NRA

[detbuch]

Originally Posted by Jim in CT

"If a total ban would be blatantly unconstitutional, why are partial bans not unconsitutional?"

Good question. My best answer is that we had a ban in 1994, and as far as I know, it was not struck down by the Supreme Court.

There are two constitutional problems to consider in regards to the SCOTUS not striking down the 1994 ban. First, the NRA did not challenge the law on Second Amendment grounds. It feared, rightly or wrongly, that the Court would be inimical on those grounds. So the direct constitutional Second Ammendment restriction on the Federal Government to impose such a ban was not tested. Although, one of the provisions, which required state law enforcement to implement the Federal requirement to do the background checks was struck down on the grounds that the Federal Gvt. cannot compel the states to enforce its policies. Second the rest of the act was upheld under the infamous precedent created by the FDR Court that applies the Commerce Clause to INTRAstate commerce rather than being restricted to the power to "regulate" INTERstate commerce.

But that doesn't answer my question. If a total ban is unconstitutional, why is a partial ban not unconstitutional? What part of the ban is Constitutional? If the Commerce Clause can be stretched to include any commerce whatsoever, as it has been construed since FDR, how would a total ban be unconstitutional? Or, for that matter, since just about anything we do is in some way related to commerce, how would a Federal ban on anything else be unconstitutional. So, by interpreting the Commerce Clause in this way, which obviously renders the Constitution moot, we will be allowed to do and buy or sell those things that the Federal Government deems necessary or harmless, and we will be restricted to those rights that the government grants us rather than it being restricted to those rights we have granted to it. And if you think that serious gun control advocates just want to restrict scary looking guns, or only those with the capacity to kill more people quickly, you haven't been paying attention.

"Or are they just not "blatantly" unconstitutional?"

That's part of the debate I'd like to see. As I have said repeatedly, I wouldn't support any ban that was unconstitutional. That would need to be a significant part of any considered legislation.

The debate will go along the lines that have been drawn in this thread. So you are already seeing the debate here. The things being said here are as "reasonable" as the debate will get. And, probably, emotional arguments and "numbers" arguments will prevail at least to some degree, and we will get a "reasonable" bill passed. Whether or not it will actually be constitutional will be irrelevant. The common view that we must wait for SCOTUS debate to discover constitutionality absolves us from understanding the Constitution ourselves. It was written for us, not for the government except to give it bounds that it was not to trespass. It was written by people like us--farmers, mechanics, artisans, shopkeepers, as well as scholars and lawyers--for us. It was an improbable gift that might never be offered again. It was originally simply and directly put, but was made incomprehensible by successions of "interpretation" and bad case law so that only a small portion of it now is even given so-called "strict scrutiny," the rest being handed over to the Federal Government branches to say what it means. And that small portion given strict consideration is what's left of the bill of rights. And those are being worked on by politicians and judges--as attested to by increasing attempts at "gun control" as well as speech, property, and religious restrictions, against us rather than reserving them as the people's rights.

When you say that you wouldn't support any ban that wasn't constitutional, that implies you have an understanding of what is constitutional. If so, why must you wait for SCOTUS decisions, which have already muddied the Constitution into a swamp of judicial and congressional and executive whim, to find out?

[spence]

Originally Posted by detbuch

When you say that you wouldn't support any ban that wasn't constitutional, that implies you have an understanding of what is constitutional. If so, why must you wait for SCOTUS decisions, which have already muddied the Constitution into a swamp of judicial and congressional and executive whim, to find out?

So the SCOTUS is irrelevant on the Second Amendment? I seem to remember the Heller decision being applauded among many gun rights advocates while it also seems to back Jim's position.

-spence

[detbuch]

Originally Posted by spence

So the SCOTUS is irrelevant on the Second Amendment? I seem to remember the Heller decision being applauded among many gun rights advocates while it also seems to back Jim's position.

-spence

Heller was a chip in the right direction. It addressed gun ownership in light of the Second Ammendment, not the Commerce Clause. I don't think it addressed Federal regulations in light of the Second Ammendment.

Originally, and as it was adjudicated throughout the 19th Century, the Second Ammendment was strictly a prohibition against the Federal Government. States were allowed restrictive gun laws if they so chose. Heller now, at least affirms, that the states cannot abridge the Second Ammendment in regards to arms in common use. But it still leaves the door open for state restrictions of other types of weapons. Which is why I also asked Jim, and he didn't answer, if he thought the Constitution, as it was written, placed the issue of gun control under state jurisdiction or Federal. Which is why I also asked you why you thought the Constitution made it impossible to implement The Specialist's suggestions on gun regulation.

So, under what Constitutional provision, enumeration, whatever, does the Federal Government have the power to legislate individual gun ownership? And if the answer is the Commerce Clause, or General Welflare Clause, that is mostly the kind of non-sensensical, muddied-up "interpretation" that has pretty much made the Constitution a toy for judges rather than a structure of government, and is the type of "interpretation" that Madison referred to when he said "If not only the means but the objects are unlimited, the parchment should be thrown into the fire at once."

[Pete F.]

I've got it
Make them green
The politicians will fund them, liberals will want them and the conservatives will get rid of theirs.

[buckman]

With Eric Holder and Joe Biden in charge Obamas about to try to slam this down our throats by Executive Order.
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[ReelinRod]

Originally Posted by detbuch

I don't think it addressed Federal regulations in light of the Second Ammendment.

Heller settled the "fundamental right" question, at least for self-defense. This determines the level of scrutiny applied to contested law.

Originally Posted by detbuch

Originally, and as it was adjudicated throughout the 19th Century, the Second Ammendment was strictly a prohibition against the Federal Government. States were allowed restrictive gun laws if they so chose. Heller now, at least affirms, that the states cannot abridge the Second Ammendment in regards to arms in common use.

McDonald v Chicago in 2010 finally applied the 2nd Amendment to the states via the due process clause of the 14th Amendment (Incorporation). The primary outcome of Heller was the invalidation of the "militia right" and "state's right" perversions inserted into the federal courts in 1942 by the First and Third Circuits. This ended 70 years of lower federal and state courts being off the rails and forced them into the constitutional holding that SCOTUS has consistently held for the right to arms for 170 years.

Originally Posted by detbuch

But it still leaves the door open for state restrictions of other types of weapons.

"Type" of weapon is of vital importance to answering the question of what restrictions are constitutional. I addressed this a ways back.

Originally Posted by ReelinRod

Governments can only claim power to restrict "dangerous or unusual' arms. But . . . government does not get to begin its action presuming the arm is "dangerous and unusual" because it doesn't think the citizens have any good reason to own it, or it isn't used in hunting (i.e., the present idiotic "Assault Weapons" ban hoopla).

The Supreme Court in 1939 established the criteria for courts (and presumably legislatures ) to determine if an arm is afforded 2nd Amendment protection.

If the type of arm meets any one of them then it cannot be deemed 'dangerous and unusual' and the right to keep and bear that weapon must be preserved and any authority claimed by government to restrict its possession and use is repelled.

Those criteria state that to be protected by the 2nd Amendment the arm must be:

• A type in common use at the present time and/or
• A type usually employed in civilized warfare / that constitute the ordinary military equipment and/or
• A type that can be employed advantageously in the common defense of the citizens.

Failing ALL those tests, the arm could then and only then be argued to be "dangerous and unusual" and the government would be permitted to argue that a legitimate power to restrict that type of arm should be afforded .

"Dangerous and Unusual" is what's left after the protection criteria are all applied and all fail . . . Think of it as legal Scrapple . . .

Originally Posted by detbuch

Which is why I also asked Jim, and he didn't answer

That seems to be a common theme here among those who are proposing sweeping gun control (at least when one is discussing the Constitution and the law 1, 2, 3, . . . assorted red herrings and tangential diversions into the weeds are engaged with enthusiasm though).

Originally Posted by detbuch

So, under what Constitutional provision, enumeration, whatever, does the Federal Government have the power to legislate individual gun ownership?

There is none.

No power was ever granted to the federal government to have any interest whatsoever in the personal arms of the private citizen and in fact, the private citizen and his personal arms are twice removed from any Congressional "militia" authority.

People forget (purposely I think) what the framers considered the nature of our rights to be . . . To them, rights were "exceptions of powers never granted" . . . essentially the "great residuum" of everything not conferred to government. It was asked, why add a "bill of rights" to a specific, clearly defined "bill of powers"?

The Federalists argued emphatically against adding a bill of rights; to them a bill of rights was considered a redundant and dangerous absurdity.

A bill of rights "would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

Of course the Federalists "lost" the debate over adding a bill of rights but the 9th and 10th Amendments stand as testament to the universally accepted status of their arguments.

Originally Posted by detbuch

And if the answer is the Commerce Clause, or General Welflare Clause, that is mostly the kind of non-sensensical, muddied-up "interpretation" that has pretty much made the Constitution a toy for judges rather than a structure of government, and is the type of "interpretation" that Madison referred to when he said "If not only the means but the objects are unlimited, the parchment should be thrown into the fire at once."

But it is precisely that kind of invented powers that the left needs and rests its arguments on.

Now it is being threatened that gun control measures will be "enacted" through Executive Order.

Are these Constitutional idiots really that stupid?

Can any supporter of this administration explain how gun control can be "enacted" by EO?

[scottw]

Originally Posted by ReelinRod

Are these Constitutional idiots really that stupid?

Can any supporter of this administration explain how gun control can be "enacted" by EO?

he doesn't really want to sidestep Congress...but he's being forced to...it's in our best interest

these guys are funny....

January 8, 2013

"CNN and the gun grabbing media are now calling for Alex Jones to be shot the day after his heated appearance with Piers Morgan.

In a segment on Piers Morgan’s CNN program, sports columnist for the Daily Beast, Buzz Bissinger, shockingly states:

“I don’t care what the justification is that you’re allowed in this country to own a semi-automatic weapon – much less a handgun. But what do you need a semi-automatic weapon for? The only reason I think you’d need it is, Piers, challenge Alex Jones to a boxing match, show up with a semi-automatic that you got legally and pop him.”

Abby Huntsman (Huffington Post) : “I’d love to see that… [laughter] in uniform.”

Piers Morgan: “I’ll borrow my brothers uniform.”"



"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the People."
— Tench Coxe, 1788

[scottw]

Originally Posted by ReelinRod

That seems to be a common theme here among those who are proposing sweeping gun control (at least when one is discussing the Constitution and the law 1, 2, 3, . . . assorted red herrings and tangential diversions into the weeds are engaged with enthusiasm though).

you are also discussing the Constitution in many case with people who have little knowledge and even less respect for the Constitution and who are more interested in finding ways around it rather than following it....which is why it's often a frustrating one sided argument...like yelling at a wall

[JohnnyD]

Originally Posted by scottw

you are also discussing the Constitution in many case with people who have little knowledge and even less respect for the Constitution and who are more interested in finding ways around it rather than following it....which is why it's often a frustrating one sided argument...like yelling at a wall

My new motto for 2013:
"You cannot reason with the unreasonable."

I started this the end of 2012 and it has actually been quite nice. Some people have an irrational, emotional commitment to some positions and there's no changing their view or having a rational conversation - like trying to convince spence that Obama doesn't walk on water (I joke spence).

[TheSpecialist]

One thing people do not realize is that when the constitution was written MILITIA was anybody and everybody who lived in the town. Nowadays people refer to the National Guard as the MILITIA, but that is really just a Federal peacetime Army which can be activated at anytime, hence not a MILITIA

I really think there can be some things done to help unfortunately there are too many radicals on both sides of the aisle, and the Left never wants to listen to those in the know.

[Fishpart]

The intent of the framers was to have an armed citizenry to prevent TYRANNY. If the emperor knows the people are unarmed, he is free to do whatever he wants. If you look at the dictators of the 20th century, they all began their climb to power by disarming the citizenry..

[RIJIMMY]

Originally Posted by buckman

With Eric Holder and Joe Biden in charge Obamas about to try to slam this down our throats by Executive Order.
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this is what scares me

[TheSpecialist]

Originally Posted by RIJIMMY

this is what scares me

Obama has nothing to lose now, he can not run again so his real "It's my way or the highway" persona will show through..

[JohnnyD]

Originally Posted by TheSpecialist

Obama has nothing to lose now, he can not run again so his real "It's my way or the highway" persona will show through..

As an individual, Obama has nothing to lose. As a party, the Democrats were completely destroyed in the election after the last time they passed the FAWB.

This is why I think Obama is trying to exploit Executive Orders in order to push a gun-control agenda. It gives the Democratic legislators "plausible dependability" so that Republicans can't point at the incumbents during the next election and say "that guy voted to take away your freedoms. That guy found it less important to focus on a balanced budget and resolving our fiscal time bomb than the importance he put in making law-abiding citizens less safe in their own homes."

[Carl]

More stuff about background checks:

As of 2010, federal law does not prohibit members of terrorist organizations from purchasing or possessing firearms or explosives.

Between February 2004 and February 2010, 1,225 firearm and three explosives background checks for people on terrorist watch lists were processed through the federal background check system. Of these, 91% of the firearm transactions and 100% of the explosives transactions were allowed

Under federal law, individuals who have been convicted of a felony offense that would typically prohibit them from possessing firearms can lawfully possess firearms if their civil rights are restored by the requisite government entities. As of 2002, 15 states automatically restore the firearm rights of convicts upon their release from prison or completion of parole, and 6 other states automatically restore the firearm rights of juvenile convicts upon their release from prison or completion of parole.

To undergo a background check, prospective gun buyers are required by federal regulations to present "photo-identification issued by a government entity." Using fake driver's licenses bearing fictitious names, investigators with the Government Accountability Office had a 100% success rate buying firearms in five states that met the minimum requirements of the federal background check system. A 2001 report of this investigation states that the federal background check system "does not positively identify purchasers of firearms," and thus, people using fake IDs are not flagged by the system


Now, I do agree with having a background check system. Not everyone should be allowed to own a gun. But I have an issue with the government telling me I cannot legally and lawfully own a certain gun / # of bullets / size of magazine because someone who should have never had a gun in the first place committed a hideous crime, which in many cases could have been prevented if the government did what they were supposed to do (both support and enforce the all the current laws and regulations)

[Backbeach Jake]

Originally Posted by Carl

More stuff about background checks:

As of 2010, federal law does not prohibit members of terrorist organizations from purchasing or possessing firearms or explosives.

Between February 2004 and February 2010, 1,225 firearm and three explosives background checks for people on terrorist watch lists were processed through the federal background check system. Of these, 91% of the firearm transactions and 100% of the explosives transactions were allowed

Under federal law, individuals who have been convicted of a felony offense that would typically prohibit them from possessing firearms can lawfully possess firearms if their civil rights are restored by the requisite government entities. As of 2002, 15 states automatically restore the firearm rights of convicts upon their release from prison or completion of parole, and 6 other states automatically restore the firearm rights of juvenile convicts upon their release from prison or completion of parole.

To undergo a background check, prospective gun buyers are required by federal regulations to present "photo-identification issued by a government entity." Using fake driver's licenses bearing fictitious names, investigators with the Government Accountability Office had a 100% success rate buying firearms in five states that met the minimum requirements of the federal background check system. A 2001 report of this investigation states that the federal background check system "does not positively identify purchasers of firearms," and thus, people using fake IDs are not flagged by the system


Now, I do agree with having a background check system. Not everyone should be allowed to own a gun. But I have an issue with the government telling me I cannot legally and lawfully own a certain gun / # of bullets / size of magazine because someone who should have never had a gun in the first place committed a hideous crime, which in many cases could have been prevented if the government did what they were supposed to do (both support and enforce the all the current laws and regulations)

Amen.

[spence]

Originally Posted by detbuch

Heller was a chip in the right direction. It addressed gun ownership in light of the Second Ammendment, not the Commerce Clause. I don't think it addressed Federal regulations in light of the Second Ammendment.

Originally, and as it was adjudicated throughout the 19th Century, the Second Ammendment was strictly a prohibition against the Federal Government. States were allowed restrictive gun laws if they so chose. Heller now, at least affirms, that the states cannot abridge the Second Ammendment in regards to arms in common use. But it still leaves the door open for state restrictions of other types of weapons. Which is why I also asked Jim, and he didn't answer, if he thought the Constitution, as it was written, placed the issue of gun control under state jurisdiction or Federal. Which is why I also asked you why you thought the Constitution made it impossible to implement The Specialist's suggestions on gun regulation.

So, under what Constitutional provision, enumeration, whatever, does the Federal Government have the power to legislate individual gun ownership? And if the answer is the Commerce Clause, or General Welflare Clause, that is mostly the kind of non-sensensical, muddied-up "interpretation" that has pretty much made the Constitution a toy for judges rather than a structure of government, and is the type of "interpretation" that Madison referred to when he said "If not only the means but the objects are unlimited, the parchment should be thrown into the fire at once."

It's interesting that in demanding an answer you refuse, in advance, to accept the proper one.

That the Commerce Clause has been subject to liberal interpretation isn't really the issue...it is what it is...and there's a massive body of legislative interpretation that is now part of our society. Even in Heller the most conservative members of the SCOTUS appear by my reckoning to affirm the Federal Government's power to regulate firearms with some limits.

-spence

[scottw]

Originally Posted by spence

It's interesting that in demanding an answer you refuse, in advance, to accept the proper one.

That the Commerce Clause has been subject to liberal interpretation isn't really the issue...it is what it is...and there's a massive body of legislative interpretation that is now part of our society. Even in Heller the most conservative members of the SCOTUS appear by my reckoning to affirm the Federal Government's power to regulate firearms with some limits.

-spence

legislative interpretation

interesting phrase...I had to Google it....I'll let Detbuch evicerate you on the rest

[spence]

Originally Posted by scottw

legislative interpretation

interesting phrase...I had to Google it....I'll let Detbuch evicerate you on the rest

I'd like him to explain why Scalia, Roberts, Thomas and Alito are all flaming lefties.

-spence

[scottw]

Originally Posted by spence

I'd like him to explain why Scalia, Roberts, Thomas and Alito are all flaming lefties.

-spence

maybe you could explain

[spence]

Originally Posted by JohnnyD

As an individual, Obama has nothing to lose. As a party, the Democrats were completely destroyed in the election after the last time they passed the FAWB.

The 1994 sweep didn't happen because of the assault weapons ban, if anything that was a late sideshow...the GOP was successful because they ran against excess attributed to longstanding control by Dem's and the Contract With America.

This is why I think Obama is trying to exploit Executive Orders in order to push a gun-control agenda. It gives the Democratic legislators "plausible dependability" so that Republicans can't point at the incumbents during the next election and say "that guy voted to take away your freedoms. That guy found it less important to focus on a balanced budget and resolving our fiscal time bomb than the importance he put in making law-abiding citizens less safe in their own homes."

I assume you meant plausible denialability?

-spence

[spence]

Originally Posted by ReelinRod

Can any supporter of this administration explain how gun control can be "enacted" by EO?

It would likely depend on what the order was. I believe Both Bush 41 and Clinton used it to restrict firearms by citing previous law. The more sweeping the order the less likelihood it would stand legal challenge.

-spence

[scottw]

Originally Posted by spence

I assume you meant plausible denialability?

-spence

more likely..... "deniability"

[spence]

Originally Posted by scottw

more likely..... "deniability"

Yes, glad to see we can agree

-spence

[scottw]

Originally Posted by spence

Yes, glad to see we can agree

-spence

that would be difficult to determine...that's the second term you've used today that turns up nothing when you Google it couldn't even find that in the Urban Dictionary

[spence]

Originally Posted by scottw

that would be difficult to determine...that's the second term you've used today that turns up nothing when you Google it couldn't even find that in the Urban Dictionary

Legislative interp was meant to infer a lot of legislation has been interpreted and found Constitutional by the Judicial branch. Doubt it's a standard phrase...
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[detbuch]

Originally Posted by spence

It's interesting that in demanding an answer you refuse, in advance, to accept the proper one.

If the "proper one" is in dispute, and I join that dispute in my opinion, therefor believing that the "proper one" is improper, how am I somehow required to disavow my own argument before I can argue?

Besides, I don't know WTF you're talking about.

That the Commerce Clause has been subject to liberal interpretation isn't really the issue...it is what it is...and there's a massive body of legislative interpretation that is now part of our society.

It is not an issue in the Heller case because it was not invoked. That the Commerce Clause has been subject to liberal mis-interpretation is most definitely an issue. And much of that "liberal interpretation" can and should be struck down. Stare decisis is binding on the lower courts (though even they don't always abide by it). But it is not binding on the SCOTUS. SCOTUS has reversed "interpretations" just as the "liberal interpretations" were reversals of original understanding from the founding through most of the 19t century. Those original interpretations began to be chipped away by progressive legislators and judges especially from FDR on. They have transformed the Constitution as written (and intended) into a shadow structure of what it originally was, and whose "meaning" is ad hoc determination dependant on the preference of politicians and judges. It no longer constrains them as it was meant to do, but gives them the cover of authority as they twist it to their desired ends. That is what is now part of our society. And I contend that is the major reason that our governmental "system is broken". And why we are, as a nation, steeped in unsustainable debt, and have to constantly resort to tweaking and manipulating and raising debt ceilings and taxes, and why the Federal Government is now a top-down progenitor of law, regulation, and fixer of societies ills. And I believe that is the "proper answer" and will not disavow it.

Even in Heller the most conservative members of the SCOTUS appear by my reckoning to affirm the Federal Government's power to regulate firearms with some limits.

-spence

Where in Heller is the Federal Government power to regulate firearms affirmed? Heller was not a suit against the Federal Government. It was against a D.C. gun ban. And even I would not dispute that the Federal Government has the power to regulate the interstate transport of guns, as well that of actual interstate commerce. But, again, and again, the distinction between "inter" and "intra" should not be muddied into the same instrument. But Heller was not about the interstate transport of guns. The majority decision was against a local gun ban, not a federal one. And the concession that there might be restrictions on certain types of "arms" (to be decided by future cases if they arise), is not taken out of state hands by Heller and delivered into Federal domain.

[scottw]

Originally Posted by spence

Legislative interp was meant to infer a lot of legislation has been interpreted and found Constitutional by the Judicial branch. Doubt it's a standard phrase...
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you made it up...

[scottw]

Originally Posted by detbuch

Where in Heller is the Federal Government power to regulate firearms affirmed?

it's not...it "appears by his reckoning"...one of those interp things that can cause so much trouble in the wrong hands

[spence]

Originally Posted by scottw

you made it up...

My expectation is that you can read a sentence and think critically.
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