setback for 2nd amendment...

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setback for 2nd amendment...

#1

Post by Scott » Thu Jun 09, 2016 1:50 pm

Why elections matter and judges are more powerful than law makers. Even something as simple as 'bear arms' gets turned over by court. This one will make it to the supreme court. Hope they can read as well as a 5th grader. If I have to justify exercising my right, I am being infringed...

****************************************************************

Court: No right to carry concealed weapons in public
Published June 09, 2016 Associated Press

SAN FRANCISCO – A federal appeals court says people do not have a right to carry concealed weapons in public under the 2nd Amendment.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals issued the ruling Thursday.

The panel says law enforcement officials can require applicants for a concealed weapons permit to show they are in immediate danger or otherwise have a good reason for a permit beyond self-defense.

The decision overturned a 2014 ruling by a smaller 9th Circuit panel.

************************************************************************************


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Re: setback for 2nd amendment...

#2

Post by GregD » Thu Jun 09, 2016 3:02 pm

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.
What exactly this means is not so clear and in fact has been debated for a long time.

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Re: setback for 2nd amendment...

#3

Post by Scott » Thu Jun 09, 2016 3:46 pm

If the gun control crowd was honest in their reading and they were really just trying to understand the intent, I would be more understanding of their position. My experience has shown that they intentionally try to twist it, or ignore it all together, to get to the end they want, with no interest in honestly evaluating what it says.

I read it as - I (people) have a RIGHT to have (keep) guns (arms), and carry (bear) them. The fact that the reason I have this right is to keep a militia is not relevant to the express right it gives me. Until it is formally repealed, I have those rights.
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Re: setback for 2nd amendment...

#4

Post by gmcpcs » Thu Jun 09, 2016 3:52 pm

The 9th circuit is the most liberal of the circuit courts of appeals. The 5th circuit is the one we watch here in Texas. However, I agree with the OP, we will have to watch this next Supreme Court Appointment, but it is also all the other court appointments that have bearing. My opinion we have skewed the original separation of powers by allowing courts to make decisions at the lower level on constitutional matters, and that was never the intention of the Supreme Court either. The constitution means what it says, not what the courts are saying it says...

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Re: setback for 2nd amendment...

#5

Post by Scott » Thu Jun 09, 2016 4:10 pm

it would be similar to saying that to run a newspaper article, the reporter has to justify the story.

Or a why your house should be exempt from unwarranted searches. Prove why YOU specifically need the right before you can exercise it.
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Re: setback for 2nd amendment...

#6

Post by sarge » Thu Jun 09, 2016 5:46 pm

GregD wrote:
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.
What exactly this means is not so clear and in fact has been debated for a long time.
It has only been debated by those ignorant of the meaning and history and trying to contextualized the document's words to mean what they do today, rather than what they meant at the time.

As a for instance, I will tell you that when soldiers serving in France during WW1 sent letters home to Mom saying that they had just come back from having a gay time in Paris, they weren't making any kind of confession as to their sexual preference.

At the time of the writing of the Second Amendment, a "Militia" was considered all able bodied men able to carry and fire a weapon in defense of his home or his State.

Militias formed by the States were not codified into law until 1792,and as Obama supporters everywhere informed us, those laws were the first time the government required citizens to purchase a product---a gun.
The second Act, passed May 8, 1792 (one year AFTER the Bill of Rights was written), provided for the organization of the state militias. It conscripted every "free able-bodied white male citizen" between the ages of 18 and 45 into a local militia company. (This was later expanded to all males, regardless of race, between the ages 18-54)
But these Acts merely codified the relationship between the Federal Government and the State militias and did not regulate private or what became known as "Volunteer Militias".
Militia members, referred to as "every citizen, so enrolled and notified," "...shall within six months thereafter, provide himself..." with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gunpowder, 20 rifle balls, a shooting pouch, and a knapsack.[5] Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen.
This did not preclude the formation of so called "Volunteer Militias" which were formed, funded, and equipped by wealthy benefactors who offered their services to the States or National governments. Before the formation of the US, it was common for such units to be formed for local defense entirely without any State funding or direction. At the time of the writing of the Constitution such units were considered as "militia" and the distinction between "militia" and "volunteer" units didn't come about until after the passage of the Militia Acts. Such units could and did use their own criteria for membership and it was only after such a unit was accepted for national service that they were inspected to see if they met all of the requirements for such service. In other words, an 83 year old blind man could be a member in good standing of a local militia, as long as he had his own gun or one provided to him by another private citizen, and would only be rejected for militia service after the unit was accepted by the Chief Executive of the Government body to which the unit was offered.

Nor did it preclude the formation of units for the protection of villages, farms, or neighborhoods by private individuals.

After the Militia Acts, "Volunteer Militias" were filled out by persons who were not enrolled in the State Militias after the quotas established by the State had been met, or men who were disqualified for service as heads of households, sole surviving sons, or other criteria established by the State that further refined the Federal governments requirements for service---or 83 year old blind men---at the discretion of the guy who bought the uniforms and the beer at the annual picnic. The last time such a unit was contemplated was when Teddy Roosevelt offered to form and fund two Infantry Divisions for service in WW1, which he would command, but was turned down because Woodrow Wilson really didn't want the Republican former President to become a hero in yet another war and run against him in 1920.

"Regulated", in the military sense of the time, meant that the militia---all able bodied men---was familiar with his weapon and how to use it in accordance with the military practices of the time. As noted above, this could mean membership in a Volunteer Militia, or a veteran of previous service, or any number of ways an individual could become familiar with the how a soldier loaded and fired his weapon and what gear he needed to buy to do it. Private printings of books of instructions were available for purchase by individuals (or the State), but nothing was codified into law, it just meant, first you do this, then you do that, then you do this thing, then you point your weapon and squeeze the trigger when everybody else does.

So, if anti-gunners want to continue to believe that there is any debate on what the Framers under stood those words to mean, perhaps they ought to dig out Great Grampa's old letters home from WW1 so they can tell everybody he was a trail blazer for Marriage Equality.

But the key phrase is "the Right of the People". That phrase is used in Amendments 1, 2, & 4. If, this phrase is to have any meaning at all, it should have the same meaning each time it is used. Here are the examples:
Article (Amendment 1 - Freedom of expression and religion) 13
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article [II] (Amendment 2 - Bearing Arms)
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.

Article [IV] (Amendment 4 - Search and Seizure)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Those who argue that the Second Amendment does not codify an individual right to owning a weapon unless he is part of a State apparatus, is effectively arguing that individuals do not have the rights to Religion, Speech, or Security in papers and possessions unless they are similarly employed.

Given the Authoritarian leanings of the Democrat Party, it does't surprise me that most of those people who feel that way vote for their Candidates.
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Re: setback for 2nd amendment...

#7

Post by sarge » Thu Jun 09, 2016 5:55 pm

But SCOTUS recently put a finer point on the whole thing in its ruling on District of Columbia vs Heller where it found that Gun Ownership is a protected Individual Right, largely on the meaning of the phrase "the right of the people" as established in previous rulings on the 1st and 4th Amendments, particularly their interpretations during the Civil Rights battles, so the debate as to whether or not the Second Amendment applies to Individuals and not members of a militia, is over and anyone who doesn't understand that is either uninformed, misinformed, or engaging in wishful thinking.


Any further ruling on Gun Rights made by SCOTUS would first have to overturn Heller.
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Re: setback for 2nd amendment...

#8

Post by bubbanate99 » Thu Jun 09, 2016 6:42 pm

I look at it this way, we have the right to bear arms, not the right to hide them on our person

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Re: setback for 2nd amendment...

#9

Post by sarge » Thu Jun 09, 2016 8:21 pm

bubbanate99 wrote:I look at it this way, we have the right to bear arms, not the right to hide them on our person

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And SCOTUS may well rule that way.

But that makes this a States Rights case, not a Second Amendment case. There is nothing in this case that challenges an Individual Right to Keep and Bear arms. Any doubt about that was erased by the subsequent decision SCOTUS made in McDonald vs the city of Chicago.

This appeals court ruling is in conflict with a previous ruling by the 7th Circuit in Moore ve Madigan. That held that Illinois' restrictions on Concealed Carry violated the Courts intent in McDonald and Heller.
The decision answers a question that has lingered since the Supreme Court’s two major rulings, in 2008 and 2010, establishing a personal right to have a gun under the Second Amendment’s guarantee of a “right to keep and bear arms.” Most lower courts, however, have not extended that right beyond the home, interpreting the Supreme Court to have settled only that aspect of Second Amendment rights. The Justices have turned aside at least a half-dozen cases seeking to test the scope of the right beyond one’s home.

The Seventh Circuit, in its two-to-one decision, noted that the Supreme Court “has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home.” Nevertheless, the appeals court interpreted the Court’s prior review of the Amendment’s history to indicate that the right to “bear arms” must be interpreted to include a right to have a gun in public, to have it ready for use, and to have it for self-defense. The majority opinion, written by Circuit Judge Richard A. Posner, also said that the factual reality is that one is more likely to face threats away from one’s home, and thus will have more need to carry a gun for self-protection while out in public.
Which does mean it might to go to SCOTUS, if they decide to accept it, or let the 9th Circuit's ruling stand. If they let the ruling stand, it will only apply to those States overseen by the 9th Circuit.

If they decide to accept the case a ruling by SCOTUS that affirms the 9th Circuit's ruling would not change the status of an Individual Right to keep and bear arms because, as noted above, all debate about that has ended.

What it will do is affirm a county's right to limit the conditions of issuance of a Concealed Carry License, it will not order the State of California or any other to change thier Concealed Carry Laws (but does open the door for that). The Democrats may win a Anti-Gun Rights battle, and lose the 10th Amendement war thay've been fighting (and losing) for some time now.

But here's the wrinkle. Because SCOTUS has ruled that the 2nd Amendment is an Individual Right, the tests that would rightly apply would be the ones that have previously applied to the Individual Rights affirmed during the Civil Rights Battles of the 20th Century: Does the State's Laws make exercise of that right so difficult to exercise that it becomes impossible?
In making this case, Judge Callahan cites D.C. v. Heller, which decision, she suggests:
indicates that concealed-weapons prohibitions may be proper as long as individuals retain other means to exercise their Second Amendment right to bear arms for self-defense. However, where other ways of exercising one’s Second Amendment right are foreclosed, a prohibition on carrying concealed handguns constitutes a “severe restriction” on the Second Amendment right, just like the District of Columbia’s unconstitutional handgun ban in Heller.
In other words: California can ban concealed carry or it can ban open carry, but it can’t ban both. Interestingly enough, the majority doesn’t explicitly disagree with this proposition. Indeed, Judge Fletcher’s majority opinion deliberately leaves open the possibility that open carry may be constitutionally mandatory.


During the Civil Rights Era rulings on poll taxes and citizenship exams to be able to vote were held to be unconstitutional and were overturned, and other rulings overturned the rights of employers to require tests for employment that were not strictly work related.

Given that the Democrat Party was responsible for writing all of the Jim Crow laws that restricted the exercise of Individual Rights to the extent that Black folks could't exercise them, its no surprise to me that they continue in their Authoritarian appraoch to governance and problems that they define but have no basis in fact.

True Liberals had better be careful what they wish for. It will be interestingto see what they cherish more, thier commitment to Individual Civil Rights and limitations on how Government restricts them, or their pursuit of disarming the citizens of this country.
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Re: setback for 2nd amendment...

#10

Post by hikehunter » Thu Jun 09, 2016 11:59 pm

The way things are going....there is a real chance there is going to be a "gun fight" on this soon. The way the news is playing things there could even be a new "revolution" come about. i am just saying that a "Scout" is always prepared. May God help us. Prey that conservative heads prevail.
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Re: setback for 2nd amendment...

#11

Post by gmcpcs » Fri Jun 10, 2016 9:01 am

Dang, Sarge, you should teach constitutional law at the university!

My opinion is that this country has a heart problem, not really a liberal/conservative, political problem. However, it is all related. Society stands on three legs, the economic system, the political system and the religious/morality system. The three-legged stool has been shaky for a while now, on all three legs. I Guess anyone could argue cause and effect of that all day, but really...

The booming firearms sales in the US are not such a good thing that I can see, only in that this is a union of states, and the federal system is sick. Add multiple personal weapons to the mix, and the union is in danger. My opinion. States rights are coming to the fore in many of the battles playing out on the public scene, including the bathroom stupidity. These are tests, to see how far we the people are willing to let our God-given rights be coerced into submitting to some goofy, made up spurious rights by the Big Fed. (Just mark me down in the conspiracist column). Of course, our LT Gov is blowing steam about this, saying he will send back the Federal $$ the state gets. (That would be billions with a B) Well, it's a trap. Do you want to take food out of the mouths of babes? Take the already messed up school funding and send us back to the 18th century? I personally think Texas could probably make it on our own, or even a conglomeration of states, but you will see "revolution" first. I could go on about the bathroom thing, but that is probably going on in another thread here:-)

My favorite question from my last dr. visit:

"Do you have any guns in the house?" "No, I have no guns". Guns belong on a ship, and are measured in inches, i.e., 5" 54 caliber. Those won't fit in my house, but I'll take one mounted on a mobile platform :-)

Anyway,
Take it easy,
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Texas will again lift it's head and stand among the nations. It ought to do so, for no country upon the globe can compare with it in natural advantages.
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"...But as for me and my house, we will serve the LORD."
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Re: setback for 2nd amendment...

#12

Post by Scott » Fri Jun 10, 2016 9:55 am

gmcpcs wrote: ..... I personally think Texas could probably make it on our own, or even a conglomeration of states, but you will see "revolution" first...
I am not an extremist, I am not calling for revolution or anything like that, but I don't like all the power the Fed is trying to exert. I also am not an economist, but I gotta think that if all the income tax, and any other monies heading to DC, were sent to Austin, we would have plenty of Texas money to survive independently. We could then make our own laws about oil and drilling...

What I have seen as the battle of the last few years is urban vs rural. Regionally we are so connected with interweb and shtuff, that the north v south, iron belt vs whatever, is not as much of a factor. But the culture wars between urban and rural is real. And rural will almost always lose locally because a few cities in each state can out vote all the farmers & ranchers in the rest of the state. I have even heard politicians state that the rural areas need to get on board and accept they have lost.

If my doc asks if I have guns - "you bet, been doing curls, check these babies out" as I roll up my sleeves. :roll:
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Re: setback for 2nd amendment...

#13

Post by BillyBob66 » Fri Jun 10, 2016 10:11 am

gmcpcs wrote:Dang, Sarge, you should teach constitutional law at the university!

My opinion is that this country has a heart problem, not really a liberal/conservative, political problem. However, it is all related. Society stands on three legs, the economic system, the political system and the religious/morality system. The three-legged stool has been shaky for a while now, on all three legs. I Guess anyone could argue cause and effect of that all day, but really...

The booming firearms sales in the US are not such a good thing that I can see, only in that this is a union of states, and the federal system is sick. Add multiple personal weapons to the mix, and the union is in danger. My opinion. States rights are coming to the fore in many of the battles playing out on the public scene, including the bathroom stupidity. These are tests, to see how far we the people are willing to let our God-given rights be coerced into submitting to some goofy, made up spurious rights by the Big Fed. (Just mark me down in the conspiracist column). Of course, our LT Gov is blowing steam about this, saying he will send back the Federal $$ the state gets. (That would be billions with a B) Well, it's a trap. Do you want to take food out of the mouths of babes? Take the already messed up school funding and send us back to the 18th century? I personally think Texas could probably make it on our own, or even a conglomeration of states, but you will see "revolution" first. I could go on about the bathroom thing, but that is probably going on in another thread here:-)

My favorite question from my last dr. visit:

"Do you have any guns in the house?" "No, I have no guns". Guns belong on a ship, and are measured in inches, i.e., 5" 54 caliber. Those won't fit in my house, but I'll take one mounted on a mobile platform :-)

Anyway,
Take it easy,
GMCPCS
When you say: "this is a union of states, and the federal system is sick. Add multiple personal weapons to the mix, and the union is in danger. My opinion. States rights are coming to the fore in many of the battles playing out on the public scene, including the bathroom stupidity. These are tests, to see how far we the people are willing to let our God-given rights be coerced into submitting to some goofy, made up spurious rights by the Big Fed.", do you really think there is any such thing as states rights- and even much less such a thing as a "sovereign state"- though I have often heard that term used- since 1865?

It seems to me that a new principle was established then that boiled down to " no, you can not leave, we will not leave you alone, and if you try will will go all scorched earth on you. In the mean time, do what the Feds tell you to do". Even though the Declaration of Independence indicate something quite different regarding sovereign states, things have changed now.

Now I admit that, even after the War Between the States/War for Southern Independence, the country did not seem to realize the loss of rights was the result, and that such a thing as a sovereign state still existed. But it seems to me that over the last 150 years all pretence to that has disappeared. But, I could be wrong.

"In CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen United States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another,............................We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness......................But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Obviously, the north did not agree with such sentiments by 1860.
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Re: setback for 2nd amendment...

#14

Post by GregD » Fri Jun 10, 2016 11:23 am

BillyBob66 wrote: Obviously, the north did not agree with such sentiments by 1860.
No they did not.

But getting back to the original post of this thread, a CITIZEN appealed to the FEDERAL court to strike down a STATE or LOCAL law. And the court declined to limit the rights of the STATE (or LOCALity). So the whole "Federal government is bad" shtick is completely irrelevant here.

I am unconvinced by most of the arguments against firearm regulations that appeal to the Second Amendment short of situations like in Heller where the regulations in total have the same effect as a complete ban.

I am likewise unconvinced by many arguments FOR many firearm regulations that claim the regulation will have any significant positive effect.

I am far more receptive to arguments that focus on the practical implications of any specific regulation or regulation proposal. If a regulation isn't going to help more than it hurts, on balance, I'll side with the Libertarians and vote for fewer laws.

In this particular case I think it is very bad policy for the regulation to rely upon the discretion of law enforcement. If the person satisfies the practical requirements the license should be issued regardless of the opinion of law enforcement as to whether there is a legitimate need. It is too easy for discretion to be abused.

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Re: setback for 2nd amendment...

#15

Post by sarge » Fri Jun 10, 2016 12:10 pm

GregD wrote:
BillyBob66 wrote: Obviously, the north did not agree with such sentiments by 1860.
No they did not.

But getting back to the original post of this thread, a CITIZEN appealed to the FEDERAL court to strike down a STATE or LOCAL law. And the court declined to limit the rights of the STATE (or LOCALity). So the whole "Federal government is bad" shtick is completely irrelevant here.

I am unconvinced by most of the arguments against firearm regulations that appeal to the Second Amendment short of situations like in Heller where the regulations in total have the same effect as a complete ban.

I am likewise unconvinced by many arguments FOR many firearm regulations that claim the regulation will have any significant positive effect.

I am far more receptive to arguments that focus on the practical implications of any specific regulation or regulation proposal. If a regulation isn't going to help more than it hurts, on balance, I'll side with the Libertarians and vote for fewer laws.

In this particular case I think it is very bad policy for the regulation to rely upon the discretion of law enforcement. If the person satisfies the practical requirements the license should be issued regardless of the opinion of law enforcement as to whether there is a legitimate need. It is too easy for discretion to be abused.

Well, its irrelevant if you don't consider that it was a Federal Court that made the ruling that says the State can restrict rights, or that the ruling, if upheld by SCOTUS, would mean that a Federal Court gives the Federal government the same right.
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