New Rant on Old Topic

Discussion in 'Legal and Activism' started by Balota, Aug 25, 2012.

  1. Balota

    Balota ... but I used to play keyboards.

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    OK, I'm sorry that this is surely a repeat of previous rants. But I just gotta vent someplace. Please feel free to kill the thread if it's inappropriate.

    <<RANT ON>>
    "A well regulated millitia, being necessary to security of a free state, the right of the people to keep and bear arms shall not be infringed."

    I just read through a reminder article about interstate transportation of firearms. For the most part FOPA (Firearms Owners Protection Act) protects people who are transporting firearms across state lines. But only under certain conditions. Gun must be unloaded and locked up in an inaccessible location. Ammunition must be locked up in a separate container and stored in an inaccessible location.

    Then comes the kicker: Anyplace in the vehicle is considered to be accessible during a hotel stay! Not hard to imagine that an impound lot or other location where a vehicle involved in an accident might be stored would also be considered to be "accessible". Once the gun in "accessible", local state laws apply.

    Thus, when driving through a restrictive state, the restrictions (unconstitutional laws) pose a serious risk to a gun owner in spite of FOPA intention to protect. Such a risk clearly "infringes" the right of the gun owner to keep and bear arms.

    How hard is this to understand? "...the right of the people to keep and bear arms SHALL NOT BE INFRINGED (period)." Any state law that creates any risk to a gun owner under such conditions is clearly unconstitutional.

    GRRRR....

    Ok, <<RANT OFF>>
     
  2. bkt

    bkt New Member

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    The Bill of Rights originally applied only to the federal government and not state or local governments.

    Many articles in the BoR have been legally incorporated against state and lesser governments. The second amendment, in spite of the 9th Circuit ruling and the SCOTUS/Heller ruling, is still not recognized as being incorporated against the states.

    Sure, the problem you're pointing out is a serious one. New York State has some pretty strict gun laws and NO reciprocity with any other state on handgun permits. Stopping for the night or getting in an accident could turn you into a felon. That's just plain evil, of course, but until the people demand a change this is what you've got.
     

  3. Millwright

    Millwright New Member

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    NJ used, (and perhaps still does), to make a killing every fall under these exact circumstances. but I'm even more frightened of ceding the federal government control/oversight of this issue. Probably would be a quick way to turn a cold into viral pneumonia ! >MW
     
  4. Axxe55

    Axxe55 The Apocalypse Is Coming.....

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    Balota, i agree with you 100%! seems as the states are the ones infringing our Constitutional rights. a person should be afforded the right to defend themselves, regardless of what stateline they happen to cross. what i can't understand is how any state can infringe on our constitutional right to own and bear a firearm. IMO, i believe just as you do, any law imposed by any state that infringes our rights is unconstitutional.
     
  5. rjd3282

    rjd3282 New Member

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    I don't go to those states. Problem solved. I live in Ohio if I go west I drive around Illinois. Won't go to New York or kommiefornia or pretty much most of the north eastern sea board. They want to violate my rights then they don't get any of my money. There is only a few of these totally ridiculous places so it isn't that tough to avoid them.
     
  6. Doc3402

    Doc3402 New Member

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    Guess again.

    Tenth Amendment
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


    This is what bugs me about the my way or the highway crowd concerning the 2nd amendment. The 2nd amendment did give us the right to keep and bear arms, but since it doesn't specifically address how we do it, it is left up to the states.

    Florida allows me to carry concealed providing I pay a fee and meet the requirements. Florida does not allow me to open carry under most circumstances. I am very grateful for what I have, and I don't feel my rights have been infringed under the Bill of Rights. I bear arms on a daily basis. Who cares if I have to do it under the guidelines the people approved?
     
  7. bkt

    bkt New Member

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    Read your history and look up incorporation (in the context of the Bill of Rights). The BoR applied originally to the federal government, not state governments.
     
  8. rjd3282

    rjd3282 New Member

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    Florida allows you? The second amendment says it is your natural right and the government shall not infringe. You feel grateful because you have to pay a fee to exercise your rights. What if they charged you a fee so you could speak freely how would you "FEEL" about that? Maybe you should stop feeling and start thinking.
     
  9. Doc3402

    Doc3402 New Member

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    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.

    Your free speech argument is flawed, mainly because the 1st amendment is much more specific than the second. Does the 2nd amendment specify firearms, or arms? For all we know the 2nd was drafted referring to pikes and muzzle loading long arms as commonly issued to militia troops and was never intended to include concealable weapons.

    Under the 10th amendment subjects not specifically covered in other sections of the Bill of Rights are left up to the states. The 2nd amendment does not specify type of arms, manner of carry, or even whether or not the arms are allowed to expel a projectile. All it says is we have the right to bear arms, which could easily be construed to only include long guns and big sticks.

    The 2nd amendment is unbelievably vague, and this is what has led to all the arguments, legal battles, and confusion. It took more than 200 years for the SCOTUS to decide that no municipality had the right to ban any type of firearm approved for civilian ownership. Are you beginning to see why I'm grateful yet? Since the 10th amendment gives the decisions not covered in other amendments to the states and to the people this whole thing could have easily gone the other way.

    Am I grateful that Florida allows me as a law abiding citizen to carry a concealed firearm after paying a fee and proving proficiency? I said it before, and I'll say it again. Yes, I am. They certainly didn't have to. They could have put the limit at a 5 inch blade and I would still be bearing arms.
     
  10. bkt

    bkt New Member

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    Doc, you need to understand the BoR did not pertain to state legislation, only federal legislation. Some states DID have religious persecution in the past and it was technically legal if abhorrent.

    2A says the feds won't infringe on our rights to own arms (and by that, I take it to mean any and all arms) but 10A allows the states to do their own thing, including with regard to arms.

    Amendment I
    Guarantee against establishment of religion
    This provision has been incorporated against the states. See Everson v. Board of Education, 330 U.S. 1 (1947).

    Guarantee of free exercise of religion
    This provision has been incorporated against the states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

    Guarantee of freedom of speech
    This provision has been incorporated against the states. See Gitlow v. New York, 268 U.S. 652 (1925)(dicta).

    Guarantee of freedom of the press
    This provision has been incorporated against the states. See Near v. Minnesota, 283 U.S. 697 (1931).

    Guarantee of freedom of assembly
    This provision has been incorporated against the states. See DeJonge v. Oregon, 299 U.S. 353 (1937).

    Right to petition for redress of grievances
    Incorporation is suggested in Edwards v. South Carolina, 372 U.S. 229 (1963) and is essentially the basis of Romer v. Evans, 517 U.S. 620 (1996).

    Guarantee of freedom of expressive association
    This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama, and was at that time applied to the states.

    Amendment II
    Right to keep and bear arms
    This right has been incorporated against the states. See McDonald v. Chicago (2010). Because it is as recent as it is and the ruling was actually somewhat muddled (typical of this court), onerous state laws have not been successfully challenged and nullified. Specifically, the ruling limited the states to the same limits on the federal government. But we all understand that there are to be no limits imposed by the feds, yet there certainly are (NFA, GCA'68). So the notion of incorporation as 1A is incorporated is questionable at best.

    Is it right? No. Is it even legal? No.

    Amendment III
    Freedom from quartering of soldiers
    This provision has been incorporated against the states within the jurisdiction of the United States Court of Appeals for the Second Circuit, but has not been incorporated against the states elsewhere.

    In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of the United States.

    The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).

    Amendment IV
    Unreasonable search and seizure
    This right has been incorporated against the states by the Supreme Court's decision in Wolf v. Colorado, 338 U.S. 25 (1949)
    The remedy of exclusion of unlawfully seized evidence, the Exclusionary rule, has been incorporated against the states. See Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S. 25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).

    Warrant requirements
    The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S. 108 (1964).
    The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S. 23 (1963).

    Amendment V
    Right to indictment by a grand jury
    This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).

    Protection against double jeopardy
    This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).

    Constitutional privilege against self-incrimination
    This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S. 1 (1964).

    Protection against taking of private property without just compensation
    This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).

    Amendment VI
    Right to a speedy trial
    This right has been incorporated against the states. See Klopfer v. North Carolina, 386 U.S. 213 (1967).

    Right to a public trial
    This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).

    Right to trial by impartial jury
    This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968). However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. Williams v. Florida, 399 U.S. 78 (1970). If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

    Right to a jury selected from residents of the state and district where the crime occurred
    This right has not been incorporated against the states. See Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).

    Right to notice of accusations
    This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).

    Right to confront adverse witnesses
    This right has been incorporated against the states. See Pointer v. Texas, 380 U.S. 400 (1965).

    Right to compulsory process (subpoenas) to obtain witness testimony
    This right has been incorporated against the states. See Washington v. Texas, 388 U.S. 14 (1967).

    Right to assistance of counsel
    This right has been incorporated against the states. See Gideon v. Wainwright, 372 U.S. 335 (1963). In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.

    Amendment VII
    Right to jury trial in civil cases
    This right has been held not to be incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).

    Re-Examination Clause
    This clause has been applied to the states. See The Justices v. Murray, 76 U.S. 9 Wall. 274 (1869).

    Amendment VIII
    Protection against "excessive bail"
    This provision may have been incorporated against the states. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in McDonald footnote 12, citing Schilb.

    Protection against "excessive fines"
    This provision has not been incorporated.

    Protection against "cruel and unusual punishments"
    This provision has been incorporated against the states. See Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).
     
  11. fmj

    fmj New Member

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    OH STILL SUCKS!! You guys can carry all you want over here in the FREE state of IN. But I am damned if i carry concealed in OH.

    First off...the 2nd amendment is VERY clear! If you are having trouble understanding the 2nd...mayhaps some remedial english would be in order. The first deals with 5 rights whereas the 2nd deals with one specific right...RKBR!

    Secondly, you all must look to each states constitutions in this matter. Then balance that with the Fed. BOR. I know MI and IN have specific wording in their state constitutions addressing the 2nd amendment and the RKBR!
     
  12. rjd3282

    rjd3282 New Member

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    Sucks to be you. :D You can still carry open if you go to Ohio.
     
  13. Balota

    Balota ... but I used to play keyboards.

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    Oh dang. I have to wait till November before OK open carry applies.

    Oh and by the way, I never said it was my way or the highway. I didn't write 2A so it isn't "my way". It was written before there were highways (in the modern sense) so it isn't the "highway" either. It's the American way.

    When I travel from Oklahoma to another state (say Missouri, for example) I am still in America. My right to keep and bear arms isn't mine because I'm a resident of Oklahoma. It's mine because I'm an American. I shouldn't have to worry (as I would in Missouri) which county my car breaks down in.
     
  14. Doc3402

    Doc3402 New Member

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    The 2nd amendment is nowhere near specific on types of arms you are allowed to bear. That has been the basis of legal argument for decades. Heck, it wasn't until two or three decades ago that the decision was finally made on what constitutes the militia that is allowed to bear arms. Maybe I'm not the one that needs help with remedial reading. You seem to be reading things that aren't written.
     
  15. Doc3402

    Doc3402 New Member

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    That's exactly the point I am trying to make, but you did a better job of summing it up.

    Unfortunately the founding fathers didn't have the ability of foresight. For that reason many years of billable hours have been racked up trying to figure out what should be approved and what shouldn't. Fortunately cooler heads have prevailed and concealable flamethrowers and LAWs rockets have not become commonplace.

    They did give most civilians what they need to maintain an equality or slight advantage over what we are most likely to be defending ourselves against, and for that I am grateful. Imagine what could be happening in the name of national security. We've already lost a good deal of our 4th amendment protections. The 2nd amendment would be a piece of cake.
     
  16. bkt

    bkt New Member

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    The purpose of 2A was to ensure the military might of the nation rested with the people, not the government. Ergo, ALL arms were to be in the control of the people; whatever you wanted, you could have if you could afford it. And many people did own arms well beyond rifles and pistols.

    You're right that the courts have argued that because 2A is vague in regard to what "arms" means and they've said that some arms but not others meets the 2A obligation. But anyone with an ounce of honest reason in their head understands that precisely because it didn't get specific that it wasn't intended to be specific: people may own any arms. The framers chose their words extremely carefully.
     
  17. Balota

    Balota ... but I used to play keyboards.

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    Very well said. Only lawyers think it takes a lot of words to be specific. And they only think that because it gives them more words to reinterpret later into loopholes.

    The purpose of 2A is to ensure "the security of a free state". Does anyone really believe that smooth-bore muskets and cutlasses would be sufficient to that purpose today? Then why would anyone try to interpret it that way? To meet the clearly declared purpose, the people would need the right to keep and bear the most effective modern arms.

    In the modern era, concealed carry handguns are provably effective at deterring violent crime. Such crime is, by any reasonable standard, a threat to the security of a free state. Thus, 2A can be understood in a simple direct way to protect concealed carry.

    This is only hard to understand if you just want to argue (for whatever reason).
     
  18. Balota

    Balota ... but I used to play keyboards.

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    The basis of legal argument for decades has been the desire on the part of the anti-gun lobby to create confusion. 2A is not specific precisely because it wanted to be forward-looking and allow ANY arms.

    Militia is and has always been intended to describe the function of the general population that was used during the Revolutionary War. It wasn't until two or three decades ago that the anti-gun lobby started using their (deliberate) lack of understanding as the basis for their empty arguments.

    Maybe you are the one that needs help with remedial reading. Actually we're the ones who are NOT reading things that are written ... we aren't reading anti-gun propaganda as though it was the BoR.
     
  19. bkt

    bkt New Member

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    I think maybe what Doc is saying is that because 2A can be interpreted as vague, that it opens the door to limitations. It's vague on purpose, and it's NOT to limit the arms people may own; it's vague to allow for people to own arms not invented at the time 2A was written.

    But because others have deliberately misinterpreted the vague nature of 2A as a loophole to establish limits - "Your honor, do you really think the Founders thought it wise to let just anyone own a nuclear weapon?" - that the subjective idea of "reasonable" crept into the argument. What arms are "reasonable" for people to own? What "reasonable" limits can be put on the rights of the people to keep and bear arms? Once subjective interpretation is on the table, all bets are off. The only thing you can count on is that our rights will be trimmed big-time.

    The fact is, all the armaments the federal government controls - nukes, carrier groups, fighters, missiles, etc. - could be and arguably should be tended securely and efficiently by the people in the context of militias.

    What the Framers intended is certainly not what has come to pass.
     
  20. fmj

    fmj New Member

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    To add to this.... if i may..i am not nearly as learned or skilled with words as Sir BKT

    If one were to delve into the founders writings, one would find that the founders were against the idea of a standing army.

    Hence the need for militia AND the UNLIMITED RKBA...bringing us back to the point BKT is making. I believe.