John Paul Stevens on the Second Amendment

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Henry Vilas
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Re: John Paul Stevens on the Second Amendment

Postby Henry Vilas » Wed Apr 16, 2014 12:21 pm

Are you preparing for your own long march in case you think you have a right to be seditious?

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Re: John Paul Stevens on the Second Amendment

Postby Gentle Man » Wed Apr 16, 2014 2:34 pm

Henry Vilas wrote:Are you preparing for your own long march in case you think you have a right to be seditious?


No. Are you? Seems to be a popular topic in your mind.

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Re: John Paul Stevens on the Second Amendment

Postby Henry Vilas » Wed Apr 16, 2014 2:37 pm

Gentle Man wrote:
Henry Vilas wrote:Are you preparing for your own long march in case you think you have a right to be seditious?

No. Are you? Seems to be a popular topic in your mind.

YOU are the one saying you need arms in case the government goes bad (in your opinion) and needs to be overthrown. And you've said it more than once.

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Re: John Paul Stevens on the Second Amendment

Postby Gentle Man » Wed Apr 16, 2014 4:27 pm

Henry Vilas wrote:
Gentle Man wrote:
Henry Vilas wrote:Are you preparing for your own long march in case you think you have a right to be seditious?

No. Are you? Seems to be a popular topic in your mind.

YOU are the one saying you need arms in case the government goes bad (in your opinion) and needs to be overthrown. And you've said it more than once.


I did? I said I personally need guns in case the government needs to be overthrown? Are you sure you're not confusing me with your imagination? I seem to recall saying that having guns isn't so much for the purpose of overthrowing a despotic government, but to assure that a despotic government never arises in the first place. Huge difference. Recall that the Second Amendment refers to what is necessary to "the security of a free state." Doesn't say "necessary to the restoration of a free state." "Security" implies the continued maintenance of a certain condition, one of freedom. It is a deterrent.

When you look around the world at places where people are actually fighting despotic governments, they do need guns. And they didn't have them at the time the despotic government arose. We haven't had a truly despotic government here. Ever wonder why? Or, more to the point wonder why somewhat despotic governments have existed only locally in places like Chicago and NYC?

I don't need guns at all. I choose to have them for recreation and personal security. If the government was to ever need to be violently overthrown-- a topic you seem oddly obsessed with-- I might choose to have guns then too. So would everyone with half a sense of decency. Maybe even you.

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Re: John Paul Stevens on the Second Amendment

Postby snoqueen » Wed Apr 16, 2014 4:29 pm

This is idealism in its worst guise, which is delusion. It's Branch Davidian, Posse Comitatus, Timothy McVeigh, Idaho Citadel-style delusion.

Historically these things have not turned out well. Sometimes they succumb to schisms and age, other times it's more dramatic.

Years ago in another town, I lived neighbors with a guy who was heavy into the Posse. Time passed, he got old and sick, and in the last year or two of his life he was shit out of money and needed help. I bought his little piece of property off him so he would have something to live on. I am not sure he even knew I was the buyer, because he had lost his mind by that time.

It was a poor financial decision on my part but the property -- inherited from his old man, a perfectly normal guy -- was landlocked and I was the only feasible buyer. My Posse neighbor probably went to his grave declaring the government, social security, medicare, and anything else that could have helped him were unconstitutional or something -- I think he took some assistance from the country toward the end, but he would never pay in to the normal social support network so when the time came he didn't have much assistance.

I was glad to help the old coot keep his dignity, but he was a complete fool. You can live your whole life railing against the government and believing the great uprising is just around the corner, but in the end you're as helpless as everyone else. I can't see where this guy ever deterred a thing.

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Re: John Paul Stevens on the Second Amendment

Postby Huckleby » Wed Apr 16, 2014 7:50 pm

Gentle Man wrote: Second Amendment refers to what is necessary to "the security of a free state." Doesn't say "necessary to the restoration of a free state." "Security" implies the continued maintenance of a certain condition, one of freedom.


You may have the belief that guns are needed to protect the citizens from a potentially tyranical government. Fine, I respect that view. But there is zero ambiguity that the 2nd amendment supported anything of the sort. Individual gun ownership was sanctioned, but only so far as it facilitated militias regulated by the states. One of the late 19th century cases that I mentioned above reaffirmed this original intent .

The idea that the 2nd Amendment is a sanctioning of weapons for anti-government protection is a late 20th century fabrication of the NRA crowd.

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Re: John Paul Stevens on the Second Amendment

Postby Gentle Man » Thu Apr 17, 2014 10:04 am

Huckleby wrote:You may have the belief that guns are needed to protect the citizens from a potentially tyranical government. Fine, I respect that view. But there is zero ambiguity that the 2nd amendment supported anything of the sort. Individual gun ownership was sanctioned, but only so far as it facilitated militias regulated by the states. One of the late 19th century cases that I mentioned above reaffirmed this original intent .

The idea that the 2nd Amendment is a sanctioning of weapons for anti-government protection is a late 20th century fabrication of the NRA crowd.


That's an absurd assertion from the very start and runs contrary to the very purpose of the Bill of Rights. The Bill of Rights is, fundamentally and historically, a list of limitations put on the power of the federal government. So why, I ask you, would they have put limitations on the power of the government to infringe on the right to keep and bear arms if they did not perceive that there was a danger to liberty from the government if such limitations on government power were not put in place? In addition, at the time of ratification, a great concern was the danger to liberty presented by standing armies. The Second Amendment was very clearly a response to this concern by assuring that the balance of power always rested with the People. Why would there have been a concern with the dangers of standing armies if it didn't refer to the danger that a standing army could act as the intrument of tyranny by the government?

It was not the 20th Century NRA that wrote "Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed." This was by Noah Webster in 1788. The idea was then repeated by James Madison in Federalist Paper #46 and by Alexander Hamilton in Federalist Paper #29. If you want an more detailed exposition of the historical basis for the Second Amendment as a protection against government read D.C. v Heller. Scalia outlines how the principle was handed-down from 17th Century English law and was a prominent issue at the time the U.S. Constitution was drafted and ratified. You couldn't be more historically wrong in your assertion, and demonstrably so. The Second Amendment--no, the entire Bill of Rights-- is an anti-government document. If you don't understand that, then you simply have no grasp, historically or conceptually, of a fundamental founding principle of the United States.

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Re: John Paul Stevens on the Second Amendment

Postby Gentle Man » Thu Apr 17, 2014 10:08 am

snoqueen wrote:This is idealism in its worst guise, which is delusion. It's Branch Davidian, Posse Comitatus, Timothy McVeigh, Idaho Citadel-style delusion....


Would be nice if you define the "this" to which you refer. Otherwise it's impossible to know exactly what you're rambling on about, Sno.

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Re: John Paul Stevens on the Second Amendment

Postby snoqueen » Thu Apr 17, 2014 11:34 am

The idea you can outgun (or out-bomb) the world's largest and best financed military outfit, for starters.

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Re: John Paul Stevens on the Second Amendment

Postby johnfajardohenry » Thu Apr 17, 2014 11:36 am

snoqueen wrote:I am probably among those who agree the second amendment is as unsuited to twenty first century society as prohibition was to the twentieth.


There is an interesting thing that most people miss, including myself until I read Okrent's history of prohibition a few years ago. The 18th Amendment was, and still is, the only Amendment that has reduced rather freedoms.

You see how well it worked out, don't you?

Why do you think reducing freedoms in another area like gun ownership would work any better?

We have little leverage so the next option is revising the thing so at least the wording is less ambiguous.


Why do you think you have little leverage? Is that because of the democratic nature of the US? That the minority does not get to decide for the majority?

Would you be OK with putting it to a national public vote? Something like a California Prop 13 or Prop 8 style initiative (if that existed on a national level). Suppose it voted in favor of modifying 2A to say something like "The right of individual citizens to keep and bear arms for their personal use shall not be infringed or regulated in any way"

You would accept that, right? After all, democracy!

One danger is that you might just find out that you have even less leverage than you think you have.

John Henry

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Re: John Paul Stevens on the Second Amendment

Postby Gentle Man » Thu Apr 17, 2014 12:01 pm

snoqueen wrote:The idea you can outgun (or out-bomb) the world's largest and best financed military outfit, for starters.


Yeah, that probably would be delusional. Although I doubt any of the groups or individuals you listed actually claimed or believed they could outgun the world's largest and best-financed military outfit. But tell that to the veterans of the American Revolution who went up against the best military of the time. Tell it to the Viet Cong. Tell it to the Greeks at Thermopylae. Tell it to the Mujahideen when they fought the Soviet Union. Tell it to Fidel Castro who began his revolution with just over 80 revolutionaries, only 19 of survived to make it to the rally point when he went up against thousands in the Cuban army.

There are many historical examples that show you can win even when outgunned, don't you agree? Having the most or biggest guns never guarantees a win, whether it's on a personal level or a regional or national level. You seem to be making that assumption that having the most and biggest guns always wins. It's not a sound assumption.

Also, you don't seem to have read what I wrote about avoiding the need to ever go toe-to-toe domestically with a powerful military. Do you have any comments on that?

I'm sorry, would you be so kind as to explain your point again?

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Re: John Paul Stevens on the Second Amendment

Postby Gentle Man » Thu Apr 17, 2014 12:22 pm

johnfajardohenry wrote:One danger is that you might just find out that you have even less leverage than you think you have.

John Henry


Which is exactly why my reply to those who say the Second Amendment should be repealed (or modified) is "Go ahead and try. The procedures for doing so are in place. You think you can get 38 state legislatures to vote in favor of repeal? You'd be lucky to get five." You would have to facilitate a massive change of opinion within the United States to pull it off. And given that, on the whole, gun rights are trending towards expansion in most of the land, that movement for a massive change of opinion is trying to swim against a strong current. People can't help but notice that crime rates have declined during a nearly 30-year period when gun rights have grown. Also they can't help noticing that crime rates soared during this period in the places that enacted the most repressive gun control, e.g., Washington, D.C., Chicago. These are pretty inconvenient facts for the gun control crowd.

To think you won't have the Second Amendment around with the same wording is really a sign of delusion.

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Re: John Paul Stevens on the Second Amendment

Postby Huckleby » Thu Apr 17, 2014 3:42 pm

Gentle Man wrote:That's an absurd assertion from the very start and runs contrary to the very purpose of the Bill of Rights. The Bill of Rights is, fundamentally and historically, a list of limitations put on the power of the federal government. So why, I ask you, would they have put limitations on the power of the government to infringe on the right to keep and bear arms if they did not perceive that there was a danger to liberty from the government if such limitations on government power were not put in place?

You present a non-sequitur. Because the Bill of Rights limits government power does not imply that framers meant to arm the people against the government. That's just your wishful thinking. In fact, the purpose of bearing arms was so citizens would be able to join militias regulated by the government. That was clear, and re-enforced by later Supreme Court rulings. The "common enemy" would be Indian tribes, or invading armies.

Gentle Man wrote:"Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed." This was by Noah Webster in 1788.
This quote is a good example of why many arguments are never settled.
You have found a quote from one man, a legitimate shred of evidence, that supports your position.
On the other side are the supreme court rulings, and a mountain of evidence that arming citizens against the government was never an intent.
If you want to weigh the evidence in the way you are, nothing I can say about it.

If the purpose of the 2nd Amendment is to arm the citizens against the U.S. Government, then logically jet fighters and missile systems are legitimate and necessary tools of the well-appointed vigilante.

You gun guys are lost in madness.

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Re: John Paul Stevens on the Second Amendment

Postby snoqueen » Thu Apr 17, 2014 5:00 pm

Gentle Man wrote:
snoqueen wrote:The idea you can outgun (or out-bomb) the world's largest and best financed military outfit, for starters.


....Tell that to the veterans of the American Revolution who went up against the best military of the time. Tell it to the Viet Cong. Tell it to the Greeks at Thermopylae. Tell it to the Mujahideen when they fought the Soviet Union. Tell it to Fidel Castro who began his revolution with just over 80 revolutionaries, only 19 of survived to make it to the rally point when he went up against thousands in the Cuban army.


Sure, smaller forces have defeated greater ones more than once in military history. I would add Blackhawk, who came close to pulling it off on the very ground we are writing from. But it's got nothing to do with the dead-enders I listed and you know it. I have no insight into what drives stuff like that, but I think it's delusion. Maybe you know more about their mindset than I do.

Also, you don't seem to have read what I wrote about avoiding the need to ever go toe-to-toe domestically with a powerful military. Do you have any comments on that?


Your example of the viet cong is comment enough. They fought the US forces pretty much to a draw (or worse) on the ground, and the right wingers in Congress started making noises about "dropping the big one." Thanks to political forces at work inside the US, our capability to bomb everybody back into the stone age -- which would have wiped the viet cong and much else right off the face of the earth -- fortunately was not utilized.

It wasn't due to gun threats within the US. It was the political unpopularity of bombing and of the entire war. Nobody in congress or the white house or the pentagon acted as they did to keep gun-bearers at home from coming after them, for crying out loud. This was one instance in which democracy actually worked, although slowly and painfully.

The same is true of the political power of the gun lobby today. If you think votes in congress are being shifted because our representatives fear citizens with guns, you really ARE delusional. They fear (or at least bow to) the money wielded by the gun lobby.

Lots of forces -- some quite unsavory -- affect how our country governs itself but I think gun threats against government officials are way low on the list.

If you think internal gun threats against various courses of action by the government actually work, you should give examples and point out the mechanism by which this operates.

How about the Black Panthers? Nah. We know how well that worked out.

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Re: John Paul Stevens on the Second Amendment

Postby Jeerleader » Thu Apr 17, 2014 5:04 pm

Huckleby wrote:From wikipedia:


Wikipedia legal scholarship is lacking to say the least.

Have you ever read the cases?

Huckleby wrote:United States v. Cruikshank (1875) the Second Amendment has no other effect than to restrict the powers of the national government, . . .


No longer pertinent after McDonald v Chicago. The 2nd Amendment is enforceable upon state action now.

Huckleby wrote:United States v. Cruikshank (1875) . . . states can limit firearms all they want.


You would be hard pressed to quote that sentiment from the decision. That is at best either a ridiculous inventive reading of the case out of ignorance or at worst, an outright misrepresentation intended to deceive . . . I choose the latter.

Cruikshank wasn't about gun control, it was about the KKK disarming, kidnapping and lynching two former slaves, then citizens in1873 Louisiana.

The outcome of the case, rejecting a multiple count federal rights infringement, was based only on the fact that the KKK members were private citizens not state agents thus there was no federal issue / jurisdiction. Claims regarding the right to assemble and to vote were dismissed on the same grounds.

What Cruikshank did say, that is applicable law today (and was cited / quoted by SCOTUS in 2008) was that:


    "The right . . . of "bearing arms for a lawful purpose" [again, that of self-defense from the KKK by Freemen in 1873 Louisiana] . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . .”


That means that since the right to arms is not created, given, granted or established by the 2nd Amendment, it exists without any reference to, or reliance on, the 2nd Amendment or any other part of the Constitution.

Understand that endorses without equivocation, the individual right interpretation.

Huckleby wrote:Presser v. Illinois (1886) This decision upheld the States' authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.


And there is a perfect example of Wrongandbiasedipedia.

You really need to pay attention to the footnotes; the part in red is actually from a book written by a gun control advocate at a time (2001) when the wheels were coming off the "collective right" wagon. Not only is the red text wrong, it is intended to deceive; Presser says nothing of the sort.

In fact, Presser refers to and quotes Cruikshank, substituting Cruikshank's case specific language of "bearing arms for a lawful purpose" for the familiar language of the 2nd Amendment:


    "the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."


What these two similar statements from SCOTUS mean is that the right to keep and bear arms simply can not be conditioned upon, or qualified by, a person's organized militia attachment because the organized militia is wholly established by the Constitution and entirely dependent upon the Constitution for its existence. To argue that the right which pre-exists the Constitution and does not in any manner depend on the Constitution, is actually dependent upon one's attachment to a structure created by the Constitution, is anti-gunner mental gymnastics I can not follow.

Huckleby wrote: However the court said: "A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force."


Why is that in quotes?

That is not the wording of the Court.

The actual wording is much more compelling and informational as to the origin of the right to arms and the federal protection of the right, existing on multiple planes, without reference to the 2nd Amendment.


    "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."


There is much to discuss in that paragraph if you are up to it; we can begin with an analysis of its meaning from you.

Huckleby wrote:Robertson v. Baldwin (1897) concealed carry laws don't violate 2nd amendment.


Not a remarkable or noteworthy statement. In 1897 the 2nd Amendment was not enforceable upon the states and only states had laws on concealed carry.

Miller needs its own post to follow shortly. . .


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