What Sotomayor’s dancing missed—The Supreme Court on the right to self-defense

[TPaine7]

In her obligatory dancing, the probable next Justice of the United States seemed at a loss when asked if there was an individual right to self-defense. An individual right to self-defense was an “abstract” concept—“meaningless” out of a trial context, apparently.

Watch for yourself. http://www.youtube.com/watch?v=LlFPQeCVgrk

Besides allegedly not having a cogent personal opinion on the question, she couldn’t remember a case where the Supreme Court had addressed it.

Now I know she was under a lot of pressure just from being in that position, as well as the practical requirement to perjure herself to have a shot at the job—like every other Justice since Bork. But if she could dust off her law books and go all the way back to 2008, the Heller decision would reveal the truth. Of course the Supreme Court has spoken on this issue. Many times.

That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s RIGHT TO SELF-DEFENSE is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect AN INDIVIDUAL RIGHT TO USE ARMS FOR SELF-DEFENSE.

Heller, p 30. (http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf)

St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone

143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “THIS MAY BE CONSIDERED AS THE TRUE PALLADIUM OF LIBERTY . . . . THE RIGHT TO SELF-DEFENCE IS THE FIRST LAW OF NATURE: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

Heller, p 33

ANTISLAVERY ADVOCATES ROUTINELY INVOKED THE RIGHT TO BEAR ARMS FOR SELF-DEFENSE. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “THE RIGHT TO KEEP AND BEAR ARMS, ALSO IMPLIES THE RIGHT TO USE THEM IF NECESSARY IN SELF DEFENCE; WITHOUT THIS RIGHT TO USE THE GUARANTY WOULD HAVE HARDLY BEEN WORTH THE PAPER IT CONSUMED.” A Treatise on the Unconstitutionality of American Slavery 117–118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”).

Heller, p 36

More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring A RIGHT “OF ALL THE FREE CITIZENS OF THE STATE TO KEEP AND BEAR ARMS FOR THEIR DEFENCE,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense…

Heller, p 41

SIMILAR DISCUSSION ATTENDED THE PASSAGE OF THE CIVIL RIGHTS ACT OF 1871 AND THE FOURTEENTH AMENDMENT. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, SENATOR POMEROY DESCRIBED AS ONE OF THE THREE “INDISPENSABLE” “SAFEGUARDS OF LIBERTY . . . UNDER THE CONSTITUTION” A MAN’S “RIGHT TO BEAR ARMS FOR THE DEFENSE OF HIMSELF AND FAMILY AND HIS HOMESTEAD.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “s citizens of the United States have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866).

IT WAS PLAINLY THE UNDERSTANDING IN THE POST-CIVIL WAR CONGRESS THAT THE SECOND AMENDMENT PROTECTED AN INDIVIDUAL RIGHT TO USE ARMS FOR SELF-DEFENSE.

Heller, p 43-44

As the quotations earlier in this opinion demonstrate, THE INHERENT RIGHT OF SELF-DEFENSE HAS BEEN CENTRAL TO THE SECOND AMENDMENT RIGHT.

Heller, p 56

Nothing about those fire-safety laws undermines our analysis; THEY DO NOT REMOTELY BURDEN THE RIGHT OF SELF-DEFENSE as much as an absolute ban on handguns.

Heller, p 60

And now the dissent—the losing side (all 4 remaining justices):

Specifically, there is no indication that the Framers of the Amendment intended to enshrine THE COMMON-LAW RIGHT OF SELF-DEFENSE in the Constitution.

Stephens Dissent , p 2

They admit the right to self-defense exists (not the "self-defense excuse," mind you), they just don’t see it as having been enshrined in the Constitution. So according to the unanimous Supreme Court—all nine Justices—there is a right to self-defense. It is not “abstract” or inchoate. It is real. (For that matter it would still be real if they reversed themselves tomorrow, but that’s another story.)

Nor is the current Court the first to recognize the ancient, obvious and very fundamental right to self-defense ( http://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htmhttp://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htm ).

I really hope Sotomayor’s performance was a reflection of her ambition more than of her integrity or intellect. Sure, she may hate the idea of armed self-defense (or even of unarmed self-defense) as many do here. But surely she has read the Heller decision?

It would be better for America not to make Supreme Court candidates testify. The Senate could simply call character witnesses, co-workers, and others who know the candidates to testify. And review candidate legal writings and speeches.

Mandatory perjury prior to ascending to the High Court isn’t the greatest policy.

[tularetom]

1. The Supreme Court rules on a huge spectrum of issues

So what if she couldn't recall Heller?

And if she disagrees with me on 2nd Amendment matters, you know what? I really don't give a flying fuck. She does appear to agree with me on a whole shitload of other things which to me are equally important.

There is a constitution and twenty six other amendments besides the 2nd. At least in my constitution. I don't know about yours.

[eqfan592]

4. I see, so you are willing...

...to sacrifice some rights in order to protect others? This mentality will eventually leave you with no rights, period. Also, you're statement states one one hand that you see these other rights as "equally important" as the 2nd, yet on the other hand you state that you don't give "a flying fuck" about her view on the 2nd. The inference can then be made that you don't give "a flying fuck" about her view on any of them, though I do not believe that was the intended purpose of your statement.

We must be careful not to fall into any sort of mindset where we refuse to question and call out those who are in positions of power in the government, simply because they are on "our" side on most issues.

[tularetom]

7. If I reserved my support for those who agreed with me on every issue

I would be hard pressed to find anyone to support, including my wife.

And where did you get the brilliant idea that I was willing to "sacrifice some rights in order to protect others"?

All I said was I may not agree with Sotomayor's position on the 2nd amendment. I didn't say I was willing to sacrifice my rights under that amendment just because I agreed with her position on other amendments. And as far as I now, she doesn't oppose repeal of the 2nd. So where's the sacrifice.

My post was just a few sentences long. Yet you managed to read volumes into it regarding my intent and my "mindset". I wish I had that kind of skill.

[eqfan592]

10. A few sentances can say volumes...

...You did not explicitly state that you were willing to sacrifice some rights to protect others. But you did state that you did not "give a flying fuck" about her views when it came to a fundamental right, the implication being that you were willing to sacrifice this right in the name of the others.

Now if you MEANT to state that you may not agree with her on everything, but you will still support her and simply challenge her when it comes to those issues you disagree on, then THAT is something different entirely, and it a stance I can support. That is not, however, what you stated in your first post.

As for you having "that kind of skill" you managed to read into my post that you should only support people who agree with you 100%. In fact, I never said anything of the sort, nor did I even imply such. I even implied that I was agreeable with the idea of supporting those who we do not agree with 100% of the time, only that we must be careful not to lose are willingness to challenge them when it comes to those issues we do not agree with them on simply because they are on "our" side.

[iverglas]

18. "I see, so you are willing...

...to sacrifice some rights in order to protect others? This mentality will eventually leave you with no rights, period."


http://www.scooterbbs.com/archive/anything/5004/0.html (with my emphases)

Let us consider a few examples of the phenomena I am talking about. This message was in response to my essay on the hate mail I've been getting:

so, let's see. If we disagree with your spin and erroneous conclusions, we are sending "hate mail"? my god, what hypocracy, what insular thinking (and frnakly, I worry about using that last word)

My problem with a passage like this, I repeat, is not exactly that it is nasty, but that it is nasty in a stereotyped and cultivated way. It is part of a technology of nastiness.

Let's consider how it works. Start with the first sentence. In the jargon, expressions like "let me see if I've got this straight" are used to preface a distorted paraphrase of an opponent's words. This is a matter of routine; it's part of what a linguist would call the "phasal lexicon" of the new jargon. In fact, "so, let's see" does two kinds of work: it prefaces a distortion of what I said, and it pretends that the distortion is what I said. It twists reason, and projects that twisting onto me. I, of course, never said that everyone who disagrees with me is sending hate mail. Never said it, never meant it, never implied it, never presupposed it, never thought it.

And this is not just any distortion. It's a type that is also very common in the new jargon: someone sends me hate mail that expresses disagreement with my views, and so rather than acknowledge the hateful elements of that mail, my correspondent here pretends that I have associated all disagreement with hate. Underneath, in other words, it's a matter of associationism. Associationism deletes all of logical connections among ideas, and instead works to create certain strategically chosen associations among concepts, and to break others. The first step, very often, is to project the very fact of engaging in associationism into one's opponent: by writing about messages of disagreement that were hateful, it is said, "they" are the ones who associated disagreement with hate.

Notice, too, the rhetorical question ("If we disagree with your spin and erroneous conclusions, we are sending 'hate mail'?"). This is also common. It's a way of making an obviously false assertion -- in this case, the assertion that I have said that everyone who disagrees with me has ispo facto sent hate mail -- without admitting to it. Then the "my god", etc, which assumes an answer to the rhetorical question, as if the rhetorical question's proffered paraphrase were something that I said. Then, of course, the flood of nasty language.

I just find it sums this place up so nicely sometimes.

[TPaine7]

5. Bullshit

"So what if she couldn't recall Heller?"

That's funny. And sad.

She was briefed and drilled and questioned on Heller. She read it cover to cover. Recently. That is absolutely certain. It was one of the 'hot' issues she and her handlers were expecting question on. You can bet your life on it.

Your question is the intellectual equivalent of "what if she couldn't recall Roe v. Wade."

It's technically possible that she couldn't recall Heller, true. It's also technically possible that she couldn't recall her name.

[tularetom]

9. I don't give a rat's ass if she read Heller or blew her nose on it

I don't even care if she had to do a "dance" about it in order to get confirmed.

Heller is not a litmus test for me. Neither is Roe v. Wade.

Grow up. You aren't going to get a supreme court justice who agrees with you on every issue. It's unrealistic to expect it.

As far as I know she doesn't support repeal of the 2nd Amendment.

[eqfan592]

15. You say he should "grow up"...

...because he happens to care about a SC justice nominees stance on one of the most important and controversial rulings of this decade? A ruling on an issue that will almost certainly come up again in the SC? And then you go so far as to say the same about Roe v. Wade?

I don't believe anybody here has claimed a need to have a supreme court justice who they agree with 100% of the time, or that such a thing is even a likely reality for most of us. This does not mean we should not call to task those we support when they "dance around" issues that are important to us. But in this case, especially when it's an issue that is of such prominence in recent history.

Tell me, are there any other ground breaking rulings that you hold in such contempt as to say you don't care if a future SC justice has even read them, much less understand them? Do you have any sort of minimum when it comes to a nominees knowledge level of the justice system and court rulings in general?

[tularetom]

23. L O O K - E I N S T E I N - I' M - G O N N A - S A Y - T H I S -R E A L - S L O W

I'm happy with the choice of Sotomayor. I don't care if she supports Heller or not.

Furthermore I'm a very literal person. I do not imply shit. It's much easier for me to come out and say it.

And I don't infer. (You might wanna look that up). I can only go by what you say.

I'd love to stay and chat but I have drywall to hang.

[eqfan592]

27. Do not blame me...

...for your inability to express yourself clearly. Perhaps you would be helped by putting more thought into what you are saying before posting it on an open forum. And yes, you do in fact "infer." You did it several times on this very thread. Though your inference (that some of us would only support a candidate we agreed with 100%) was not very logically sound based off of the information on hand.

[AtheistCrusader]

21. She also doesn't support incorporation of the 2nd to the states.

Which would be like not incorporating the 1st, or the 5th. I consider that unacceptable, and a great litmus test.

[eqfan592]

26. Atheist, not that I'm doubting you at all...

..but do you have a quick link for that?

[AtheistCrusader]

30. She voted with the majority in Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09

Finding that the 2nd does not confer an individual right, the opposite of Heller vs. DC.


I must make one apology and correction, she has not, in anything I can cite, stated she does not support incorporation of the 2nd. Perhaps she DOES support it, and rejecting Maloney to send it on up to the Supremes is a roundabout method of getting the SC to incorporate the 2nd.

I doubt it, but the possibility exists I guess.

[eqfan592]

32. Gotcha. Thanks for the info :) (nt)

[X_Digger]

54. Circuit court judges really don't have that latitude..

.. much as I enjoy the schism between the second circuit and the ninth, which is almost certainly going to lead to the SCOTUS granting certiorari to hear the issue, it was on shaky ground.

Sotomayor followed precedent (both from previous circuit decisions as well as SCOTUS) which is admirable for a circuit court judge.

[TPaine7]

31. You seem angry

But what you say seems to have nothing to do with what I said:

Heller is not a litmus test for me. Neither is Roe v. Wade.

I didn't say either was for me, either. What's your point here, besides baring your soul?

Grow up.

Gratuitous insult? Free floating rage?

You aren't going to get a supreme court justice who agrees with you on every issue.

Wow. Really? Did you know there are nine Justices on the Court? Did you know only one Justice has also been President--Taft? This is fun!!!

It's unrealistic to expect it.

I know that one, too. But why do you seem to be angry? Trivia usually is pursued for pleasure--it's not usually associated with anger.

[AtheistCrusader]

16. How could she not recall Heller when she just ruled that Heller does not apply to the States in Feb?

A non-trivial ruling, just a few months ago.

[gorfle]

20. Couldn't recall Heller?

So what if she couldn't recall Heller?

It's only the most sweeping Supreme Court ruling on the second amendment in 70 years. Surely a Supreme Court Justice candidate would be at least somewhat familiar with it.

[iverglas]

2. THE RIGHT TO SELF-DEFENCE IS THE FIRST LAW OF NATURE

:rofl:

[TPaine7]

8. Your ignorance is profound, iverglas...

and not just your ignorance of American law.

Did you notice that none of the Justices--of any political stripe or flavor--failed to state that there is a right to self-defense? A "right," not an "excuse" as you so eagerly proclaim to anyone who will listen to your profound ignorance?

I bet that your ignorance of Canadian law is profound as well, especially once you get one inch outside of your specialty. Apparently, no one here has cared enough about irrelevant, backwards laws to check--I know I don't.

I guess you're just lucky, eh?

Laugh it up!

[iverglas]

13. my "specialty"?

I bet that your ignorance of Canadian law is profound as well, especially once you get one inch outside of your specialty.

What might that be?

[TPaine7]

24. Bullshit...

Everybody knows that.

B-)

[iverglas]

14. "American law"

My dear fellow, the subject, as chosen by you, was the Laws of Nature.

Try to stick to it, hm?

If your "American law" is based on the Laws of Nature, just say so!

:rofl:

[TPaine7]

35. Do you have the tinest shred of honesty, decency, or integrity, iverglas?

Are you some kind of masochist? A hired clown, perhaps?

My dear fellow, the subject, as chosen by you, was the Laws of Nature.

Try to stick to it, hm?

Why would you say something so obviously false? So transparent? The subject I chose was not "the Laws of Nature" nor do you have any marginally plausible reason to think such nonsense. Do you get some kind of thrill out of having your head handed to you--repeatedly?

And then to cap the obvious, transparent, reeking pile of excrement with the cherry of condescension--"Try to stick to it, hm?" is obscenely stupid.

When I first started posting here, I really wondered about your motivations. This has revised my curiosity.What motivates someone to tell such bald untruths and to condescend while doing so?

Show some sane person who loves you this thread, then follow their advice, iverglas.

I'm serious.

(If no one loves you, ask an honest anti-gun person on this site to advise you. I know that's almost an oxymoron, but talk to someone.)

[iverglas]

42. huh

St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone

143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “THIS MAY BE CONSIDERED AS THE TRUE PALLADIUM OF LIBERTY . . . . THE RIGHT TO SELF-DEFENCE IS THE FIRST LAW OF NATURE: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

Heller, p 33

That wasn't in your post, and you weren't citing it with approval? (I mean, citing Scalia J. with approval ... ew ... but your choice.)

You stuck your thumb into Heller looking for a statement that looked something like "there is a right to self-defence", by a member of the bench in that decision, and you came up with that (and what a good boy are you!).

And I laughed, and I'm still laughing.

Authority? The Laws of Nature?

:rofl:

[AtheistCrusader]

36. I like where this thread is going.

Madison would have disagreed, as I do as well, but Jefferson penned:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

[jody]

41. Jefferson also said "Laws that forbid the carrying of arms... disarm only those who are neither

inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

[iverglas]

44. and don't forget Jefferson's finest bon mot

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks."


I wonder how many of you all spend your time lying around watching games played with the ball, let alone playing them.

I'll bet he'd have thought that stamped a whole lot of character on yer minds.

:rofl:

Games played with a ball ... the Laws of Nature ... guns ... some people do like to pick and choose their old rich dead white guys' instructions, don't they?

[AtheistCrusader]

47. I like volleyball

If i'm actually playing. I don't watch any sports.

Might be an interesting survey for Gungeon denizens.

[iverglas]

43. okay

So?

[AtheistCrusader]

46. No point.

I thought you might find it funny. I do.

Because it's total crap. A 'natural law' is the speed of light.
Self defense is animal behavior. Not exactly a 'natural law'. We claim that right for ourselves. (Some humans, actually will choose not to) It's something we do. Like breathing. No natural law actually says you HAVE to breath. It's just something you do if you want to survive.

[iverglas]

49. ah!

But of course. I forgot your name. ;)

Correct on all points!

"It's something we do".

[AtheistCrusader]

52. Unfortunately some of my countryfellows

believe that the rights enumerated in the Declaration or the Bill of Rights, etc, are actually natural laws handed from on high.

I'm working on it, but ... Uphill battle. My favorite is that 'this country was founded on christian principles', yet the declaration contains Deist, not Christian language. I think Jefferson was an excellent troll.


I use the term 'right' loosely myself. I believe you have a 'right' to live, if you can. So draw that next breath. Consume food. Sleep. Whatever you need to survive, do it, if you can. If that means fighting back because you were attacked, do so. Someday, we all lose this fight, but do what you need, while you can. So in this case, 'right' is fairly meaningless. You just 'do'. Anything else is a social construct of 'right' which needs to be enumerated in human law.

[Euromutt]

55. I largely agree with you

The notion that the right enumerated in the BoR are divinely inspired (even couched in terms of "Natural Law") is not supported by the evidence. There was no theology in common currency in the nascent United States that would have countenanced freedom of religion, for a start. Moreover, it doesn't make sense to my mind that any given Supreme Being--assuming that that particular being existed--would require its worshipers to respect the right of others to worship other, non-existent deities. Clearly, freedom of religion is a human construct; it's an acknowledgment that a cohesive society is not served by letting its various members persecute each others as infidels and heretics. We don't want other people forcibly imposing their religious beliefs on us, so it's only fair we return the favor.

And that's the basis of all human rights, really: the old notion of "do not unto others as you would not have them do unto you." When there is a sufficiently large consensus that there is something that we would not want done unto ourselves, the freedom from that something becomes a human right. Occam's Razor; no divine inspiration or "Natural Law" required.

[eqfan592]

58. Hmmm, interesting points.

This will require further research (talking on my part here), though I don't think this ultimately changes the actual landscape of the debate much either way. I could be wrong, however.

[iverglas]

59. the magic word

When there is a sufficiently large consensus that there is something that we would not want done unto ourselves, the freedom from that something becomes a human right. Occam's Razor; no divine inspiration or "Natural Law" required.

Of course it applies to rights as well as freedoms: equality rights - the right to equal treatment in the public sphere - for instance.

If only we could just reach consensus on that. ;) No gods, no kings, etc.

Without it, we just keep having to have some final authority to appeal to.

[eqfan592]

3. WELL DONE, SIR!

Very impressive, and conclusive, post! I also agree with you when it comes to the way the Senate currently goes about interviewing SC candidates.

Thank you!

:toast:

[iverglas]

6. you sure talk big

... and a lot ... but I'm failing to see any money where your mouth is.


Now I know she was under a lot of pressure just from being in that position, as well as the practical requirement to perjure herself to have a shot at the job—like every other Justice since Bork.

... Mandatory perjury prior to ascending to the High Court isn’t the greatest policy.


And of course you're such a sneaky clever clogs. I'm going to give you an opportunity to speak plainly.

Did Sotomayor commit perjury in her testimony at the Committee?



btw, isn't gravity kinda the first law of nature? Or maybe something having to do with mass and energy ...

:rofl:

Sorry. People quoting centuries-old nonsense like that always affects me this way.

http://www.constitution.org/tb/tb-0000.htm

BLACKSTONE'S COMMENTARIES:
WITH
NOTES OF REFERENCE,
TO
THE CONSTITUTION AND LAWS,
OF THE
FEDERAL GOVERNMENT OF THE UNITED STATES;
AND OF THE
COMMONWEALTH OF VIRGINIA.
IN FIVE VOLUMES.
WITH AN APPENDIX TO EACH VOLUME,
CONTAINING
SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY
TO FORM A CONNECTED
VIEW OF THE LAWS OF VIRGINIA,
AS A MEMBER OF THE FEDERAL UNION.
BY ST. GEORGE TUCKER,
PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND
ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.
PHILADELPHIA:
PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,
NO. 17, SOUTH SECOND-STREET.
ROBERT CARR, PRINTER.
1803.

Let me know what authority you might quote from 1803 on, oh, evolution. Or, hey, slavery!

:rofl:

[TPaine7]

19. Educate yourself, iverglas, if you can.

1) In elementary logic. If documents written around the time of 1803 and before are not authoritative, the majority of the Constitution is not authoritative. Think first, then speak. Think first, then post. Otherwise, you look like, well, you.

2) In basic English: "Did Sotomayor commit perjury in her testimony...?" Was I not plain enough? (I wasn't trying to be cryptic, like Your Sophistry.) Yes I think she perjured herself--she pretended not to have a personal opinion on whether there was a right to self-defense. It was a tactical position, of course. Perjury appears to be a prerequisite to serving on the Court.

3) In basic knowledge: "...isn't gravity kinda the first law of nature? Or maybe something having to do with mass and energy ..." Sigh. Stay away from physics, iverglas, you have enough trouble with law. He was talking about interactions between living creatures. Context. Common sense.

4) In understanding relevance: "Let me know what authority you might quote from 1803 on, oh, evolution. Or, hey, slavery!" My namesake and Benjamin Franklin come to mind on slavery, and I fail to see even the vaguest relevance on evolution. You seem more clueless than usual, iverglas. Are you willing to repudiate all Canadian legal authorities before relativity or quantum mechanics were understood? What does legal theory have to do with an arbitrarily selected scientific discovery? Are you really that dense? Wow!

[eqfan592]

22. A quick correction....

....I don't think we really "understand" quantum mechanics. More like we are TRYING to understand them as we go.

That's all. :) ;)

[iverglas]

28. at least I know what I'm reading

1) In elementary logic. If documents written around the time of 1803 and before are not authoritative, the majority of the Constitution is not authoritative. Think first, then speak. Think first, then post. Otherwise, you look like, well, you.

A reworking of a commentary is a reworking of a commentary. That's what kind of "document" it is, and that's all it is. It isn't authoritative to start with, and the fact that it was written in 1803 makes its value as an authority on anything, to 21st century society, pretty much nil. Especially when what it's asserting is based on the Laws of Nature.

:rofl:

Forgive me. I can't help it.

On the other hand, a constitution that is still in effect is authoritative, by virtue of the fact that it has never been repudiated by the polity that elects to be governed under it.

See the difference at all?


2) In basic English: "Did Sotomayor commit perjury in her testimony...?" Was I not plain enough? (I wasn't trying to be cryptic, like Your Sophistry.) Yes I think she perjured herself--she pretended not to have a personal opinion on whether there was a right to self-defense. It was a tactical position, of course. Perjury appears to be a prerequisite to serving on the Court.
(with my emphasis)

Thank you. I mean, not that your legal opinion - that being what this is - is worth a pinch of shit. But it's nice to know what you meant. Pig-ignorant in so many ways as it is.


3) In basic knowledge: "...isn't gravity kinda the first law of nature? Or maybe something having to do with mass and energy ..." Sigh. Stay away from physics, iverglas, you have enough trouble with law. He was talking about interactions between living creatures. Context. Common sense.

No, I'm sorry, he was talking nonsense. You know that eminent philosophers used to argue about how many angels could dance on the point of a pin, right? (Hmm. Is that physics, or philosophy??)

Anyhow, if you're adopting the invocation of the Laws of Nature, could you point me to where I can find them? I'd like to verify that they're being quoted, interpreted and applied correctly. Or can I just make up my own too?


4) In understanding relevance: "Let me know what authority you might quote from 1803 on, oh, evolution. Or, hey, slavery!" My namesake and Benjamin Franklin come to mind on slavery, and I fail to see even the vaguest relevance on evolution. You seem more clueless than usual, iverglas. Are you willing to repudiate all Canadian legal authorities before relativity or quantum mechanics were understood? What does legal theory have to do with an arbitrarily selected scientific discovery? Are you really that dense? Wow!

Damn, I thought even you might have grasped the point.

People thought some funny things 200 years ago, about all sorts of stuff. Some of the stuff they thought funny things about can be called "philosophy".

Progress occurs in philosophy just as it does in science. This "Laws of Nature" business really just isn't something that rational, intelligent, educated people appeal to as authority these days. Not for quite some time now, actually.

And once again, what you were citing was commentary, not authority.

If I ran across an actual decision of an actual Canadian judicial body citing the Laws of Nature as authority for its conclusion, you betcha I'd repudiate it. I mean, possibly not the conclusion, as the conclusion could still be worthy, despite its weird underpinnings. But I sure wouldn't cite the reasoning as anything but an example of primitive philosophy!

[gorfle]

25. By your logic...

By your logic since they had slavery in 1803 no concept conceived in 1803 could have merit.

[iverglas]

29. please refer to post 18

Thank you.

[gorfle]

37. Too much verbiage.

No thanks.

Since most of your posts contain little content, I no longer waste more than a cursory glance at what you write. Posts like #18 just waste too much time.

[iverglas]

45. I'll summarize

People who start off their comments with

"So you're saying ..."
"I see, so ..."
"By your logic ..."

are signalling that they are about to say something dirtily false.

I hope that helps.



typo fixed

[sharesunited]

11. You love guns and ammo too much. The harm they do outweigh the good.

Gun worship is just base paranoia dressed up pretty.

[eqfan592]

17. Shares, do me a favor....

....post some evidence to back up your claim that they do "more harm than good" for a change instead of making completely unfounded statements of "fact." Nobody rational will take you seriously until you do this.

[sharesunited]

33. It's both self-evident and self-fulfilling.

When you need guns because of guns, the justification is entirely circular.

The resulting death and injury are the byproduct of what is clearly a cult which places the almighty gun at the center of the worshipper's universe.

[eqfan592]

34. I challenge you to provide facts to back up your claims.

Demonstrate that nations who once had high levels of firearms ownership that then went on to ban them almost entirely realized a significant decrease in violent crimes, and you must also then demonstrate that there was no other possible explanation for these decrees other than the firearms ban.

You have some work to do, I suggest to get too it.

And no, saying that it's "self-evident" is NOT proof nor evidence in any way.

[sharesunited]

39. You have it backwards.

The burden is on the gunnies to prove that society can indulge proliferation without death and injury.

Which is impossible.

All you can do is insist that proliferation must be indulged regardless of death and injury no matter how bad it gets!

The premise is that guns and ammo are sacred.

They are priority number one, to be accepted by society as a given.

The most exalted of values.

I point to the phenomenon and call it what is: Twisted.

[eqfan592]

40. You are mistaken.

It does NOT work that way (in fact, this is a similar argument that creationists try to use when stating Evolution shouldn't be taught because it's "just a theory" and they have no need to prove their points because the burden of proof is with those who believe in evolution, or so they claim).

And besides, you've already seen the proof on our side, in spite of your assertion. The statistical evidence is piled up all around you on this forum. Now it's your turn.

You make wild claims on a regular basis. Now it's time to put up or shut up. Provide detailed, statistical evidence to back up your claims. If what you say is correct, then this should be no challenge.

EDIT: I also challenge you to show where "guns and ammo" are viewed as "sacred" by anyone on these forums. I also challenge that your assertion that somehow total disarmament will lead to an end to all violence is naive in the worst possible way (in response to your proliferation "argument").

EDIT2: Also, I wonder if you recognize the inherent danger it what it is you are promoting with your proliferation "argument." Using your logic, people who promote free speech cannot possibly promote proliferation of it with out causing death or injury to others (no, words by themselves do not kill, but how people act on those words does indeed lead to a great deal of death and destruction, as words can do something guns never could, they can act directly on the minds and souls of the individuals that hear them). So another challenge for you. How can you possibly apply your logic to the 2a only without risking the opening of Pandora's box on all of our natural rights?

[OneTenthofOnePercent]

53. I am a gun-nut, and I would have to have to agree with shares...

If firearms or (for simplicity) weapons evolved past bows/blades never existed then there would be significantly less death in the world.
I can't provide evidence because it's an entirely hypothetical situation (guns do exist) but that is how I feel.
I think it's only logical that the less efficiently people can kill, the less people will be killed.

Even with that insight, firearms are a very near/dear hobby of mine and I love shootin as much as the next guy.
In fact, of the dozens of people I've introduced to shooting over the years, only one person wasn't thrilled (ironically, that is my wife).
Heck, a few of them were antigun with beliefs that people shouldn't be able to own them... one of those is even a regular shooting buddy.

All that being said, guns can't be uninvented and the hundreds of millions out there are going nowhere.
At this point in time, it only makes sense to allow people the right to defend themselves on level ground.

[Taitertots]

57. We can prove it

There were thousands of years before firearms. People seemed to be able to slaughter each other in mass quite well before guns.

[Taitertots]

56. I guess we are not all internet ninjas like you

I don't want guns for self defense because of other people's guns. I want guns for self defense from other people.

The resulting death and injury are byproduct of society. If you want to end the death and injury, you should reform your society. North Dakotans seems to be able to handle having guns without anyone being murdered, why can't you.

[iverglas]

12. Love that Scalia J ... don't we?

Some other bits and pieces he quoted (pp. 334-34, w/ my emphasis):

In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed:

“The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this effi­cient weapon more needed in just self-defence, than now in Kansas, and at least one article in our Na­tional Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defi­ance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Caro­lina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19–20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606–607 (2006).

The "red man and the beast of the forest" ... "urban" criminals ... so many enemies of the righteous white man, such an illustrious history has this keeping and bearing of arms.


In any event, I find it hard to interpret "self-defense" in that context -- against "the fanatics of slavery", i.e. in collective defence against an organized opponent -- to mean anything like what today's gun militants might like it to mean.

But oh my stars, the irony.

http://en.wikipedia.org/wiki/Charles_Sumner

Two days later, on the afternoon of May 22, Preston Brooks, a congressman from South Carolina and Butler's nephew, confronted Sumner as he sat writing at his desk in the almost empty Senate chamber. Brooks was accompanied by Laurence M. Keitt also of South Carolina and Henry A. Edmundson of Virginia, who took no part in the assault. Brooks said, "Mr. Sumner, I have read your speech twice over carefully. It is a libel on South Carolina, and Mr. Butler, who is a relative of mine." As Sumner, who was six feet four inches tall, began to stand up, Brooks began beating Sumner severely on the head with a thick gutta-percha cane with a gold head. Sumner was trapped under the heavy desk (which was bolted to the floor), but Brooks continued to bash Sumner until he ripped the desk from the floor. By this time, Sumner was blinded by his own blood, and he staggered up the aisle and collapsed, lapsing into unconsciousness. Brooks continued to beat Sumner until he broke his cane, then quietly left the chamber. Several other senators attempted to help Sumner, but were blocked by Keitt who was holding a pistol and shouting, "Let them be!"

[TPaine7]

48. More sophistry?

So you found some racism and an instance of collective defense to concentrate on? Who are you trying to fool? No doubt you "honestly" missed this quote in the OP:

SIMILAR DISCUSSION ATTENDED THE PASSAGE OF THE CIVIL RIGHTS ACT OF 1871 AND THE FOURTEENTH AMENDMENT. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, SENATOR POMEROY DESCRIBED AS ONE OF THE THREE “INDISPENSABLE” “SAFEGUARDS OF LIBERTY . . . UNDER THE CONSTITUTION” A MAN’S “RIGHT TO BEAR ARMS FOR THE DEFENSE OF HIMSELF AND FAMILY AND HIS HOMESTEAD.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “s citizens of the United States have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866).

IT WAS PLAINLY THE UNDERSTANDING IN THE POST-CIVIL WAR CONGRESS THAT THE SECOND AMENDMENT PROTECTED AN INDIVIDUAL RIGHT TO USE ARMS FOR SELF-DEFENSE.

Heller, p 43-44

No doubt you also don't realize that the Fourteenth Amendment--the subject of discussion in that quote--was specifically intended to protect righteous black men and women against unrighteous white men, right?

There is nothing inherently racist about self-defense with a gun. Scalia is not proposing that race be used to discriminate against people who want to keep and carry arms. No one is. (OK, New York and similar places may have de facto racial bias—but they’re also against rights for the vast majority of white people. And Oprah probably has enough pull to get a license there. Obama will probably have enough after he’s president. His wife could probably squeak in too.)

Scalia is simply demonstrating that the right was broadly understood to be personal as well as collective, as you well know. He is not trying to establish the right of the "righteous white man" to self-defense as opposed to the right of the righteous black man or the righteous Jew or the righteous Asian woman. Trying to tar him with the brush of racism for quoting sources that contain racist language but also prove his actual points is beneath you the decent person you should aspire to be.

There are many legitimate reasons to criticize Scalia. If that's what you want to do, why not pick one of them?

Give integrity a try, iverglas. I know it goes against the very fiber of your being, but after the initial suffering, you might actually start to like it.

[iverglas]

50. No thanks, I'm full

:rofl:


Or, as my father always said about the puke salad at Christmas:

No, really, I wouldn't want there not to be enough for everybody else.


HAHAHAHAH!

[iverglas]

51. I see you decided to dump some on my plate anyhow

No doubt you also don't realize that the Fourteenth Amendment--the subject of discussion in that quote--was specifically intended to protect righteous black men and women against unrighteous white men, right?

You're quite right, I don't.

I kind of figure it was intended to extend the equal protection of the law to ALL people, and in particular (the need being there) people of colour.

I'd never heard that there was a qualification attached: that the equal protection of the law was available only to the righteous.

Gosh, you sure are helping me understand how you do stuff down there, eh?

[jody]

38. Excellent post. I offer the following observation.

The SCOTUS majority said in Heller:

We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “{t}his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.

Stevens in dissent wrote:

The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis dded); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “{t}hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added).The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.

Stevens acknowledges the “the people have a right to bear arms for the defence of themselves" a right that SCOTUS said in United States v. Cruikshank, (1876), “{t}his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”.

Stevens and the other three dissenting justices are left with the obvious, if an individual right to keep and bear arms for self-defense is not an enumerated right protected by the Second Amendment, it must be an unenumerated right protected by the Ninth Amendment because PA and VT declared that right is a “natural, inherent, inalienable/unalienable right”.

SUPPORT:
28 Sept. 1776

That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

And

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

PA ratified the BOR on 10 March 1790 and with contemporaneous knowledge of the Second Amendment, PA modified its constitution that took effect on 2 Sept. 1790 to say "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."

As an inalienable or pre-existing right it is impossible for PA citizens to have given the right of self-defense away when they ratified our Constitution or when they ratified the BOR. PA citizens acknowledged that fact by retaining the right of self-defense in their constitution when they modified it just five months after they ratified the BOR because SCOTUS said "{t}his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE STATE OF VERMONT 8 Jul. 1777

THAT all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. Therefore, no male person, born in this country, or brought from over sea, ought to be holden by law, to serve any person, as a servant, slave or apprentice, after he arrives to the age of twenty-one Years, nor female, in like manner, after she arrives to the age of eighteen years, unless they are bound by their own consent, after they arrive to such age, or bound by law, for the payment of debts, damages, fines, costs, or the like.

And

That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.