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apogee
climber
Technically expert, safe belayer, can lead if easy
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Craig.
Stop it.
Please.
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JEleazarian
Trad climber
Fresno CA
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In any event, I agree with the following comment by JE:
If you want to change the contract, you amend the Constitution. You don't need to do so by judicial fiat, unless you want to eviscerate a protection of the political minority to which the country agreed in adopting and amending the Constitution.
And that is why I think Heller was a horrible decision. The "militia" language was previously understood to modify the limit to bear arms by individuals--and this was changed by activist court fiat, rather than going back and amending the Constitution.
That's an interesting position to take, Curt, given Kopel's analysis in 1999 that the (then) 35 SCOTUS rulings on the Second Amendment viewed the right to keep and bear arms as an individual right, rather than that of a state or of a government generally. http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm
It's also clear from the Federalist Papers that Madison (in No. 46) and Hamilton (in No. 29) saw the Second Amendment as a defense against a standing army being used to limit the people's liberty.
But then, it goes back to words meaning what we want them to mean.
Alan,
I agree that the militia in Massachusetts and, to my knowledge, the Colonies in general, were organizations, not merely individuals. At least in New England, the colonies generally chartered them, but they still did not provide them weapons, so I'm not as sure as you are that individuals owned only small arms.
And don't worry about time delays. I've worked out a schedule that leaves Fridays and weekends free. As amazed as I am to be able to debate with you, climbing still has a greater call.
John
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JEleazarian
Trad climber
Fresno CA
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Apogee,
Craig at least speaks sensibly at times. Even his responses to Cosmic serve a purpose. They give you a taste of how we Republicans feel whenever Trump opens his mouth. (Well except for his proposed list of consideration for SCOTUS positions).
John
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apogee
climber
Technically expert, safe belayer, can lead if easy
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John.
Stop it.
Please.
(Let that thing die.)
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JEleazarian
Trad climber
Fresno CA
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^^^^^
You don't want to feel my pain?
John
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EdwardT
Trad climber
Retired
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Craig.
Stop it.
Please.
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apogee
climber
Technically expert, safe belayer, can lead if easy
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If Prop 64 passes, there will be better ways for you soothe your pain.
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JEleazarian
Trad climber
Fresno CA
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I already have that figured out, ap, as you noticed in the other thread.
John
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Curt
climber
Gold Canyon, AZ
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That's an interesting position to take, Curt, given Kopel's analysis in 1999 that the (then) 35 SCOTUS rulings on the Second Amendment viewed the right to keep and bear arms as an individual right, rather than that of a state or of a government generally.
That certainly disagrees with what is found at the Library of Congress website.
"Prior to District of Columbia v. Heller, the last time the Supreme Court interpreted the Second Amendment was in United States v. Miller, 307 U.S. 174 (1939). In that case, Jack Miller and one other person were indicted for transporting an unregistered sawed-off shotgun across state lines in violation of the National Firearms Act of 1934. Miller argued, among other things, that the section of the National Firearms Act regulating the interstate transport of certain firearms violated the Second Amendment. The U.S. District Court for the Western District of Arkansas agreed with Miller. The case was appealed directly to the Supreme Court, which reversed the district court..."
Most lawyers I know admit that Scalia, in Heller, completely changed the meaning of the 2nd Amendment.
https://www.loc.gov/law/help/second-amendment.php
Curt
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EdwardT
Trad climber
Retired
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Scalia, in Heller, completely changed the meaning of the 2nd Amendment.
It's only a negative when you dislike the new interpretation.
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Curt
climber
Gold Canyon, AZ
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It's only a negative when you dislike the new interpretation.
It's negative when activist judges legislate from the bench. If the Constitution needs amending, amend it--don't just change accepted, long standing interpretation.
Curt
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JEleazarian
Trad climber
Fresno CA
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Curt, I think you need the meet a broader spectrum of lawyers.
;-)
It's less than clear that your reference contradicts Kopel's statement:
"Chief Justice Melville Fuller's Supreme Court (1888-1910) had the most cases involving the Second Amendment: eight. So far, the Rehnquist Court is in second place, with six. But Supreme Court opinions dealing with the Second Amendment come from almost every period in the Court's history, and almost all of them assume or are consistent with the proposition that the Second Amendment in an individual right."
Heller held that the right to keep and bear arms under the Second Amendment is an individual right. Kopel's law review article, written almost ten years before Heller, says that previous decisions were consistent with that holding. So what, exactly, did the allegedly activist court in Heller so drastically change?
John
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Dingus McGee
Social climber
Where Safety trumps Leaving No Trace
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A list of 30 former Republicans Congressmen who have come out against Trump:
Here's a list of signatories:
Steve Bartlett (R-TX)
Bob Bauman (R-MD)
Sherwood Boehlert (R-NY)
Jack Buechner (R-MO)
Tom Campbell (R-CA)
Bill Clinger (R-PA)
Tom Coleman (R-MO)
Geoff Davis (R-KY)
Mickey Edwards (R-OK)
Harris Fawell (R-IL)
Ed Foreman (R-TX) (R-NM)
Amo Houghton, Jr. (R-NY)
Gordon Humphrey (Senator, R-NH)
Bob Inglis (R-SC)
Jim Kolbe (R-AZ)
Steve Kuykendall (R-CA)
Jim Leach (R-IA)
Pete McCloskey (R-CA)
Connie Morella (R-MD)
Mike Parker (R-MS)
Tom Petri (R-WI)
John Porter (R-IL)
Claudine Schneider (R-RI)
John "Joe" Schwarz (R-MI)
Chris Shays (R-CT)
Peter Smith (R-VT)
Edward Weber (R-OH)
Vin Weber (R-MN)
G. William Whitehurst (R-VA)
Dick Zimmer (R-NJ)
see
http://www.nbcnews.com/politics/2016-election/thirty-former-gop-congressmen-come-out-against-trump-n660906
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Curt
climber
Gold Canyon, AZ
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Curt, I think you need the meet a broader spectrum of lawyers.
Like Michael Waldman?
"In 1991, former Chief Justice Warren Burger said that the idea that the Second Amendment recognizes an individual right to gun ownership was "a fraud" on the public. That was the consensus, that was the conventional wisdom."
and
"The thing about the Heller decision that was especially concerning to me was that Justice Scalia said this was the "vindication" of his approach of originalism. But when it actually came time to doing the history, he skipped over the actual writing and purpose of the Second Amendment. Out of 64 pages [in the decision], only 2 deal with the militias. Which is what the founders thought they were talking about."
http://www.motherjones.com/politics/2014/06/second-amendment-guns-michael-waldman
Curt
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JEleazarian
Trad climber
Fresno CA
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Well, certainly broader than Mother Jones.
John
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Curt
climber
Gold Canyon, AZ
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Well, certainly broader than Mother Jones.
Waldman's analysis stands on its own. He was merely interviewed in Mother Jones--don't shoot the messenger with your 2nd Amendment musket :-)
Curt
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WBraun
climber
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The Putinator is gonna hack your stoopid Diebold voting machines so that the Trumpinator will win and then the Hillary loons will all leave America.
Ho mannnn .....
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Escopeta
Trad climber
Idaho
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And that's bad because???
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JEleazarian
Trad climber
Fresno CA
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Good point, Escopeta, and touche, Curt.
John
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blahblah
Gym climber
Boulder
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Curt,
Heller did not overrule any Supreme Court precedent, either explicitly or implicitly. The Court in Heller discusses Miller and incorporates it into its decision. It's all in the decision if you'd care to read it.
Burger's "fraud" statement is interesting I suppose, but it's neither the law nor legal reasoning (or any type of reasoning for that matter). When a Supreme Court Justice is expressing an opinion (as contrasted to deciding a case)--that's all he's doing, and Burger's opinion is pretty much just like anyone else's.
What seems to me to be more of a fraud is the view that proper interpretation of the 2nd Amendment is solely that the government has the right have weapons--I'm not saying that's necessarily your view (I don't know), but when I hear people say that's what they think the 2nd Amendment "means," I'm at a bit of a loss for words (a rare condition for a lawyer).
One thing we probably do agree upon is the that the 2nd Amendment is terribly written from a modern perspective at least, and so I suppose we can't get too bent out of shape when people claim it "means" something other than what we'd like.
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