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View Poll Results: Is this the same rule?
Yes 5 14.29%
No 26 74.29%
Maybe 4 11.43%
Voters: 35. You may not vote on this poll

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Old 4th December 2021, 01:38 PM   #41
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Originally Posted by SuburbanTurkey View Post
I never found the the wordplay arguments from anti-gun types very convincing. It seems extremely clear to me that the 2nd amendment, like the rest of the bill of rights, is about conferring individual rights. We can thank the pointlessly flowery language employed by the Founding Fathers for this tedium.
The context of the Bill of Rights is a debate between federalists and anti-federalists regarding the powers of centralized government. The First Amendment, for instance, says "Congress shall make no law." States made laws restricting the speech of individuals, establishing churches, and so on.

We have every reason to believe state and municipal governments had the authority to protect public safety, which could eventually include restrictions on arms. If states did not want to restrict arms, then they could go that route as well. The irony is that "originalists" now use the federal government to invalidate state and local laws. This runs contrary to the framers' intentions. What's the rationale? "Well, if armed citizens are using guns to commit crime, kill each other in private disputes etc., and as a result local governments restrict individual firearm ownership, then the states are just not going to be able to raise militias for our common defense." It's transparently silly, especially after the War of 1812.

Collective vs. Individual is a digression. Civil liberties are limitations on the government, and the Bill of Rights is about restricting the federal government.

As far as my browser can tell, The Articles of Confederation mentions "militia" one time:

Quote:
No vessels of war shall be kept up in time of peace, by any state, except such number only, as shall be deemed necessary by the united states, in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up, by any state, in time of peace, except such number only as, in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accounted, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.
The "flowery" old-timey language is clearer here than in the Constitution. "Well-regulated" is not government regulating the oil industry: it means well-disciplined/trained/equipped.

The Second Amendment probably primarily modifies Article II of the Constitution, which reads, "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."
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Old 4th December 2021, 02:06 PM   #42
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I've never participated in these kinds of debates, but is it analogous to something like:

"Rain being very common this time of year, having an umbrella with you on your walk is a good idea." --> "It's a good idea to have an umbrella with you" ? The pattern seems to be "justification, rule" being no different than just the rule.

I may regret even weighing in on this.
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Old 4th December 2021, 02:55 PM   #43
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Originally Posted by Ron Obvious View Post
I've never participated in these kinds of debates, but is it analogous to something like:

"Rain being very common this time of year, having an umbrella with you on your walk is a good idea." --> "It's a good idea to have an umbrella with you" ? The pattern seems to be "justification, rule" being no different than just the rule.

I may regret even weighing in on this.
That's pretty much how I read it, but with the slight addition that naming the justification suggests that the rule, having a purpose, could be changed if the underlying justification changes. In your umbrella case, the justification neither calls for nor requires the rule to vary, but if something like climate change were to result in a permanent drought, or if a technological revolution put a huge rainproof dome over the world, it could be argued that the justification has changed, and that the rule-makers' inclusion of it in the original foresaw that possibility. After all, one could just have said "you ought to have an umbrella with you" and left it at that.
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Old 4th December 2021, 03:01 PM   #44
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Originally Posted by Cain View Post

Collective vs. Individual is a digression. Civil liberties are limitations on the government, and the Bill of Rights is about restricting the federal government.
That may have been true before the passage of the 14th amendment which requires state governments to also recognize these individual rights. The whole "states right" thing was heavily curtailed as a consequence of the civil war.
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Old 4th December 2021, 03:02 PM   #45
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Originally Posted by bruto View Post
That's pretty much how I read it, but with the slight addition that naming the justification suggests that the rule, having a purpose, could be changed if the underlying justification changes. In your umbrella case, the justification neither calls for nor requires the rule to vary, but if something like climate change were to result in a permanent drought, or if a technological revolution put a huge rainproof dome over the world, it could be argued that the justification has changed, and that the rule-makers' inclusion of it in the original foresaw that possibility. After all, one could just have said "you ought to have an umbrella with you" and left it at that.
Really? It ses obviously to me that if the situation changes, you are still stuck with rule.

For example, if the NFL passed a rule that included a statement that a rule was in place to accomplish X, and then it turned out to make it worse, nothing in there reverses the rule.

Maybe I'm weird though. If you had me pick between interpretation X and interpretation Y of a rule, both had equal evidence that the respective interpretation was correct, but X was unambiguously the intent of the rule writer.....I would flip a coin.
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Old 4th December 2021, 03:09 PM   #46
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Originally Posted by SuburbanTurkey View Post
That may have been true before the passage of the 14th amendment which requires state governments to also recognize these individual rights. The whole "states right" thing was heavily curtailed as a consequence of the civil war.
I sometimes wonder if any of the original colonies would have signed on, if they'd known how it would turn out.
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Old 4th December 2021, 03:21 PM   #47
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Originally Posted by theprestige View Post
I sometimes wonder if any of the original colonies would have signed on, if they'd known how it would turn out.
Probably not. The Southern ones would not have entered any agreement that they knew would end slavery.
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Old 4th December 2021, 03:50 PM   #48
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Originally Posted by SuburbanTurkey View Post
That may have been true before the passage of the 14th amendment which requires state governments to also recognize these individual rights. The whole "states right" thing was heavily curtailed as a consequence of the civil war.
It is indeed much easier to argue for individual rights against state governments on 14th Amendment grounds, but the 14th Amendment was created well after the Founders and ratifiers had died, so it's not going to resolve an interpretation about the original meaning of the 2nd Amendment. And, of course, the Re-Founders were largely ignored in the 19th century.

As I remarked earlier, one can argue that the 2A provides an individual right to own a gun, but one cannot coherently make that argument on originalist grounds.
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Old 4th December 2021, 04:08 PM   #49
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Originally Posted by Cain View Post
It is indeed much easier to argue for individual rights against state governments on 14th Amendment grounds, but the 14th Amendment was created well after the Founders and ratifiers had died, so it's not going to resolve an interpretation about the original meaning of the 2nd Amendment. And, of course, the Re-Founders were largely ignored in the 19th century.

As I remarked earlier, one can argue that the 2A provides an individual right to own a gun, but one cannot coherently make that argument on originalist grounds.
Who cares what the founding fathers thought? A bunch of out of touch aristocrats and slavers, screw 'em. What the 2nd amendment (and nearly everything else about our government) means today is very different from what they intended, which is good. The originalist view that the intentions of a bunch of syphilis-addled freaks from the 18th century are important is very much begging the question.
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Old 4th December 2021, 04:11 PM   #50
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Originally Posted by BobTheCoward View Post
Maybe I'm weird though.
No need to speculate. You are definitely weird.

Quote:
If you had me pick between interpretation X and interpretation Y of a rule, both had equal evidence that the respective interpretation was correct, but X was unambiguously the intent of the rule writer.....I would flip a coin.
A rule is a rule. But should you obey a law that is outdated and no longer relevant?

The United States of Crazy Laws
Quote:
In Kentucky it is illegal to dye your ducklings blue and offer them for sale, unless you have more than six to put up for sale at once.

Minnesota ducks must stay between state lines if you have them on top of your head...

In Alabama it is illegal to wear a fake mustache that causes laughter in church, while mustaches are illegal in Indiana if the bearer as a tendency to habitually kiss other humans. In Wisconsin it is illegal to serve butter substitutes in prison; in Utah it is illegal NOT to drink milk; and in South Dakota don’t sleep in a cheese factory. A generous act in Louisiana could backfire—you can be fined $500 for sending a pizza order to someone’s house without his or her knowledge.
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Old 4th December 2021, 04:23 PM   #51
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Originally Posted by SuburbanTurkey View Post
Who cares what the founding fathers thought?
Anyone trying to correctly interpret what they wrote. Words don't exist "out there" like Platonic forms, they exist as a means to convey ideas from one mind to another.
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Old 4th December 2021, 04:26 PM   #52
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Originally Posted by d4m10n View Post
Anyone trying to correctly interpret what they wrote. Words don't exist "out there" like Platonic forms, they exist as a means to convey ideas from one mind to another.
The founding fathers are not the exclusive authors of our laws. The totality that is our constitution includes authors well after all these weird freaks were dead. The meaning of just about every element of our government has changed many times since these degenerates put quill to parchment.

Originalism is a dog-**** legal theory.
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Old 4th December 2021, 04:42 PM   #53
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Originally Posted by Roger Ramjets View Post
A rule is a rule. But should you obey a law that is outdated and no longer relevant?

The United States of Crazy Laws
Like many of these crazy laws, there is no citation and it appears to be made up. I believe it is based on Minnesota Statute 325F.37 which says that it is illegal to carry for sale any cotton duck without having marked the true and correct weight and a description of any filler. Cotton duck is like canvas. The word comes from Dutch doek meaning linen canvas. Nothing to do with ducks. Crossing borders and carrying something on your head would technically apply to carrying for sale unmarked cotton duck because those are possible ways to carry such an item for sale, but there is nothing in the law about those specifics and they are just added to make the law sound more wacky.
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Old 4th December 2021, 05:15 PM   #54
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Originally Posted by SuburbanTurkey View Post
Who cares what the founding fathers thought? A bunch of out of touch aristocrats and slavers, screw 'em. What the 2nd amendment (and nearly everything else about our government) means today is very different from what they intended, which is good. The originalist view that the intentions of a bunch of syphilis-addled freaks from the 18th century are important is very much begging the question.
Well, I'm not committed to out-sourcing moral reasoning to the Founding Fathers, but this thread IS about the meaning of the 2nd Amendment. Historical context will figure prominently.

Jack Rakove had a famous article titled, "The Second Amendment: The Highest Form of Originalism." He mentioned that it's pretty silly 18th-century views of firearms weigh so heavily when technology has completely changed. Empirical arguments should weigh more heavily, but Americans are cultists when it comes to the Constitution and firearms.
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Old 4th December 2021, 05:17 PM   #55
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It was to deal with states. The feds were not to interfere, leaving them to run their militias. Therefore the subject of citizens and guns was left to the states. It was assumed they would figure it out, frontiers and all. The Canadian (or Brit) border was a federal issue.
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Old 4th December 2021, 05:25 PM   #56
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Originally Posted by SuburbanTurkey View Post
The founding fathers are not the exclusive authors of our laws.
I'm well aware, but then I was talking about the OP.

Originally Posted by SuburbanTurkey View Post
Originalism is a dog-**** legal theory.
If there is a legal theory which completely disregards original authorial intent, I'd be fascinated to read about it.
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Old 4th December 2021, 06:36 PM   #57
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Originally Posted by Cain View Post
Well, I'm not committed to out-sourcing moral reasoning to the Founding Fathers, but this thread IS about the meaning of the 2nd Amendment. Historical context will figure prominently.

Jack Rakove had a famous article titled, "The Second Amendment: The Highest Form of Originalism." He mentioned that it's pretty silly 18th-century views of firearms weigh so heavily when technology has completely changed. Empirical arguments should weigh more heavily, but Americans are cultists when it comes to the Constitution and firearms.
Acting like the text means anything shows a tremendous ignorance of how power is actually wielded.

The 2nd amendment means whatever the courts decides it means, and the courts are politically appointed positions. Anything else is counting how many angels can dance on the head of a pin.
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Old 4th December 2021, 06:49 PM   #58
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Originally Posted by SuburbanTurkey View Post
The 2nd amendment means whatever the courts decides it means...
Any amendment, actually. Some justices have gone so far as to read in a right to bodily autonomy for females even though we can be sure the authors didn't have that in mind.

That said, I think it is interesting to ask what the sentences were originally intended to mean, especially if it turns out that self-identified originalists have badly missed the mark.
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Old 4th December 2021, 07:45 PM   #59
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Originally Posted by BobTheCoward View Post
Really? It ses obviously to me that if the situation changes, you are still stuck with rule.

For example, if the NFL passed a rule that included a statement that a rule was in place to accomplish X, and then it turned out to make it worse, nothing in there reverses the rule.

Maybe I'm weird though. If you had me pick between interpretation X and interpretation Y of a rule, both had equal evidence that the respective interpretation was correct, but X was unambiguously the intent of the rule writer.....I would flip a coin.
A game and a constitution are a bit different. A game rule has little if any room for interpretation, but some authority can simply change it. A rule doesn't work? Fine, new rule. The Constitution can be amended, but it can also be reinterpreted, which is why we have a Supreme Court which has been doing just that for the last couple of centuries. The Constitution is short and in some cases pretty lacking in detailed definition, thus remaining somewhat flexible, and since the people who wrote it were not fools, it seems likely that they wanted it that way.

The court cannot, of course, change the wording of a rule - that can only be done by amendment - but it certainly can and does change the way an ambiguous one is interpreted, especially, it seems, regarding rights that might conflict with other rights. And insofar as the statement of purpose is part of the rule, I think it forms part of what has to be considered when considering what the rule is about.

So I remain pretty much in the "maybe" camp. I think the first part of the amendment allows control without compelling it.
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Old 4th December 2021, 08:12 PM   #60
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Originally Posted by bruto View Post
A game and a constitution are a bit different. A game rule has little if any room for interpretation, but some authority can simply change it. A rule doesn't work? Fine, new rule. The Constitution can be amended, but it can also be reinterpreted, which is why we have a Supreme Court which has been doing just that for the last couple of centuries. The Constitution is short and in some cases pretty lacking in detailed definition, thus remaining somewhat flexible, and since the people who wrote it were not fools, it seems likely that they wanted it that way.
And yet, everybody seems to find a successful interpretation in that lack of detail. It seems like any given person's method of interpretation should have returned an ERROR code on occasion.
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Old 4th December 2021, 08:21 PM   #61
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Originally Posted by SuburbanTurkey View Post
Acting like the text means anything shows a tremendous ignorance of how power is actually wielded.
You should have written something to this effect in your original post. Unfortunately, I did take your words to have meaning, and I probably should not have.

Political power is also wielded by the belief that 1) certain texts are sacred and 2) they possess a particular meaning. If people think the 2A means XYZ, then that understanding has power.

It's a bit facile to say courts are reducible to raw power. Loose constructionist interpretations are also a consequence of a difficult amendment process, a broken legislature, and stubbornly backward states that would insist on Jim Crow.

As far as the Second Amendment goes, actual historians criticize Scalia's take as textbook "law office history." Second Amendment mythology is pervasive among the laity, including advocates of strict gun control.
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Old 4th December 2021, 09:39 PM   #62
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Originally Posted by SuburbanTurkey View Post
Who cares what the founding fathers thought? A bunch of out of touch aristocrats and slavers, screw 'em. What the 2nd amendment (and nearly everything else about our government) means today is very different from what they intended, which is good. The originalist view that the intentions of a bunch of syphilis-addled freaks from the 18th century are important is very much begging the question.
I think you are being a bit hyperbolic. That said, I don't care that much about what they thought. Hell, Jefferson who was not a delegate to the Constitutional Convention that created the US Constitution (He was the Ambassador to France) said in his writings that it was hubris to create a Constitution that would rule over future generations as the problems and the people would be drastically different.
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Old 4th December 2021, 09:52 PM   #63
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Originally Posted by Roger Ramjets View Post
No need to speculate. You are definitely weird.

A rule is a rule. But should you obey a law that is outdated and no longer relevant?
Yes.

But every law is two parts. if you choose to not do X, you receive outcome A, and if you chose to do X, you receive outcome B. Choosing to do X and receiving outcome B is obeying the law.
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Old 4th December 2021, 11:37 PM   #64
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Originally Posted by BobTheCoward View Post
And yet, everybody seems to find a successful interpretation in that lack of detail. It seems like any given person's method of interpretation should have returned an ERROR code on occasion.
What do you mean by "successful?" A lack of detail more or less demands an interpretation, but whatever is the current law is the only successful one. That does not mean it is not subject to argument and change.
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Old 5th December 2021, 06:15 AM   #65
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Originally Posted by bruto View Post
What do you mean by "successful?" A lack of detail more or less demands an interpretation, but whatever is the current law is the only successful one. That does not mean it is not subject to argument and change.
Successful in that it always produces a result. No one ever comes back and says this time it just isn't possible to interpret it on the given question.
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