interesting court case in MA

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Re: interesting court case in MA

Postby Grayskies on Fri Nov 28, 2014 7:32 pm


Interesting case, do you have 2nd Amendment rights if you are homeless?

In MN can get a p2p or p2c if you are homeless?
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Re: interesting court case in MA

Postby jdege on Fri Nov 28, 2014 8:10 pm

If you won't issue permits to carry handguns, can you still ban tasers and pepper spray?
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Re: interesting court case in MA

Postby jgalt on Fri Nov 28, 2014 8:33 pm

Stopped at the 5th sentence, which reads:

In an unusual twist, the court is also being asked to examine whether the Second Amendment right to defend yourself in your own home applies in the case of a homeless person.


Well of course, why didn't I see it before? I think all you folks that will rail against this are clearly ignoring the portion of the 2A text in parentheses. Let me help you out:

The 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms (but only homeowners, in their own homes, obviously... :roll: ), shall not be infringed.


And yes, I do believe both the italics and the eye-roll were in the original text.

:twisted:
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Re: interesting court case in MA

Postby Grayskies on Fri Nov 28, 2014 8:43 pm

There did seem to be distinctions drawn back then to those that owned land and those that did not.
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interesting court case in MA

Postby jshuberg on Fri Nov 28, 2014 8:59 pm

True, but that was for voting and such, because those were the people who paid taxes, and so were granted a voice on how their monies were spent.

Voting is a privilege of citizenship (a legal right). Keeping and bearing arms is a right (a fundamental right).

Legal rights are granted at the pleasure of the legislature, and can be denied to entire groups of people (non-citizens for example). Fundamental rights are recognized to always exist, and can only be stripped by a judge via due process on an individual basis.
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Re: interesting court case in MA

Postby Grayskies on Fri Nov 28, 2014 9:11 pm

So, since rtkaba is sooooo important, perhaps we should make guns and ammo free, or subsidize it for the poor?

Should states or feds be able to ban, limit or tax it?
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interesting court case in MA

Postby jshuberg on Fri Nov 28, 2014 11:38 pm

It's a right, not an entitlement, so no to government subsidies. Taxation of the exercise of a fundamental right? That's actually an interesting question. Churches don't have to pay income taxes, but members of the press do. My guess is that no judge would rule firearms are exempt from taxation because of the 2A. From a purely philosophical point of view I think you have a good point though.

States or Feds banning or limiting them, no, they should not be able to do that. The courts have all kinds of terms for figuring out the scope of things, strict scrutiny, intermediate scrutiny, etc. however, the 2nd Amendment is unique in the bill of rights that it provides for its own standard for review - it shall not be infringed. It is not subject to a balancing of concerns, it is not subject to any other legal standard. It shall not be infringed. Unfortunately, those in power decide they don't have to play by the rules...
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Re: interesting court case in MA

Postby jgalt on Sat Nov 29, 2014 12:39 am

Yeah, but when the BoR was written, it was understood to only apply to the Feds, not the states. It was only post Civil War that they slowly began to be applied to the States as well, and only recently was the 2A "incorporated"...

So for those of for whom the notion of "original intent" holds meaning (not saying it doesn't for you...), the statement

States or Feds banning or limiting them, no, they should not be able to do that.


is only half correct - the Feds have no authority to ban or limit the keeping or bearing of arms by individuals. For residents of states whose constitutions do not have equally explicit protections, their rights to keep & bear arms can in fact be limited - or more accurately, there is nothing stopping those state's legislatures from doing so...

None of that is to say that there is ever a requirement to do so even in those states, nor is that to say it is either wise or prudent to do so based on theories of natural rights. It means only and exactly what I stated - the Feds are commanded to not infringe, and some states are also prohibited from doing so. The rest ... well, I suggest residents in those states who value individual rights & liberty either find a way to get a voting majority & add those protections, or move to one of the many states where it already exists.
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Re: interesting court case in MA

Postby jshuberg on Sat Nov 29, 2014 3:47 am

Kind of.....

Heller found that the 2nd Amendment was an individual right, and that it was *always* an individual right, predating the constitution itself. The right didn't come into being when the bill of rights was ratified, it was merely recognized. At the time the bill of rights was ratified by the states, every one of the states already recognized the right. Back then, the Federal Government derived it's power from the states, and bill of rights itself was a demand made by the states as a condition of ratifying the constitution. To put it simply, the antifederalists were worried that the Federal Government might not recognize the rights of the people. When the 2nd Amendment was being drafted, it's original text was from taken from law already established in many of the states, although with slightly different wordings. There was no dissent from any state on the existence of the right, and the debates regarding the 2nd Amendment was primarily in finding the simplest, most distilled wording of the existing states forms. From a historical perspective, the original 13 states recognition of the right to keep and bear arms isn't in question, and predated the formation of the United States itself.

Prior to 1833 it *was* accepted that the bill of rights applied to the states, since it was the states after all ratified the bill of rights. It's purpose was in fact to ensure that the Federal Government recognize the same rights that the states did. However, in 1833 Barron v. Baltimore changed this. While it dealt specifically with the 5th Amendments takings clause, it was very wrapped up in pre-civil war politics. Southern states feared that the bill of rights could be used as a vehicle to force them to free their slaves and to give those former slaves all of the rights and protections it contained. Barron v. Baltimore found that the bill of rights applied only to the Federal Government, which effectively shut down abolitionists plans to use it as a means to free the slaves. Note that abolitionist states basically ignored this ruling (think state nullification, which was a technique used by many states concerning laws about slavery). It was primarily the southern states that championed this ruling as a way to avoid being forced to free the slaves.

Fast forward to 1868, during post-civil war reconstruction the 14th Amendment was passed. It contained a Due Process clause that was identical to the Due Process clause in the 5th Amendment, although it specifically applied to the states (while the 5th applied only the the Federal Government after the 1833 ruling). The Due Process clause of the 14th Amendment is the mechanism by which the bill of rights has been slowly re-applied to the states via incorporation. The McDonald ruling used this mechanism of incorporation to determine that in fact the 2nd Amendment did apply to the states. And much like the Heller ruling, the determination in McDonald was that the 2nd Amendment *was* incorporated to the states, as opposed to *is* incorporated to the states. Meaning it always had been, it was just that it had previously been unrecognized. So basically, the 2nd Amendment *did* apply to the states, at least as of 1868 when the 14th Amendment was ratified, it just wasn't recognized by the courts yet. This makes sense, as one of the purposes of the 14th Amendment was to "undo" the Barron v. Baltimore Supreme Court ruling.

So basically there were some states that recognized the right to keep and bear arms explicitly, separate from the 2nd Amendment. Then all states had the 2nd Amendment incorporated to it in 1868, although the court didn't recognize this until 2010. However, had the 1833 decision (that was wrapped up in pre-civil war politics) not occurred, the 14th Amendment would never have been necessary as it was accepted that the bill of rights *did* apply to the states prior to that ruling. Many legal scholars believe that this ruling was in error, because it was not only influenced by the pre-war politics of the time, but also because incorporation has effectively circumvented it's effect on most of the bill of rights. Most importantly it went against the understanding and tradition that the bill of rights was borne from the states, and so applied to the states.

So it's not quite as clear cut as some people try to make it sound. The original 13 states recognized certain rights, and then forced the Federal Government to also recognize them. It was generally understood that it went the other way too, that the states (including new states) must also recognize the rights in the bill of rights. Then a Supreme Court ruling reversed this. Then a war was fought. Then another Amendment was passed that circumvented the Supreme Court ruling. And then slowly the bill of rights has been legally re-applied to the states again using this mechanism. The bill of rights, and to which governments it applies was the victim of a chess game played on the board of the politics of slavery.

However, if you want to get back to the beginning, to the original intent, the purpose of the bill of rights and the 2nd Amendment was to force the federal government to recognize the rights that the states recognized as a means to prevent tyranny. Had the founding fathers anticipated the chess game that would drastically alter the recognition of our fundamental human rights, they would have most certainly made their intent more explicit. Had we never been a slave owning country, none of this mess would have happened, and the disposition of the 2nd Amendment and the entire bill of rights would be much better understood.

Damn slavery....

So anyways, my insomnia is over now, and I'm going to crash out now. Goodnight.
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Re: interesting court case in MA

Postby LarryFlew on Sat Nov 29, 2014 8:42 am

WELL WRITTEN - THANKS
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Re: interesting court case in MA

Postby Rip Van Winkle on Sat Nov 29, 2014 9:24 am

Interesting discussion. While I would tend to side with the opinion that one cannot be forced to pay for another's right, providing for the common defense is not without precedent. One could make the argument that government should provide arms and ammunition to the population for national defense.

If I were king, we would have a system similar to the Swiss, where every adult male would be required to store the country's service rifle in their home and qualify with it every year, similar to the Swiss Schutzenfest.
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