Subject:
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Re: One of our favorite issues!
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Thu, 13 Jun 2002 17:23:28 GMT
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Viewed:
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291 times
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In lugnet.off-topic.debate, Dave Schuler writes:
> http://www.cnn.com/2002/LAW/06/10/scotus.guns.ap/index.html
This was a poorly written article, I think.
> Has the Supreme Court *ever* interpreted the 2nd to apply expressly to the
> individual?
I am not a lawyer, Dave!, but I think the answer is no.
But that doesn't really mean anything -- not if you understand the Ashwander
Doctrine which I have mentioned here in debate previously (see:
http://news.lugnet.com/off-topic/debate/?n=15052). The main thing is the
court will avoid answering constitutional questions if it can, leaving many
things on the table for future disputes. The court doesn't answer questions
it is not asked, and they do not write answers broader in scope than is
absolutely necessary. If there is any other way to get rid of a problem,
including just not granting certiorari in some instances, the court will use
that method to dispense with the cases presented to them. Simple as that.
The right of freemen to bear arms is probably so fundamental that it has
always been merely assumed to exist (there is ample evidence of this
assumption), and even if it was not assumed there is the Second Amendment
and probably the Ninth and Tenth Amendments also. In the Second Amendment
the matter turns on the meaning given to the word "militia" which I think
meant more than a mere army to the framers of the Constitution (and this
presuming authorial intent is important to you). The Ninth Amendment assures
us that "The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people" so even if
you thought the Second Amendment was just about an army you'd have this
route also. I'll skip the Tenth Amendment. The presumption that freemen
have the right and duty to bear arms is so strong that individuals having
been buying and selling arms since day one of our system of government.
To me the more interesting question is whether the right can be regulated or
narrowed in any way. The answer is probably -- just as freedom of speech
doesn't give one the right to shout "fire" in a crowded theater absent an
actual fire as motivation. Given that, where does one draw the line between
a right well regulated and a right essentially taken away?
-- Hop-Frog
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Message has 1 Reply:
 | | Re: One of our favorite issues!
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| (...) Upon rereading it, I agree. It's a bit more scattershot than I'd initially thought. (...) I suppose that, as a matter of practice, to do otherwise would cause the judiciary to sort of bleed into the legislature. If there is any other way to (...) (22 years ago, 13-Jun-02, to lugnet.off-topic.debate)
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Message is in Reply To:
| | One of our favorite issues!
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| (URL) the Supreme Court *ever* interpreted the 2nd to apply expressly to the individual? Dave! (I probably won't get too involved in any debates that ensue regarding this issue, since I have previously demonstrated a somewhat hot temper on the (...) (22 years ago, 11-Jun-02, to lugnet.off-topic.debate)
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