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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThe Second Amendment Has Nothing to Do with Gun Ownership
Retired Chief Justice Warren Burger, "The Right to Bear Arms," Parade Magazine, January 14, 1990.
In 2008, this fraud was furthered by Mr. Scalia, joined by his fellow ideologues Thomas, Alito, Roberts and Kennedy. Yet five zealots in black robes cannot change the historical record. Writing something down on paper or pushing the send button to the internet doesn't make it so. Scalia and gang, in ganging together to pen District of Columbia v. Heller, cannot change history, anymore than a Truther diary about how the 9-11 hijackers were Republican ideologues giving their lives for Bush and Cheney, makes such idiocy so.
In its 2002 decision Silveira v. Lockyer, the Ninth Circuit Court of Appeals provided a very detailed, extensive, and well researched examination of the historical record surrounding the adoption of the Second Amendment. Although Silveira v. Lockyer would overturned by Messrs. Scalia, Thomas, Roberts, Alito and Kennedy in 2008, the 9th Circuit's outstanding research surpasses both Scalia's NRA talking points that passes for a Supreme Court decision, as well as Justice Stevens' far more persuasive dissent. This diary provides a summary of the Ninth Circuit's research that led to that court's conclusion that the Second Amendment was intended to protect the right of the states to form militias, and was not intended to allow anyone and everyone without restriction to buy whatever guns may be on the market. I hope, in a future diary, to analyze Scalia's Heller opinion and illustrate why Scalia is wrong and a hypocrite to claim that he is governed by original intent.
The Second Amendment states:
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.
"he original intent of the Second Amendment was to protect the right of the states to form and maintain state militias"
http://www.dailykos.com/story/2012/12/25/1171716/-The-Second-Amendment-Has-Nothing-to-Do-with-Gun-Ownership#
State Militias = National Guard!
Well regulated could be restrictions on certain types of weapons.
MadHound
(34,179 posts)You are ignoring a whole raft of other court decisions that further define that the individual has the right to bear arms, both in a militia and in their own private home.
I'm very much a pro gun control person, I want to get rid of things like assault weapons, high capacity clips, the gun show loophole and other common sense, practical measures. It is people like you with your idiotic legal posturing that makes it so difficult to get such practical legislation through. You are not a Constitutional scholar, you don't play one on TV, and you don't know what the hell you're talking about.
I suggest you rectify that problem and educate yourself.
Have a nice day.
liberal N proud
(60,335 posts)How then did the well regulated militia become the "right to bear arms"?
MadHound
(34,179 posts)You quoted it above, ". . .the right of the people to keep and bear Arms, shall not be infringed."
Look, I'm not going to argue with you about this, because you're going to think I'm some sort of gun nut not worth listening to. Again, I suggest that you do your own research, and I mean real research into the various 2nd Amendment cases that have been brought to the court. You can find most of them online. Start with those cases, not the words of some retired judge as published in Parade Magazine, OK.
CTyankee
(63,912 posts)States. So I think his qualifications are a wee tad more solidly based in constitutional law than yours...I know that is something you do not want to hear but, unfortunately, 'tis true...
MadHound
(34,179 posts)Like I said earlier, do your own research, use primary sources, then get back to me.
CTyankee
(63,912 posts)your own judgment. I will certainly look at any of your scholarly work in regards to Chief Justice Burger. For all I know, you could have written his bio or studied his papers, or maybe you clerked for him.
Sure sounds like you know lots and lots about him and of course have published it in scholarly journals, all properly footnoted and accurately sourced.
I await your documentation. Please feel free to send it to me via pm.
X_Digger
(18,585 posts).. and that putting someone in jail for life without parole for kiting a $100 check was just peachy.
Do you *really* want to hold him up as an example of a good judge?
Really?
CTyankee
(63,912 posts)are we? We are simply discussing his views with which I do agree.
X_Digger
(18,585 posts)Talk about a failed appeal to authority.
derby378
(30,252 posts)When the Supreme Court approves Obamacare's individual mandate as a tax, they are hailed as non-partisan heroes. When they issue a ruling that strengthens the Second Amendment, they are castigated as Bush-era cronies.
Just because Berger opens his mouth doesn't mean that what he says is the gospel truth.
CTyankee
(63,912 posts)CTyankee
(63,912 posts)It is as simple as that. I wish I didn't have to explain these things to you because it gets so boring.
X_Digger
(18,585 posts)CTyankee
(63,912 posts)I'm sorry, I didn't know that I was in the company of such a titan of jurisprudence.
X_Digger
(18,585 posts)But feel free to sing his praises- just be prepared to defend the rest of his positions, too.
CTyankee
(63,912 posts)frylock
(34,825 posts)most higher forms of intelligence realize there are shades of grey, and not everything is black/white.
AnotherMcIntosh
(11,064 posts)They weren't.
The Parade Magazine article was published on the web here:
http://www.guncite.com/burger.html
samsingh
(17,599 posts)bravo.
Lizzie Poppet
(10,164 posts)What I am, however, is very well versed indeed in linguistic analysis. From that standpoint, Burger's claims are unsupportable, in the main. His statement about the language of the amendment ("The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires." is true only in its qualifier. It does indeed only refer to "arms," which would have meant what we'd call "small arms" in the usage of the day. The language does not, however, restrict the RKBA to members of the militia, as the Heller decision correctly ruled. That would require different language.
AnotherMcIntosh
(11,064 posts)Berger did not use those words.
The Parade Magazine article which is purportedly the source for the language was published on the web here:
http://www.guncite.com/burger.html
That article does not contain the language which is being attributed to Burger
"The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."
Lizzie Poppet
(10,164 posts)I certainly don't see that excerpt in the article.
AnotherMcIntosh
(11,064 posts)Logically, if Burger had said in 1990 what some are now claiming that he said, wouldn't they or others have pulled it out long before now?
The person at Dailykos and even those who have created the OPs should know that statements attributed to Burger is a fiction.
The sooner people quit suggesting ludicrous, obvious lies and constitutional impossibilities, the sooner something substantive might occur.
AnotherMcIntosh
(11,064 posts)He's only relying upon a secondary interpretation by Dailykos.
Dailykos says that Burger said those words, but check out Parade Magazine for Jan 14, 1990
http://www.guncite.com/burger.html
In contrast to what is being attributed to Burger by Dailykos, Burger actually said, among other things,
During all the gun debates since 1990, if Burger had actually said what is being attributed to him, wouldn't others (other than Dailykos) have pointed that out by now?
What I find, repeatedly, is shallow thinking and dishonesty by those who want to further restrict the private ownership of firearms. An act of falsely attributing an anti-gun quote to Burger by Dailykos or by anyone else is as dishonest as calling firearm owners "gun nuts."
jody
(26,624 posts)hack89
(39,171 posts)he is a constitutional scholar.
Puzzledtraveller
(5,937 posts)but I do like the option of being able to acquire one should I feel the need to. How easily we forget this choice and how lucky we are to have it.
pipoman
(16,038 posts)this less than historical view point, who will answer the very simple question...
If the second amendment says, "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." but actually means, "A well regulated Militia being necessary to the security of a free State, the right of the militia to keep and bear Arms, shall not be infringed.", why isn't that what it says? Why this obvious ambiguity?
Further to state that those who formed this nation and government wished all arms be held by the state (national guard) are completely ignorant of the intent of reasons for revolution in the first place.
No, the true meaning of the second amendment is quite clear, it is wishful thinkers who don't have the votes to amend the constitution who proclaim falsities to something so unambiguous as the second amendment.
AnotherMcIntosh
(11,064 posts)to review for determining whether Dailykos accurately repeated former Justice Burger's words.
http://www.guncite.com/burger.html
Did Dailykos do that?
byeya
(2,842 posts)perverted view of the 2nd amendement is only a few years old and we hope another court will revert to the centuries old interpretation.
Obama, the "constitutional scholar", targets people for murder, including Americans, and has no sense of the right to privacy.
Anyone who bases a stance based on how Obama runs his administration is leaning against a weak reed.
hack89
(39,171 posts)the notion that every American should have the exact same civil rights is nonsense.
ywcachieve
(365 posts)Last edited Fri Dec 28, 2012, 12:07 PM - Edit history (1)
LOL... I have to remember to go over my posts to make sure there are no typos.
AnotherMcIntosh
(11,064 posts)from Dailykos
Dailykos purportedly relied upon a Parade Magazine article.
The Parade Magazine article was published on the web here:
http://www.guncite.com/burger.html
Where did Burger say within it, as represented by Dailykos and the OP,
Hoyt
(54,770 posts)Maybe in a few years we will have one less right wing Justice so that the dissenting view in Heller prevails.
H2O Man
(73,559 posts)I am definitely in favor of "gun control." However, this is balanced with an appreciation for Amendment 2 -- which by necessity requires a knowledge of both "how" and "why" it came into being; considerations of minimalist options considered within its first decade; and the very different challenges it faced in the federal courts in the 19th and 20th century. The well-documented fact is that the "militia" concept, while it had a very important and influential role, in no way reduces or eliminates the individual right to gun ownership. Yet, this right is not unlimited: the states and federal government have the right to balance the individual right with that of the larger community/society.
buzzroller
(67 posts)here:
http://caselaw.findlaw.com/us-9th-circuit/1464183.html
,which I know has now been superseded by the U.S. Supreme Court in "Heller" ,
still contains a good discussion of the arguments of the interpretation of the second amendment. Regardless of what Burger said, I still think it is the correct.
slackmaster
(60,567 posts)derby378
(30,252 posts)yodermon
(6,143 posts)...Yet both the general public, which has a disposition to believe that the Second Amendment protects gun ownership, and the NRA lobby are bolstered in that view by the sheer mass of the articles now being ground out and published in journals. It is difficult to sort out all the extraneous, irrelevant, and partial material daily thrown into the debate. Even to make a beginning is difficult. One must separate what the Second Amendment says from a whole list of other matters not immediately at issue. Some argue, for instance, that there is a natural right to own guns (Blackstone is often quoted here) antecedent to the right protected by the amendment, or that such a right may be protected in other places (common law, state constitutions, statute, custom, etc.). All that could be true without affecting the original scope of the Second Amendment. One could argue for instance, that owners of property have a right to charge rental on itbut that is not the point at issue in the Third Amendment (against quartering federal troops on private property).
In order to make any progress at all, we must restrict ourselves to what, precisely, is covered by the Second Amendment. That is not hard to determine, once the irrelevant debris adrift around its every term has been cleared away. Each term exists in a discernible historic context, as does the sentence structure of the amendment.
That amendment, as Madison first moved it, read:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.8
The whole sentence looks to military matters, the second clause giving the reason for the rights existence, and the third giving an exception to that right. The connection of the parts can be made obvious by using the same structure to describe other rights. One could say, for instance: The right of free speech shall not be infringed; an open exchange of views giving the best security to intellectual liberty; but no person shall be free to commit libel. Every part is explained in relation to every other part. The third clause makes certain what Madison means in this place by bear arms. He is not saying that Quakers, who oppose war, will not be allowed to use guns for hunting or sport.
Did the changes made to Madisons proposed amendment remove it from its original (solely military) context? Only two substitutions were made in the wordingcountry became state and the best security of became necessary to. This latter change might demote the right to bear arms by comparison with other rights (perhaps, say, free speech is the very best security of freedom), but it does not alter the thing being discussed.9 Beyond that, nothing was added to the text, so it could not be altered by addition. Was it altered by deletion? Well armed and was dropped, in drafting sessions that generally compressed the language, but well regulated includes well armed (see below, Number 3). Then the whole third clause was omittedbut for a reason that still dealt with the military consequences of the sentence.
...
much much more at link.
jmg257
(11,996 posts)I read Madison's proposal as just the opposite (especially when compared to the actual 2nd) - Madison's version specifically separates the secured right from a primary purpose - by a semi-colon. Compare that to the version below of his proposal (note the colon) from
http://www.constitution.org/bor/amd_jmad.txt.
Pretty obvious there are 2 different, but slightly related, notions, related because the new Congress would now have the power to come up with guidelines for arming "the Militias", which were interchangable with "the people". Hence the people's right existed, and now needed to be secured.
"The right of the people to keep and bear arms shall not be infringed; a well
armed and well regulated militia being the best security of a free country:
but no person religiously scrupulous of bearing arms shall be compelled to
render military service in person."
Other differences - "Necessary to.." makes the Militias (constitutional Militias) a requirment, mandatory by law. No other reason but to state just how important they were for securing our freedom.
jmg257
(11,996 posts)Here's a clue: State <> National
Now if you want to say We the people allowed the federal government to recreate and nationalize the Militias of the several States (by making them part of the federal standing army and controlling their arms) DESPITE the original intent of the 2nd, then just say so.
Well-regulated COULD be restrictions on certain arms, as long as those restrictions allow the people arms for militia duty that are uniform and most effective in a military role. After all, THAT is also part of the original intent.
Apparently the restrictions in the 2nd aren't all that powerful, especially when in conflict with the opinion of the public.
eallen
(2,953 posts)Aristus
(66,386 posts)In fact, I think they are required to. They can "keep" them in their homes, and "bear" them, (presumably in combat, if anyone ever invaded Switzerland), but they do not own them.
Quite a bit different from the American interpretation of "keep and bear", which, evidently means: own an arsenal that would make a Somalian warlord blanch, and blast the living shit out of anybody who looks at you crossways...
God bless America...
jody
(26,624 posts)Your OP makes as much sense as "A well regulated militia, being necessary to the security of a free state, the right of the people to procreate, shall not be infringed" would restrict that activity to the militia.
SCOTUS used a similar analogy in Heller.
bongbong
(5,436 posts)And why the Delicate Flowers (gun nutz too scared to appear in public without a gun) are complete idiots.
http://www.saf.org/LawReviews/SpitzerChicago.htm
jody
(26,624 posts)briefs submitted.
I don't know if you would understand them but other more objective readers might learn from them at http://www.scotusblog.com/case-files/cases/dc-v-heller/
bongbong
(5,436 posts)> I don't know if you would understand them
Whenever a Delicate Flower impugns my intelligence, I almost fall over from laughing so much. Imagine Flowers who are too scared to face life without a gun thinking they can comment on my brainpower.
jody
(26,624 posts)recommended and demonstrate your understanding by citing it in your future posts.
One credible cite in lieu of an insult would do wonders to demonstrate your understanding of the RKBA topic.
Regardless of your opinion, the decisions in DC v Heller and later McDonald v Chicago are the law of the land.
Forty-four states have constitutional guarantees on the right to keep and bear arms.
Given that 37 states would have to approve an amendment disavowing the right enumerated in the Second Amendment seems most unlikely.
Even if the Second were removed, RKBA would still be protected as an unenumerated right under the Ninth Amendment.
It seems unlikely that even the most liberal justices would try to misrepresent history and deny that RKBA preexisted our Constitution and do not depend on it.
If they did, they would come face to face with statements by liberal justices in many cases acknowledging PA(1776) and VT(1777) constitutions that recognized RKBA is a "natural, inherent, inalienable/unalienable" right.
> recommended and demonstrate your understanding by citing it in your future posts.
Oh, so now you're assigning reading to me, and want a book report too?
You Delicate Flowers can't be that unintentionally hilarious, can you? You're KILLING me!!!
I get so many laughs from Delicate Flower posts that I locked out Comedy Central on my cable box. Don't need it anymore.
jody
(26,624 posts)you if you don't show a little more creative incivility.
rl6214
(8,142 posts)Delicate flower
What a joke
bongbong
(5,436 posts)> "More insults" as you call anyone that disagrees with you a Delicate flower
How is that an insult? I'm just using the same language Tom Tomorrow used in a super-careful attempt not to offend gun nuts in his comic about how the NRA gives orders so convincingly to legislators. TT picked language that he wanted to make sure wouldn't offend the super-sensitive psyches of the gun religionists.
Delicate Flowers are really an interesting crew. They are super tough with their guns and the idea of mowing down "evil-doers" in a hail of bullets, but somehow they're super-sensitive about words.
What amazing creatures.
rl6214
(8,142 posts)To figure out what you really mean. Even you anti gun zealots can see that.
crazyjoe
(1,191 posts)They cannot keep weapons on the shelves, thanks to people like you, and posts like this.
Your doing more to get people to buy semi-auto hand guns then the NRA.
Good job knuckleheads.
Keep it up, Smith-Wesson is having a stellar year thanks to you. In fact, I think you convinced me, I'm going out today and purchase a 380 auto, before they are banned !!
NRA Talking Point # 5,773
crazyjoe
(1,191 posts)The NRA Talking Point that "threatening to ban guns will cause more sales" is not just another Talking Point. It is reflected in reality since the repigs sell fear, especially fear of a black man running things.
It's an NRA Talking Point because it is designed to stop gun control since it seems like a useless goal. But once gun control laws start being written, then gun sales will go down, or at least will be regulated, unless the "law-abiding" Delicate Flowers decide they're too delicate to follow the law.
crazyjoe
(1,191 posts)bongbong
(5,436 posts)Gun-nuts bristle at any terminology that identifies them, other than phrases such as "Rambo-like Super Hero", or "Super Patriotic Constitution Defender". But these are too long to type if you have to discuss gun control with them. They certainly don't like "gun-nut" or "gun-religionist".
So Tom Tomorrow came up with "Delicate Flower", to be ultra-sensitive to their super-sensitive psyches. It seemed as if you didn't call them "Rambo-like Super Hero", or "Super Patriotic Constitution Defender", their poor widdle selves would get offended.
crazyjoe
(1,191 posts)sounds more like a term that bratty child would use to try to irritate
someone on the playground. Name calling....whatever. It's people like you that are killing this place.
> It's people like you that are killing this place.
No, it's fear-filled Delicate Flowers trying to make guns more acceptable among Liberals & other civilized people.
Igel
(35,317 posts)1st Amendment and all that.
At the time, there were state religions. My state was Catholic at the time.
If the Bill of Rights doesn't just acknowledge rights but instead creates them, then there is no "natural right" to freedom of religion. And instead of the Establishment clause's simply not interfering with states' rights to interfere with freedom of religion, it has to be read as *protecting* and even affirming the right to interfere with freedom of religion. (Barring later incorporation doctrine.)
Let's also overlook the incoherence of claiming on the one hand that the Constitution gives the Federal government all the authority to be the only controller and organizer of a militia ("National Guard," as though that really was a unitary federal organization under executive oversight) *and* vouchsafes states' rights to be the only organizer and controller of militias. Granted, different people making different arguments isn't unheard of, but if we assume one side is monolithic and therefore incoherence why not assume *both* sides are monolithic (and, well, incoherent).
jody
(26,624 posts)aikoaiko
(34,170 posts)Or even Preaident Obama.
Burger's opinion was just another example of a conservative denying a civil liberty to the people. There are a lot of conservatives who don't like the people to have civil liberties - some liberals too.
bongbong
(5,436 posts)> There are a lot of conservatives who don't like the people to have civil liberties - some liberals too.
Yeah, I hate those liberals who want to deprive me of my civil liberty to grow anthrax spores.
aikoaiko
(34,170 posts)Keep trying.
Labeling the ability to purchase a super-deadly weapon a "civil liberty" is just like calling growing anthrax a "civil liberty".
Hope you understand. I typed that sentence slowly.
jody
(26,624 posts)none the dissent.
Even worst, none of them have read the many amicus briefs submitted, e.g. [link:http://www.gurapossessky.com/news/parker/documents/07-290tsacProfessorsOfLinguistics.pdf|Brief for Professors of Linguistics and English Dennis E. Baron, Ph. D, Richard W. Bailey, Ph. D, and Jeffrey P. Kaplan in Support of Petitioner.
]
Ignorance is a useless foundation from which to propose laws to prevent another Sandy Hook Tragedy.
AnotherMcIntosh
(11,064 posts)The alleged source is a Parade Magazine article.
It is published on the web here:
http://www.guncite.com/burger.html
Where, if any place, does it contain the language? It doesn't.
TRJuan
(27 posts)Repeal it, and ban anything that holds more than one bullet. No one needs to own anything so deadly. Fuck what the geezers over 200 years ago who thought arming society was a good idea.