do with keeping weapons of war, like assault rifles.

But note, States are not banned under the Amendment and may legally regulate and ban such weapons. Some have. What they have done is not unconstitutional IMHO.

[Ned]

Shawn, your criticism of Gonzales is that he is a judicial liberal, not a strict constructionist. But, as he is only an AG, I don't think this is much of a problem as all he gets to do is argue his position before the Court. We can address his appointment to the Supreme Court if and when that event comes to pass.

[Berzerker]

Ned -

Berz, lets take this a little slower. The States, or at least the Southern States, were concerned that the Federal Government could effectively eliminate or cripple the States' right to form a militia by banning the keeping of arms by the people.

How does that translate into "peoples right to keep arms != peoples right to keep arms"? You obviously can't answer my questions...

In that era, States had no standing armies, but called on the people to form up during times of hostilities. They were expected to bring their own weapons with them at such times and were expected to keep arms at home during times of peace. If the Federal Government had the power to ban private ownership of weapons of war by the people, the States feared their ability to raise militias would be crippled even though it was not outright banned by Federal law.

And? Nothing you've said shows the 2nd Amendment does not contain a right belonging to the people. And if that is a federal right like the rest of the BoR, then it is a right the states cannot violate either.

The second amendment has nothing to do with guns for hunting or for protection of one's home from intruders. It has everything to do with keeping weapons of war, like assault rifles.

But note, States are not banned under the Amendment and may legally regulate and ban such weapons. Some have. What they have done is not unconstitutional IMHO.

Thats because the 14th Amendment has not been applied to the states even today. It took ~90 years before the civil rights of various peoples got some protection because of the reluctance of the courts and Congress to enforce it against the states when it was politically unfeasible.

[Mr. Harley]

Ned, did you link to the memos in the torture thread?

www.apolyton.net/forums/showthread.php?s=&threadid=127081&pagenumber=3

Not liberal Ned, activist. As in the results justify the means. His desired results are anything but liberal, don't buy into the BS Ned, you are smarter than that. You know I loathe activists from both sides, at one point in the eighties I was a member of the NRA due to Democratic activists. Now the Republican ones are making themselves intolerable.

Also look at his record in Texas. I do not consider this alarmist as Bush would very much like to appoint him to SCOTUS, he's been pretty obvious. The only thing that could stop it is if a large enough constituency raises a big enough cry that the Democrats in the Senate get a spine and filibuster him.

If the man is willing to write these memos while disagreeing with everything he writes, then he is a whore, as in selling his principles for power, money, et al (lawyers can resign, you know). Also, that means he wrote in only to justify something his boss, as in Bush, specifically directed. You cannot have it both ways Ned. Either Bush is genuine threat to the principles of freedom this country was founded on, or Gonzales is. I firmly believe it is both, and I think that what I'm posting here is consistant with what I've written in the past. I will admit to being partially mistaken in these areas, I have retracted part of what I've said about Scalia, and fine-tuned my disagreement with the rest (but I didn't have to do that for Thomas ).

[Ned]

Shawn, the very definition of conservative is follow the constitution, law and precedent strictly. A liberal views all theses as "flexible" in order to impose his or her agenda. That is what I meant.

Certainly, Roe v. Wade was a "liberal" holding.

I think your complaint about Gonzales is that he acted as a advocate for his client. That, however, is what good lawyers do. Your complaint is misplaced.

[Ned]

Berz, you and I would seem to agree that the Second Amendment was directed at the Federal Government originally. It told them to leave their hands off the people's military guns. It said nothing about the States.

What we disagree about is whether the States too are banned via the 14th Amendment and the doctrine of "substantive due process." We both agree that the Supremes have not addressed this issue.

What has to be demonstrated is that the right to bear arms to form militias, which is the right mentioned in the Second Amendment, is a fundamental liberty of the people themselves. I would argue that there is no such clear right against the actions of the States themselves, for it would be ludicrous for a person to argue that they have a right to keep arms to form a state militia when the state itself said that it wants to ban militias and private arms.

[Giancarlo]

Originally posted by chegitz guevara
As for what the Framers wanted, what they wanted was the ability of the United States to defend itself without relying on a standing military. They felt that a standing military was the greatest threat to liberty. Guess what. We have one.

We all knew that we would of not been able to defend in the disarray the US was in before the establishment of a stronger federal government. No wonder you are a commie.. you misinterpret what the framers really wanted.

[Berzerker]

Gian, chegitz is right. Congress has the power to raise the armies to fight the wars Congress declares, not keep them into perpetuity. And if you look at US history, this is how Congress operated for the most part up until actual wars were being waged.