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Bang / Guns
See other Bang / Guns Articles

Title: A Revision on the Bill of Rights, Part III
Source: Huffpost Politics
URL Source: [None]
Published: May 4, 2016
Author: Justin Curmi
Post Date: 2016-05-04 21:51:54 by tpaine
Keywords: None
Views: 3766
Comments: 22

A Revision on the Bill of Rights, Part III

04/26/2016 01:07 pm ET 2.5 K

Justin Curmi

A blogger that seeks to engage people in thought and conversation through presenting new views to matters, new or old.

“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.”

The Second Amendment is highly contested. There is no doubt that people do have the right to carry and have a stockpile of guns (“the right of the people to keep and bear arms”) and a state has the right to organize a well-regulated Militia. But, the main issue is on the right to self-defend with a firearm.

The main problem with the notion of self-defense is it imposes on justice, for everyone has the right for a fair trial. Therefore, using a firearm to defend oneself is not legal because if the attacker is killed, he or she is devoid of his or her rights. In addition, one’s mental capacity is a major factor in deciding whether a man or woman has the right to have a firearm. There are two reasons for ensuring mental capacity. First, one of the Five Aims is to ensure domestic tranquility and there can be no tranquility if one does not have the capacity. Second, if one’s brain is distorting his or her reality, they do not have the proper reasoning and deduction skills to use a firearm.

Therefore, if we ponder and meditate on the recent events in news about guns, it would be obvious that the current state is incorrect. A gun for civilians is a weapon for a revolution and not for ordinary use. The belief that a gun is a useful tool to protect one is counterintuitive because guns get into the hands of people who use them for horrible reasons. In addition, there are reasons why cops are trained to use a firearm in stressful situations. It is not to keep their mind at ease or anything of that sort, but to be able to fire accurately at the target in the correct location. It is immensely difficult to fire when under pressure. Moreover, one may argue this is an analogous argument and yes it is because the United States government is lobbied to not study or fund research that observes the effects of guns. This cripples the chance of evaluating a proper policy to deal with gun violence. But, there was one study by ABC, which observed using guns in a classroom. All the participations poorly performed at the mock situation.

Once again, if there is an argument in the reasoning of this amendment and others, one must filter it through the Five Aims of the USA and the Bill of Rights. This is to ensure that any argument can be answered, avoiding a political divide.


Poster Comment:

What in hell is the "Five Aims of the USA"?

Post Comment   Private Reply   Ignore Thread  


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Begin Trace Mode for Comment # 17.

#5. To: tpaine (#0)

A gun for civilians is a weapon for a revolution and not for ordinary use. The belief that a gun is a useful tool to protect one is counterintuitive because guns get into the hands of people who use them for horrible reasons.

A gun for civilians is a protected right for self-defence.

The second amendment establishes no right, it forbids the Federal government from infringing upon a pre-existing right.

The pre-existing right was established in English common law long before the creation of the Constitution.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Gun do get into the hands of people who use them for horrible reasons. So do knives, yet we are not required to forego knives.

nolu chan  posted on  2016-05-04   23:52:53 ET  Reply   Untrace   Trace   Private Reply  


#8. To: nolu chan (#5)

"A gun for civilians is a protected right for self-defence."

When written, not by the second amendment. As evidenced in Miller, the only weapons protected by the second amendment were those "suitable for use" by a state Militia.

State constitutions protected the individual right of civilians to keep and bear arms. States have always (until Heller) defined who may own weapons, what kind of weapons, and how they may be used. Which is why the gun laws in each state were different.

misterwhite  posted on  2016-05-05   10:01:47 ET  Reply   Untrace   Trace   Private Reply  


#17. To: misterwhite (#8)

When written, not by the second amendment. As evidenced in Miller, the only weapons protected by the second amendment were those "suitable for use" by a state Militia.

State constitutions protected the individual right of civilians to keep and bear arms. States have always (until Heller) defined who may own weapons, what kind of weapons, and how they may be used. Which is why the gun laws in each state were different.

Nonsense. The Second Amendment created no right to keep and bear arms. It protected a pre-existing right existing in the people by explicitly withholding from the Federal government, any power or authority to infringe upon that pre-existing right.

Your interpretation of Miller (1939) is nonsense, directly refuted by the holding in Heller in 2008.

http://laws.findlaw.com/us/000/07-290.html

DISTRICT OF COLUMBIA et al. v. HELLER

certiorari to the united states court of appeals for the district of columbia circuit

No. 07-290. Argued March 18, 2008--Decided June 26, 2008

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition--in the place where the importance of the lawful defense of self, family, and property is most acute--would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64.

478 F. 3d 370, affirmed.

nolu chan  posted on  2016-05-05   23:40:21 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 17.

#18. To: nolu chan (#17) (Edited)

"The Second Amendment created no right to keep and bear arms."

Correct. I never said it did.

"It protected a pre-existing right existing in the people ..."

It protected the pre-existing right for some people, not everyone.

"Your interpretation of Miller (1939) is nonsense, directly refuted by the holding in Heller in 2008."

My interpretation of Miller is 100% correct as evidenced by what the court actually ruled. Heller ignored Miller and was a horrible decision.

"United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."

Which the Heller court totally ignored. The Miller decision states that the ONLY weapons protected are those used by the military. The court's only question was if the sawed-off shotgun qualified as military arms.

misterwhite  posted on  2016-05-06 09:12:32 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 17.

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