The Supremes

[JimmyJames 12271]

47 minutes ago, NotActuallyALonghorn said:

Is it though? The founding fathers were almost certainly aware of developments being made in repeating firearms and knew that the technology would improve. If they intended only for muskets, longrifles, and fowling pieces  to be protected by the second amendment they would surely have specified that. There is a pretty impressive list of flintlock repeaters and at least one completely new technology that dates back to the founding of our nation, some even going back to the mid seventeenth century.

The Kalthoff repeater was a type of repeating firearm that was designed by members of the Kalthoff family around 1630, and became the first repeating firearm to be brought into military service. At least nineteen gunsmiths are known to have made weapons following the Kalthoff design. Some early Kalthoff guns were wheellocks, but the rest were flintlocks. The capacity varied between 5 and 30 rounds, depending on the style of the magazines. There were two major variations in it's mechanism, but both could readied to fire again in just a couple of seconds. They were expensive to make and maintain, but founders such as Benjamin Franklin and Thomas Jefferson likely knew of them because of their interest in inventions and technology.

The Lorenzoni system dates back to the mid seventeenth century and used a different mechanism, but still operated by lever. At least one American gunsmith, John Cookson, is believed to have made guns of this type. He advertised repeating flintlocks that could fire nine shots in the Boston Gazette in 1756. He also has the same name as a contemporary London gunsmith who is known to have made guns utilizing this mechanism. Historians believe they were related.

The Puckle gun, patented in 1718, was invented by James Puckle, a British inventor. It had a bore of 1.5 inches and utilized a removable revolving cylinder that held between 6 and eleven shots. During a demonstration, it was able to fire 63 shots in seven minutes during a driving rain storm. That a shot about every six and a half seconds, counting reloading time. An impressive feat, especially given the sensitivity of the guns of the day to the weather.

The Belton gun, was a gun that had the capacity to shoot eight rounds in eight, five, or three seconds of time. The Continental Congress actually placed an order for 100 of them in 1777, but cancelled it when his bid came back to high. It is believed that it used paper cartridges with a fuse system not unlike roman candles. The founders were clearly aware of this, since they tried to order them.

The Girardoni air rifle is believed to be the air rifle of Lewis and Clark fame. Anybody who has read Undaunted Courage should be familiar with it. It had a magazine capacity of 20 balls that could be fired as long as sufficient air pressure remained in it's reservoir. It saw service with the Austrian army from 1780 to around 1815. Whether or not the founders were aware of it at the time the second amendment was ratified is unclear, but Jefferson procured one before the 1803 Lewis and Clark expedition. He never gave any indication that he didn't consider it as acceptable under the Second Amendment.

The Nock gun was a multi barreled gun invented in England in 1779. It had vent holes linking the barrels so that all of them would fire at once. The Royal Navy purchased 500 of them in 1780.

The Chambers swivel gun was similar to the Nock gun in that it had several barrels, however it could fire between 175 and 220 rounds in rapid succession, roman candle style. Many people consider this the first machine gun. The founding fathers tested it at Alexander Hamilton's estate and it saw naval service during the War of 1812.

 

So, to say that the founders didn't anticipate firearms technology improving and only intended the Second Amendment to protect muskets, longrifles, and shotguns in use at the time ignores much of history.

An originalist interpretation of the constitution would ban all assault rifles. At the time the didn’t exist. Otherwise it renders the militia clause superfluous, which cannot be the case.

You see only want you want to see.

[TwiceHorn 31679]

30 minutes ago, DDD Dad said:

Ok fine. Now explain the Heller court’s disregard for the first clause of the amendment.

I don't see how you can say it disregarded it.

You may not like the interpretation, but the vast, vast majority of the opinion is spent explaining the context and meaning of the prefatory clause.

In any event, I think it's a linguistic stretch to find a meaningful limitation in the prefatory clause.

[JimmyJames 12271]

1 minute ago, TwiceHorn said:

I don't see how you can say it disregarded it.

You may not like the interpretation, but the vast, vast majority of the opinion is spent explaining the context and meaning of the prefatory clause.

In any event, I think it's a linguistic stretch to find a meaningful limitation in the prefatory clause.

Heller ignores the clause. Why do you think it took 200 plus years to figure that out? 

[TwiceHorn 31679]

Just now, JimmyJames said:

Heller ignores the clause. Why do you think it took 200 plus years to figure that out? 

Not sure what you're saying.  There have been very few cases on the Second Amendment until recently.  Probably because hardly anyone questioned the right of the people to keep and bear arms.

I'm not super pro Second Amendment.  But I think the militia argument is wishcasting.  

[JimmyJames 12271]

1 minute ago, TwiceHorn said:

Not sure what you're saying.  There have been very few cases on the Second Amendment until recently.  Probably because hardly anyone questioned the right of the people to keep and bear arms.

I'm not super pro Second Amendment.  But I think the militia argument is wishcasting.  

Maybe because in the past kids weren’t shooting up schools nobody bothered?  
 

I seem to recall plenty of limited exceptions to the first amendment. 

[JimmyJames 12271]

I suppose let’s just exercise the clause out since it’s totally meaningless 

[TwiceHorn 31679]

5 minutes ago, JimmyJames said:

Maybe because in the past kids weren’t shooting up schools nobody bothered?  
 

I seem to recall plenty of limited exceptions to the first amendment. 

And Heller doesn't forbid gun control, just outright bans.

 

[JimmyJames 12271]

1 minute ago, TwiceHorn said:

And Heller doesn't forbid gun control, just outright bans.

 

For now.

[TwiceHorn 31679]

Just now, JimmyJames said:

I suppose let’s just exercise the clause out since it’s totally meaningless 

It's not totally meaningless.  It's just not a restriction on the pretty plainly operative language of the amendment.

Had the authors wanted to restrict it, the could easily have done so with plainer language.

[JimmyJames 12271]

Just now, TwiceHorn said:

It's not totally meaningless.  It's just not a restriction on the pretty plainly operative language of the amendment.

Had the authors wanted to restrict it, the could easily have done so with plainer language.

I mean are you that ignorant on where this is ultimately heading? Baby steps. 

[TwiceHorn 31679]

5 minutes ago, JimmyJames said:

I mean are you that ignorant on where this is ultimately heading? Baby steps. 

Well, to use your example, there are limitations on the First Amendment and it has no prefatory clause.

It may head that way, it may not.  I'm not sure the country will survive that long, anyway.

[JimmyJames 12271]

Just now, TwiceHorn said:

Well, to use your example, there are limitations on the First Amendment and it has no prefatory clause.

It may head that way, it may not.  I'm not sure the country will survive that long, anyway.

Well I’m gonna side on the one that keeps it intact. 
 

And no prefatory clause needed. 

[JimmyJames 12271]

George Washington defeated the British with his AK. Along the fellow patriots EZE and Yeller. 

[NotActuallyALonghorn 4980]

1 hour ago, DDD Dad said:

Ok fine. Now explain the Heller court’s disregard for the first clause of the amendment.

I explained it previously,  but I will do again. There was no disregard  the Militia Act of 1792 pretty much made every able bodied male part of the unorganized militia. They were required to supply their own arms in the event that the militia was called up. Essentially, they expected white male folks to be able to at least be basically proficient with firearms in the event that they had to raise a milita. This happened during the whiskey rebellion. They actually had to draft people because they didn't get enough volunteers. If the predatory clause had the meaning that so many wish to apply it to, history would paint quite a different picture.

30 minutes ago, JimmyJames said:

An originalist interpretation of the constitution would ban all assault rifles. At the time the didn’t exist. Otherwise it renders the militia clause superfluous, which cannot be the case.

You see only want you want to see.

 Are you dense? Do you seriously think that the founding fathers did not anticipate that firearms technology would improve? They were in the midst of the industrial revolution and technology was improving anywhere they could turn their heads to. But yes, they expected a total stalemate on technology involving gaining an advantage in warfare, something which had a much realer meaning to them than it does to us today.

[workswithseed 2139]

I know is Washington didn't care that ships with canons ran by kids killed other kids.

[JimmyJames 12271]

3 minutes ago, NotActuallyALonghorn said:

I explained it previously,  but I will do again. There was no disregard  the Militia Act of 1792 pretty much made every able bodied male part of the unorganized militia. They were required to supply their own arms in the event that the militia was called up. Essentially, they expected white male folks to be able to at least be basically proficient with firearms in the event that they had to raise a milita. This happened during the whiskey rebellion. They actually had to draft people because they didn't get enough volunteers. If the predatory clause had the meaning that so many wish to apply it to, history would paint quite a different picture.

 Are you dense? Do you seriously think that the founding fathers did not anticipate that firearms technology would improve? They were in the midst of the industrial revolution and technology was improving anywhere they could turn their heads to. But yes, they expected a total stalemate on technology involving gaining an advantage in warfare, something which had a much realer meaning to them than it does to us today.

Warfare has nothing to do with the second amendment unless you supported trump and his attempted coup which you obviously support.

So fuck you. 
 

Traitors  must hang. 

[NotActuallyALonghorn 4980]

You are at odds with your own partisans, not me. And if you think I have in any way supported any of Trumps actions on January 6th you can go fuck yourself with a bat wrapped with rusty barbed wire. I have made my feelings on that clear. At the very least every person who breached the Capitol should have been detained until we determined they were not a foreign agent. 

[elfenix 34385]

heller answered a question that the founding generation wouldn't have thought to ask, and answered it in a way such that it completely gutted why the second amendment was necessary.  so, good job scalia. 

[workswithseed 2139]

3 hours ago, JimmyJames said:

Warfare has nothing to do with the second amendment unless you supported trump and his attempted coup which you obviously support.

So fuck you. 
 

Traitors  must hang. 

Fuck you, fascist.

[JimmyJames 12271]

7 hours ago, NotActuallyALonghorn said:

You are at odds with your own partisans, not me. And if you think I have in any way supported any of Trumps actions on January 6th you can go fuck yourself with a bat wrapped with rusty barbed wire. I have made my feelings on that clear. At the very least every person who breached the Capitol should have been detained until we determined they were not a foreign agent. 

What so we have moved on from it was supposedly antifa and now it was foreign agents?

Moron. It was Trump supporters like yourself. Own it. Those are your brethren in arms. 

[NotActuallyALonghorn 4980]

I'll try and you smaller words this time so you can understand. Trump is a bad man. There were people who were also bad. They wanted the bad man to stay the daddy of America, so they did bad things, like break in to the capital. It is possible there were other bad people with them who could work for bad countries and would have been able to steal things from the capital that we don't want them to have. But we don't know if there were people like that there because we let all of them go. That was a dumb thing to do.

[TwiceHorn 31679]

8 hours ago, elfenix said:

heller answered a question that the founding generation wouldn't have thought to ask, and answered it in a way such that it completely gutted why the second amendment was necessary.  so, good job scalia. 

Wait, what?

Just from a purely constitutional angle, if the goal was to arm civilians for military service, only with the weapons and under the conditions specified by the government in some "Swiss-style" regime, why even have a Second Amendment?

[Born to Run 6582]

George Washington defeated the British with his AK. Along the fellow patriots EZE and Yeller. 

He was also into aliens man, which explains the need for superior weaponry.

[elfenix 34385]

9 hours ago, NotActuallyALonghorn said:

he Militia Act of 1792 pretty much made every able bodied male part of the unorganized militia.

there's two things in this sentence that aren't true. 

[NotActuallyALonghorn 4980]

Quote

... each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside ...

So yeah, it didn't include slaves. They were incorporated later.

[elfenix 34385]

4 minutes ago, TwiceHorn said:

Wait, what?

Just from a purely constitutional angle, if the goal was to arm civilians for military service, only with the weapons and under the conditions specified by the government in some "Swiss-style" regime, why even have a Second Amendment?

scalia went so far as to claim that it's only an individual right, when the founding generation wouldn't have even thought to ask about an individual right.  it wouldn't even make sense in a world where all white males were required to participate.  and bring their own gun, because the nation was generally poor and there wasn't mass manufacturing or standardization so you literally couldn't issue everyone the same rifle anyway, so a swiss style regime would also be right out. 

 

[Incredulity 11686]

Not sure how or why Youtube fed this to me yesterday as I was wasting time before kids got home, ( it popped up as recommended after I watched a clip from Margin Call(underrated movie IMPO)).

Anyway it roped me in with Scalia and Breyer arguing originalism vs living constitution.  seems very applicable to the above posts.

 

[wildcat09 29453]

There's a lot of good recent scholarship on the Second Amendment and our history of gun laws.

Here's one article.

Here's another.

Anyone who is actually interested in the real history can read those and the other sources they cite. I think the TLDR is that it's complicated, but Scalia and the majority in Heller got the history very wrong in a way that conveniently favored their own political desires. 

[JimmyJames 12271]

1 hour ago, wildcat09 said:

There's a lot of good recent scholarship on the Second Amendment and our history of gun laws.

Here's one article.

Here's another.

Anyone who is actually interested in the real history can read those and the other sources they cite. I think the TLDR is that it's complicated, but Scalia and the majority in Heller got the history very wrong in a way that conveniently favored their own political desires. 

What’s fun (not really) is to apply their same arguments against Roe and apply them to their brand new second amendment interpretations.

The second amendment sat there for over two hundred years and was so uncontroversial that it never needed to be interpreted until the right wing lunatics got involved.
 

And they are not close to being done. They want a whole bunch of Kyles running around with assault rifles in the ready position, ready to claim them some self defense. 
 

Just watch what the Supreme Court will do next. It’s coming. 

[JimmyJames 12271]

“A well regulated Militia, being necessary to the security of a free State,”

Anyone know how to strike out language while posting on this site? It’s beyond my internet capability. I could bold it though. I know that much. 

[DDD Dad 14370]

15 minutes ago, JimmyJames said:

“A well regulated Militia, being necessary to the security of a free State,”

Anyone know how to strike out language while posting on this site? It’s beyond my internet capability. I could bold it though. I know that much. 

That's just throat clearing language.

[ s ] strike out text [ /s ] (take out spaces)

Edited December 17, 2021 by DDD Dad

[Longhorn_Fan68 33917]

Am I having a stroke? There's a button right there:
 

[DDD Dad 14370]

3 minutes ago, Longhorn_Fan68 said:

Am I having a stroke? There's a button right there:
 

Well yeah, there's that too.

[BHMCruiser 1818]

On 12/16/2021 at 10:39 AM, elfenix said:

this view is unconstitutional.  you'd think textualists would know that. 

Agreed. It ignores the Ninth Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

[BHMCruiser 1818]

On 12/16/2021 at 2:56 PM, TwiceHorn said:

I was re-reading Heller, and didn't get very far, but I wanted to point something out about Scalia, consistent with what I have said.

Early on in the opinion, he tosses this out:

That is pretty close to as counter-originalist as you can get.  He slides a lot of these nuggets into his opinions.

So an originalist would say the First Amendment does not protect email, television, etc, because those modalities did not exist at the time of the founding?

[Biff Tannen 45763]

Is this thread still on about the 2nd amendment?  We figure anything out yet?

[staboner 5015]

it follows the first one

[Bookman 4722]

On 12/17/2021 at 12:13 PM, JimmyJames said:

“A well regulated Militia, being necessary to the security of a free State,”

Anyone know how to strike out language while posting on this site? It’s beyond my internet capability. I could bold it though. I know that much. 

You mean to strike out that surplusage?

[wildcat09 29453]

My favorite thing about originalism is how today's originalism isn't even the original originalism. 

[Biff Tannen 45763]

23 minutes ago, wildcat09 said:

My favorite thing about originalism is how today's originalism isn't even the original originalism. 

It’s like Famous Ray’s, Original Ray’s, and Famous Original Ray’s. 

[BHMCruiser 1818]

5 hours ago, BHMCruiser said:

So an originalist would say the First Amendment does not protect email, television, etc, because those modalities did not exist at the time of the founding?

As in, Antonin Scalia, if he was being intellectually honest, would have thought the Air Force was unconstitutional?

[TwiceHorn 31679]

On 12/17/2021 at 9:46 AM, elfenix said:

scalia went so far as to claim that it's only an individual right, when the founding generation wouldn't have even thought to ask about an individual right.  it wouldn't even make sense in a world where all white males were required to participate.  and bring their own gun, because the nation was generally poor and there wasn't mass manufacturing or standardization so you literally couldn't issue everyone the same rifle anyway, so a swiss style regime would also be right out. 

 

Well, despite the prefatory clause, it says "the right of the people."

The Continental Army was a thing.  They purchased and supplied weapons for the troops.  But militias at the time typically brought their personal rifle or musket.

By Swiss-style, I didn't mean one single weapon, but one supplied by the government and used on its terms in preparation/anticipation for military service.

The point is, if they meant that bearing arms was intended only for even informal military service to the government, then the entire amendment is basically surplusage.  That could easily have been provided for in Article 1 or Article 2, or they didn't have to say anything at all.

I don't really know what to make of the prefatory clause.  It's linguistically bizarre.

[NotActuallyALonghorn 4980]

It's not bizarre in the least. It sets the context that was completely logical at the time. They felt they needed the ability to call up the militia from the common citizenry. In order for that militia to be well regulated, which meant well trained or something similar in the time, the right of the people to keep and bear arms was important. After all, a militia is not worth much if none of them have any familiarity with the weapons with which they are to serve. The whole debate over the prefatory clause is dumb. What we should be looking at is exactly what they meant by to keep and to bear.  The question really should be whether they meant that folks should generally go strapped wherever they go, especially in town.

[TwiceHorn 31679]

5 minutes ago, NotActuallyALonghorn said:

It's not bizarre in the least. It sets the context that was completely logical at the time. They felt they needed the ability to call up the militia from the common citizenry. In order for that militia to be well regulated, which meant well trained or something similar in the time, the right of the people to keep and bear arms was important. After all, a militia is not worth much if none of them have any familiarity with the weapons with which they are to serve. The whole debate over the prefatory clause is dumb. What we should be looking at is exactly what they meant by to keep and to bear.  The question really should be whether they meant that folks should generally go strapped wherever they go, especially in town.

Legislatively, it is bizarre. None of the other amendments have any prefatory or explanatory clause.

Linguistically, it is bizarre, because it has only the barest relationship to the rest of it.  It doesn't linguistically restrict anything, it doesn't linguistically amplify anything.  It just kind of sits there, confusing people.

There's no real reason for it.  It's like they started out to impose some restriction and then just ran out of gas.

[Bookman 4722]

2 hours ago, TwiceHorn said:

Legislatively, it is bizarre. None of the other amendments have any prefatory or explanatory clause.

Linguistically, it is bizarre, because it has only the barest relationship to the rest of it.  It doesn't linguistically restrict anything, it doesn't linguistically amplify anything.  It just kind of sits there, confusing people.

There's no real reason for it.  It's like they started out to impose some restriction and then just ran out of gas.

And yet should a textualist give it any meaning at all?

[wildcat09 29453]

The only way the 2nd really makes sense to me is that it wasn’t really meant to confer or protect an individual right, but a collective right of a state’s militia not to be disarmed by the federal government.

[JimmyJames 12271]

7 hours ago, TwiceHorn said:

Legislatively, it is bizarre. None of the other amendments have any prefatory or explanatory clause.

Linguistically, it is bizarre, because it has only the barest relationship to the rest of it.  It doesn't linguistically restrict anything, it doesn't linguistically amplify anything.  It just kind of sits there, confusing people.

There's no real reason for it.  It's like they started out to impose some restriction and then just ran out of gas.

I think the use of the word people as opposed to person in the fifth amendment meant it was a restriction on the federal government only to prevent it from banning weapons completely.
 

If the town of Big Whiskey wanted to ban firearms requiring you to surrender them to the proper authorities like little Bill there’s nothing in the constitution that prevents that and nobody ever thought it did until recently.
 

It’s why the radical gun nuts started with DC since it’s a federal enclave then expanded outward. At this point they’re about to just make shit up because it suits their policy goals. Just watch what comes next. 

Edited December 22, 2021 by JimmyJames

[Dnaguy 12328]

41 minutes ago, wildcat09 said:

The only way the 2nd really makes sense to me is that it wasn’t really meant to confer or protect an individual right, but a collective right of a state’s militia not to be disarmed by the federal government.

 

I'm not a lawyer or play one on TV either.

But this is how I've always seen it.

It's hard to divorce the current way we see the US than the one at the time... a collection of states who were trying to form a more perfect union. 

The British crown was shit. And out first attempt of a government was kind of shitty too. It had too much autonomy for each state. And that didn't really work.

So now we're going to try and make a more powerful federal government.... but we don't want it too powerful so that it can come down hard on a state.

It's always through the lens of a state, whom you are a citizen of, 

That original idea is dead. 

The civil war ended that.

When slavery died, so did the original idea of the US IMO.

Whatever we are doing now, whether it's called originalism or not is nothing of the kind.

We are making it up as we go along and using either way. 

True originalism will never work b/c the world is not the same as it was then.

The problems of today are not the same as they were then.

The system we have, however, is made so that we slowly careen to a crisis point to which we then fix the shit.

We just do it slower than most, but the system will be stressed, break, and hopefully not fully fall apart. 

But on the other end of it, the US will be fundamentally different.

Examples: Slavery, Great Depression, The 60's, etc.

[wildcat09 29453]

1 hour ago, JimmyJames said:

I think the use of the word people as opposed to person in the fifth amendment meant it was a restriction on the federal government only to prevent it from banning weapons completely.
 

If the town of Big Whiskey wanted to ban firearms requiring you to surrender them to the proper authorities like little Bill there’s nothing in the constitution that prevents that and nobody ever thought it did until recently.
 

It’s why the radical gun nuts started with DC since it’s a federal enclave then expanded outward. At this point they’re about to just make shit up because it suits their policy goals. Just watch what comes next. 

I don't know that "people" vs "person" should be construed to matter, really. The 4th amendment protects the right of the "people" to be secure in their persons, papers, etc. and we all consider that an individual right. 

This is another problem with originalism and textualism: they expect perfection from the people who wrote laws. Sometimes someone just got sloppy. 

[BHMCruiser 1818]

What are the other collective rights in the Bill of Rights?