View Full Version : Interesting bill in Montana, "Montana Firearms Freedom Act"
link - http://data.opi.mt.gov/bills/2009/billhtml/HB0246.htm
Summary: Act declares that firearms, firearm accessories, or ammunition made in Montana - that never crosses the Montana border - are exempt from all Federal regulation based upon the commerce clause of the US Constitution. Declares it the duty of the Montana Attorney General to defend Montana citizens thus engaged against federal prosecution. Starting October 1st, 2009.
Another good reason to move to MT! Not that I need any more just need to get the timing right!
Maybe this will become a national trend :cool:
Buckaroo
It's been introduced before to no effect.
And besides, if by chance it passed, would the ATF care? They don't respect the Bill of Rights, the U.S. Constitution in general, private property, or laws against murder and reckless endangerment.. Why should they care about a state statute?
thopkins22
02-03-09, 15:03
And besides, if by chance it passed, would the ATF care? They don't respect the Bill of Rights, the U.S. Constitution in general, private property, or laws against murder and reckless endangerment.. Why should they care about a state statute?
They don't and this won't change their minds. There are a bunch of states with medical marijuana laws...but the DEA still operates in them. I don't know enough about it to know whether they declare it the duty of the state to defend their citizens from federal prosecution though.
Even if it doesn't make any difference at all, it's good to hear that the states aren't in lockstep with the federal govt. A good sign for freedom.
03humpalot
02-03-09, 15:33
:cool:
And besides, if by chance it passed, would the ATF care? They don't respect the Bill of Rights, the U.S. Constitution in general, private property, or laws against murder and reckless endangerment.. Why should they care about a state statute?
That's an absolutely asinine thing to say. I've dealt with dozens and dozens of ATF personnel and count quite a few among my friends ... most of whom are shooting buddies.
I'm willing to bet the average ATF agent has infinitely more training and understanding of the U.S. Constitution than you do.
John_Wayne777
02-03-09, 16:08
link - http://data.opi.mt.gov/bills/2009/billhtml/HB0246.htm
Summary: Act declares that firearms, firearm accessories, or ammunition made in Montana - that never crosses the Montana border - are exempt from all Federal regulation based upon the commerce clause of the US Constitution. Declares it the duty of the Montana Attorney General to defend Montana citizens thus engaged against federal prosecution. Starting October 1st, 2009.
Good luck with that, Montana.
The USSC opened ISC to mean anything Congress wanted it to mean long, long ago. If the raw materials aren't mined and processed in Montana and turned into parts in Montana before being assembled into weapons in Montana, then ISC applies.
If the product could even affect the market for weapons in any way, ISC applies.
thopkins22
02-03-09, 16:52
I'm willing to bet the average ATF agent has infinitely more training and understanding of the U.S. Constitution than you do.
Sure, but I don't think that equals respect for it. The constitution as it's so clearly written doesn't allow for anything the ATF does. The constitution as it's been interpreted by hateful judges does apparently.
Alcohol prohibition was wrong in so many ways, but at least they had the common courtesy to change the constitution to accommodate their actions. When have they done that regarding firearms or tobacco? And for that matter how do they justify dealing in alcohol without the 18th?
I don't doubt that there are plenty(most?) of ATF agents that are good guys etc...but they're part of a system that demands big government and a reduction of liberty. I don't think the argument(at least on this board,) is ever that the agents themselves are bad/corrupt/or hate freedom. But the ATF as an agency certainly does.
I feel no differently towards the USDA or any other silly federal bureaucracy.
CarlosDJackal
02-03-09, 17:43
I'm willing to bet most of the rank-and-file ATF agent would have no problem abiding by this type of a law whether it's Federal or State. But I suspect that the ATF itself as an organization probably could care less.
While this Bill may or may not have some teeth; kudos to Montana for having the nads to even consider one. You never know just how things might play out. A State that has this type of a law has a better chance of maintaining their Citizenry's RKBA than a State that doesn't.
There was acase some time ago to where the county sheriff made any federal agent get his approval before coming into his Montana county, don't recall the outcome.
Sure, but I don't think that equals respect for it. The constitution as it's so clearly written doesn't allow for anything the ATF does. The constitution as it's been interpreted by hateful judges does apparently.
Let's put it this way: If you think the 2nd Amendment -- unlike every other clause in the U.S. Constitution -- should be interpreted by some guys on the internet instead of the Judicial Branch, then I suppose you're right. Of course, the folks over on the Brady Bunch forum would like to be the ones interpreting it, too.
You know, it amazes me that folks on this forum are the first to jump on a new guy who doesn't know the most esoteric details of AR construction and shooting, but they think their layman's interpretation of legal principles is "more right" than people who have actually spent lifetimes studying the law. :rolleyes:
The Constitution was written on a 5th grade level for a reason...so the common person could read and understand it.
It amazes me how many intellectual individuals want to give up the interpretation (when none is needed) of the single most important document as it pertains to their individual rights to someone else...especially someone in government.
Why do you need someone else, especially the government, interpretting the Constitution for you? The judicial branch was designed to review laws as they pertain to constitutionality, not to review the Constitution against laws. That basic understanding seems to be lost.
Cagemonkey
02-03-09, 19:25
I could be wrong. Is this the beginning of the 1990's redux? Remember the FREEMEN incident in the midwest.
Bolt_Overide
02-03-09, 19:48
That's an absolutely asinine thing to say. I've dealt with dozens and dozens of ATF personnel and count quite a few among my friends ... most of whom are shooting buddies.
I'm willing to bet the average ATF agent has infinitely more training and understanding of the U.S. Constitution than you do.
Yah thats a BS generalization. Every walk of life has its bad appples, but thats like saying all hispanic ppl are illegals, or all black people are gang bangers, or all white ppl are kkk members. Its a load of BS.
My old man was ATF, and he is one of the most honest, honorable, and generous people I know. And to lump him in with that kinda crap is insulting.
Mr.Goodtimes
02-03-09, 19:59
automatic weapons are still going to illegal in montana, though, correct? but would this make suppressors cash and carry in the state?
Bolt_Overide
02-04-09, 08:22
Oh I wont argue that the organization has issues. I overheard more than one conversation of him literally telling his immediate boss to go **** himself, that he wasnt doing something or other that he didnt feel good about. And the agency politics probably had a lot to do with him getting out at 26 instead of 30.
SinnFéinM1911
02-04-09, 08:54
Act declares that firearms, firearm accessories, or ammunition made in Montana - .
Just curious.:confused:. How many are made in Montana? I dont See Colt, FN, HK or anyone else moving there anytime soon.
Yah thats a BS generalization. Every walk of life has its bad appples, but thats like saying all hispanic ppl are illegals, or all black people are gang bangers, or all white ppl are kkk members. Its a load of BS.
My old man was ATF, and he is one of the most honest, honorable, and generous people I know. And to lump him in with that kinda crap is insulting.
I said 'the ATF' as an organization. I never made it personal, I never referred to individuals.
Just curious.:confused:. How many are made in Montana? I dont See Colt, FN, HK or anyone else moving there anytime soon.
They don't need to, this could let Montanans build their own weapons that would otherwise be NFA legitimately, without going through the tax stamp, fingerprint, etc hassle.
In 1942, SCOTUS decided the case of Wickard v. Filburn (317 U.S. 111 (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZS.html)), which is the foundation of most Commerce Clause decisions today. Wickard held that someone growing wheat in his backyard for personal consumption still had an impact on interstate commerce. As such, even though the wheat itself would never leave the state, it could be regulated by the federal government.
The decision in Wickard was cited as controlling by SCOTUS as recently as 2005 in Gonzalez v. Raich (545 U.S. 1 (http://www.law.cornell.edu/supct/html/03-1454.ZS.html)) which used the same logic with regard to growing "medical marijuana" in one's backyard.
CarlosDJackal
02-04-09, 11:07
New Hampshire seems to be heading in the same dirtection: NH HCR-6.html (http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html)
HCR 6 – AS INTRODUCED
2009 SESSION
09-0274
09/01
HOUSE CONCURRENT RESOLUTION 6
A RESOLUTION affirming States’ rights based on Jeffersonian principles.
SPONSORS: Rep. Itse, Rock 9; Rep. Ingbretson, Graf 5; Rep. Comerford, Rock 9; Sen. Denley, Dist 3
COMMITTEE: State-Federal Relations and Veterans Affairs
ANALYSIS
This house concurrent resolution affirms States’ rights based on Jeffersonian principles.
09-0274
09/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
A RESOLUTION affirming States’ rights based on Jeffersonian principles.
Whereas the Constitution of the State of New Hampshire, Part 1, Article 7 declares that the people of this State have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled; and
Whereas the Constitution of the State of New Hampshire, Part 2, Article 1 declares that the people inhabiting the territory formerly called the province of New Hampshire, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign and independent body-politic, or State, by the name of The State of New Hampshire; and
Whereas the State of New Hampshire when ratifying the Constitution for the United States of America recommended as a change, “First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid are reserved to the several States to be, by them Exercised;” and
Whereas the other States that included recommendations, to wit Massachusetts, New York, North Carolina, Rhode Island and Virginia, included an identical or similar recommended change; and
Whereas these recommended changes were incorporated as the ninth amendment, the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, and the 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, to the Constitution for the United States of America; now, therefore, be it
Resolved by the House of Representatives, the Senate concurring:
That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, -- delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress; and
That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, slavery, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “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,” therefore all acts of Congress which assume to create, define, or punish crimes, other than those so enumerated in the Constitution are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory; and
That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “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:” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, all acts of Congress of the United States which do abridge the freedom of religion, freedom of speech, freedom of the press, are not law, but are altogether void, and of no force; and
That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction; and
That a committee of conference and correspondence be appointed, which shall have as its charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this State continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their federal compact, to be friendly to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this State is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this State, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism -- free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this State does therefore call on its co-States for an expression of their sentiments on acts not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this State in considering acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, not merely as the cases made federal, (casus foederis,) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories; and
That the said committee be authorized to communicate by writing or personal conferences, at any times or places whatever, with any person or person who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of the General Court; and
That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. Acts which would cause such a nullification include, but are not limited to:
I. Establishing martial law or a state of emergency within one of the States comprising the United States of America without the consent of the legislature of that State.
II. Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.
III. Requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to, or as an alternative to, incarceration after due process of law.
IV. Surrendering any power delegated or not delegated to any corporation or foreign government.
V. Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press.
VI. Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; and
That should any such act of Congress become law or Executive Order or Judicial Order be put into force, all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually. Any future government of the United States of America shall require ratification of three quarters of the States seeking to form a government of the United States of America and shall not be binding upon any State not seeking to form such a government; and
That copies of this resolution be transmitted by the house clerk to the President of the United States, each member of the United States Congress, and the presiding officers of each State’s legislature.
M4tographer
02-04-09, 14:38
http://apps.leg.wa.gov/billinfo/summary.aspx?bill=4009&year=2009#history
Washington State, too. Heard that Missouri, Oklahoma, and possibly Arizona as well. Let's do it!!!
Oklahoma and Washington have bills introduced. I didn't know about Missouri, though.
http://www.snowflakesinhell.com/2009/02/04/other-sovereignty-bills/
If you could dig up a link to the Missouri bill (if there is one) that would be great.
M4tographer
02-04-09, 15:36
If you could dig up a link to the Missouri bill (if there is one) that would be great.
http://www.house.mo.gov/content.aspx?info=/bills091/bills/hcr13.htm
:)
This is good news, I hope it passes
NinjaMedic
02-04-09, 20:04
Per the supreme court in the 2005 Medicinal Marijuana case, it will affect interstate commerce due to the fact that you are not purchasing it from out of state. Kinda hard to get your head around but in essence your not spending money outside the state affects interstate commerce the same as spending your money out of state would.
Judges make up crazy logic like that to implement their own political beliefs, or sometimes to reinforce the status quo. Eg, the circular logic that (new) machine guns shouldn't be legal because they're not common, knowing full well that they're not common because they're almost completely illegal.
Double malf.
But not the Olofson kind.
;)
:cool:
With any bill , I'm always curious about a couple things:
How many co-sponsors in a House or Senate of how many members?
Is there a counterpart bill in the other chamber?
Here's a Federal example:
HR 1022: The dreaded new AWB from last year: around 64 co-sponsors out of
around 435 members. Pathetic and weak.
No (n-o) Senate counterpart.
Dead on arrival.
:D
So what's up with this bill?
In at least one state something kinda like this has one sponsor. IIRC , NH has more than that. Dozen or so , or maybe half a dozen ?
Out of how many?
exkc135driver
02-08-09, 20:37
... it amazes me that folks on this forum are the first to jump on a new guy who doesn't know the most esoteric details of AR construction and shooting, but they think their layman's interpretation of legal principles is "more right" than people who have actually spent lifetimes studying the law.
You are so right.
Sttrongbow
02-08-09, 20:48
There was acase some time ago to where the county sheriff made any federal agent get his approval before coming into his Montana county, don't recall the outcome.
Entirely beyond the scope of his authority.
The Constitution was written on a 5th grade level for a reason...so the common person could read and understand it.
It amazes me how many intellectual individuals want to give up the interpretation (when none is needed) of the single most important document as it pertains to their individual rights to someone else...especially someone in government.
Why do you need someone else, especially the government, interpretting the Constitution for you? The judicial branch was designed to review laws as they pertain to constitutionality, not to review the Constitution against laws. That basic understanding seems to be lost.
Exactly.
Those "pros" you like to rely on for interpretations are the same bunch of assholes who created fictional ideas like "a compelling state interest" and other such BS to justify their positions.
The Constitution isn't exactly written in a bunch of "$10 words," but rather in pretty plain English that most anyone can read and understand.
You know, it amazes me that folks on this forum are the first to jump on a new guy who doesn't know the most esoteric details of AR construction and shooting, but they think their layman's interpretation of legal principles is "more right" than people who have actually spent lifetimes studying the law. :rolleyes:
If all the said experts were neutral in relation to the societal contract and application of those legal principles or everyone's goals were at least mostly the same, I would generally agree with you. However, not all positions in the area of law and government are created equal and there is significant interest and time/talent/money used to manipulate law to one's benefit. That being the case, high levels of education do not naturally correct a biased foundation, but rather, it will often serve to re-enforce the bias instead of correcting it.
In this view, I believe it's entirely possible for a layman's interpretation to be "more right" than the experts.
The BATFE's problem is the same as the problems faced by the Chicago PD and the Washington DC PD....the organization's leadership has been appointed by idiots, and the people who did the appointing were elected by idiots.
I really liked how you broke this down. Excellent post.
As a retired federal LEO I have my reservations about the ability of some LEOs today to draw ethical and moral lines. In my father's day and mine most LEOs were products of a different society and often ex-GIs as well. they were steeped in a different culture, had some experience in the wider world, and often more mature. They could apply an ethical yardstick to a law, command, or situation and act responsibly--because they had done it before. I once got my ears pinned back by a BIA police officer who was deeply offended when I kidded him about "working for the government". He told me in no uncertain terms that he, by God, "worked for the people". He was right. Doing the right thing had a higher value than being a team player. There are things like "spirit of the law" and discretion, and if necessary, bucking the system.
I guess what I am saying is that everything, be it a society or a marriage, comes down to TRUST. I'm not saying that the old timers were paragons of virtue or without flaws; but I think a lot of them had a moral compass that would balk at ever becoming willing (or reluctant) agents of oppression.
I don't know if that still applies. Sadly enough, I'm running low on trust nowadays. My feeling is that my liberties are liable to be at risk in the future from the stroke of a pen and duly issued orders, duly carried out by duly authorized people.
Please God I am wrong on this.
In this view, I believe it's entirely possible for a layman's interpretation to be "more right" than the experts.
Bias is one thing. Education/training is another.
An educated person with a bias is still biased.
The point is that people love to trumpet "what part of shall not be infringed don't you understand?" as if that was a logical argument. It's not. It's no better than the antis who take the Militia Clause and pretend it's the only part of the 2A that matters. There are well established methods for interpreting and applying the simplistic text of the Constitution. The fact that some laymen would rather just say "it means what it says (according to my personal interpretation)" doesn't change that.
The parts of the 2A that require interpretation are "keep," "bear," and "arms." Now, someone will no doubt grab a copy of the closest dictionary and pick his favorite definition for each word, but again that's not how things work. For example, one could certainly argue that nothing about the words "keep" or "bear" as defined by a dictionary say anything about the ability to buy ... so if we want to use layman definitions, one could interpret the Second Amendment as saying that the government cannot regulate keeping them and bearing them, but can do whatever it wants in terms of purchasing, selling, manufacturing ... you get the idea.
I don't think any of us wants to see the 2A interpreted that way, do we?
Issue #2 is that "shall not be infringed" doesn't mean absolutely any laws having anything whatsoever to do with guns are unconstitutional. Before someone disagrees with this, ask yourself a simple question: Do you think it should be legal for convicted felons to have guns in prison? If not, then you clearly understand that there has to be some limit on who, when, and where. Once you step over that line and acknowledge that some limit is ok, then we're just arguing about where the the next line should be drawn. But your absolutist stance is trashed.
That, by the way, is a pretty standard concept in constitutional interpretation. They're called time, place, and manner restrictions and they're ok under specific tightly construed circumstances. Odds are, in a post-Heller world, those are the kinds of limitations we'll see on 2A rights.
I'm having con law flashbacks....
Bias is one thing. Education/training is another.
I don't think it's such a clear cut distinction. They can be, and often are, one and the same when education and training are heavily biased by the instructors, material writers, or organization. Where people become biased due to their training because their thinking is formed by said training.
Issue #2 is that "shall not be infringed" doesn't mean absolutely any laws having anything whatsoever to do with guns are unconstitutional. Before someone disagrees with this, ask yourself a simple question: Do you think it should be legal for convicted felons to have guns in prison? If not, then you clearly understand that there has to be some limit on who, when, and where. Once you step over that line and acknowledge that some limit is ok, then we're just arguing about where the the next line should be drawn. But your absolutist stance is trashed.
The problem I have with today's interpretations is that instead of changing the text of the law, they do exactly what you did and claim the line must be drawn somewhere other than where a strict interpretation of the text of the law would have it drawn. So you end up saying it's reasonable to ignore aspects of the law because the law isn't reasonable. This is the logic pattern used. Which runs against every fiber in me, no system of law is safe from such thinking. It's destructive. If it's a bad law, you change the law, you don't ignore the parts you don't like because you find them unreasonable.
Rather than interpret what seems reasonable into the supreme law, let's have the national discussion and change the text of the law to reflect what we really want (collectively). Determine exactly where we want the line and set it in concrete instead of the moving goal posts of the present in "time, place, and manner restrictions", NFA, AWB or whatever flavor of interpretation may come next decade.
For sake of argument, I'm okay removing "shall not be infringed" and discussing a reasonable position for the line we draw. Lets just do it properly.
Rather than interpret what seems reasonable into the supreme law, let's have the national discussion and change the text of the law to reflect what we really want (collectively). Determine exactly where we want the line and set it in concrete instead of the moving goal posts of the present in "time, place, and manner restrictions", NFA, AWB or whatever flavor of interpretation may come next decade.
The point is that "shall not be infringed" is just fine. But what shall not be infringed?
The right to keep and bear arms. Those three words are the ones that have to be interpreted.
Let's set aside the 2A because people are -- justifiably -- very emotional and defensive about it. Instead, let's take a look at the 1A:
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.
It says Congress shall make no law. But obviously, there are plenty of laws dealing with religion and speech and the press, there are laws which affect assembly, and there are plenty of very complicated legal structures dealing with how a person can petition the government for redress.
And many of those laws existed at the time of the BoR's adoption as well as immediately thereafter when many of its authors were directly involved in the legislating and administering of our nation's government.
So while Congress cannot pass a law that "abridges the freedom of speech," you can't really say just what that means until you establish what, exactly, the "freedom of speech" includes. Does it include slander? No. Does it include perjury? No. Does it include fraud? No. Does it include sharing classified information? No. Etc. None of those specifics are written into the 1A.
Heck, how many times have you been to an online forum like M4C and seen some doofus complain that the moderators were violating his freedom of speech? Knowing a few catch phrases isn't the same as understanding their foundation and application. And in the case of the Bill of Rights, for both good and bad, you also have to add in their evolution over the past 217 years.
Again, unless you honestly believe it was the intent of the Founders to allow convicted felons to carry firearms into prison, then you have to accept that the 2A was never meant to be confer a completely unfettered right to possess a gun by anyone, at any time, in any place. Rather than focus on absolutist claims which have no basis in history or logic, we'd all be much better served if we argued about what the 2A really was meant protect.
thopkins22
02-12-09, 16:25
And many of those laws existed at the time of the BoR's adoption as well as immediately thereafter when many of its authors were directly involved in the legislating and administering of our nation's government.
I understand your point...but I couldn't help but think of the Alien and Sedition Acts. In my opinion it was unconstitutional law and pretty atrocious at that.
Again, unless you honestly believe it was the intent of the Founders to allow convicted felons to carry firearms into prison, then you have to accept that the 2A was never meant to be confer a completely unfettered right to possess a gun by anyone, at any time, in any place. Rather than focus on absolutist claims which have no basis in history or logic, we'd all be much better served if we argued about what the 2A really was meant protect.
I do not disagree with everything that you said, but I cannot agree with this statement. Incarceration is by definition a loss of freedom, and therefore your argument is meaningless.
IMO, a more relevant question: Do you believe that the writers intended the 2nd to recognize a right for released felons, minors, the mentally ill, etc., to keep and bear arms?
Id have a lot more respect for the ATF is their agents said NO when they are told to do something shady, wrong or illegal.
But they dont.
Until that happens they are enemies of the BoR and the 2A and I will treat them as such
I do not disagree with everything that you said, but I cannot agree with this statement. Incarceration is by definition a loss of freedom, and therefore your argument is meaningless.
IMO, a more relevant question: Do you believe that the writers intended the 2nd to recognize a right for released felons, minors, the mentally ill, etc., to keep and bear arms?
Yes, once you serve your time all rights should be restored, and the problem w/ 'mentally ill' is who determines it
Once the .gov starts limiting rights because of some definition, they increasingly redraw the lines in order to control the populace
I dont support ANY businesses I find less that 2A friendly
The 2A needs NO interpretation, and is written as basic as it could be and anyone saying it takes an expert opinion to interpret it is just another government revisionist
Anyone who trusts the ATF is a fool IMO! The same ATF who says loading powder and pipes in walls is constructive intent for a DD, or who will tinker w/ a weapon to make it double and say its an MG, or call a shoestring an MG etc
And you want me to trust their version of the 2A, NEVER HAPPEN
they think their layman's interpretation of legal principles is "more right" than people who have actually spent lifetimes studying the law. :rolleyes:
To a certain extent I agree, but all to often those who spend lifetimes studying the law are not necessarily studying it for its intent, but instead to twist it through verbal sword play to further their own agenda, what ever it may be. Sometimes laws are easier to understand, than those who study law would have you believe. But if everyone knew that, then the demand for lawyers would drop.
P.S. Todd, I do value your opinion
And many of those laws existed at the time of the BoR's adoption
Just because we agree to abide by certain laws, and don't repeal them does not mean that they have constitutional biases.
EvilSpeculator556
02-13-09, 00:25
What! You have the guy who's dad was an ATF inspector and a guy who has a spectacular reputation or history or whatever arguing against this. Great! Moving along.....
Important information: Everyone will do what is in their best interest. Collectivists don't use logic to enslave people.
I'm genuinely sorry if anyone has mistook my comments as being anti-2A. Unlike a lot of folks here, I've actually worked for the NRA ... including being the "go to" guy they used for fam fire ILA events with Congressmen and Senators. Like many of the folks on this board, I'm a life member.
The reality is that the anti-2A crowd has been so virulent and so effective that it's only natural to see an uncompromising backlash from folks who understand the importance of our Second Amendment rights. Extremism in the defense of liberty is no vice, as Barry Goldwater said.
It's also certainly true that lawyers all too often fall into the trap of arguing for the sake of arguing, negotiating for the sake of winning a negotiation. I can remember countless times sitting in a room listening to plea negotiations as a prosecutor and defense attorney bickered about the difference between 15 years in prison or 12 years in prison, as if it made a practical difference to the life of the defendant.
Nonetheless, just as I don't stay quiet when the anti-gun folks spout ridiculous rhetoric misconstruing or maliciously manipulating the Second Amendment, I'd rather not keep my thoughts to myself when I see honest, dedicated, patriotic men who repeat things they've learned which are not altogether correct in terms of history or the law.
To the extent that offends someone ... I'll learn to live with the burden.
Todd,
Are you familiar with the recent decision from the 2nd Circuit Court of Appeals in re: Maloney v. Cuomo? I am posting a link. If I read it correctly it says that the 2nd Amendment does not veto state weapons bans. What is your opinion about this and how it could affect other similar cases that may arise?
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTA1ODEtY3Zfb3BuLnBkZg==/07-0581-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl66a/1/hilite
IG -- I have not read the opinion, only summaries I've seen online.
Long complicated explanation condensed as best I can at 0430: :cool:
The BoR was not originally intended to limit the states. In other words, in 1791, no one thought that the First Amendment put any sort of restriction on what the New York state government could outlaw in terms of speech, religion, etc. That was all supposed to be left to the states. You may notice that every state has its own constitution and many of them have a section similar to the Bill of Rights. It's not redundant, it's an expression of the state's limits upon itself because when most of those state constitutions were written, there was no federal limitation.
(historical trivia: of the original 13 states, all but one -- Maryland -- had a RKBA clause in its state constitution)
Fast forward about 150 years. Early 20th century Supremes started writing decisions that took a 19th century amendment (the 14th) and used it as a vehicle to apply the 18th century Bill of Rights to state governments. But not all at once.
This is called incorporation and basically means that a particular provision of the BoR has been deemed "incorporated" into the 14th Amendment's Due Process Clause. It's done piecemeal (so each individual right outlined in the First Amendment, for example, has to be decided separately). Almost the entire BoR has been incorporated at this point. But, SCOTUS has never ruled to incorporate the Second Amendment. In fact, the Heller decision quite purposefully sidestepped the issue, relying on the fact that D.C. is a federal district and not n separate state.
So, if I understand what happened in Maloney at the Second Circuit, the panel rejected the idea that Heller should be read an applying to state laws because SCOTUS has not formally incorporated 2A.
Ironically, one of the last major cases that rejected the idea of incorporation, back in the late 1800's, was Presser v. Illinois in which SCOTUS specifically did not incorporate 2A. So without guessing at whether the particular judges in the Second Circuit are pro- or anti-gun, they were technically bound to obey the precedent in Presser. (admittedly, that's a pretty narrow ledge to rest your argument upon given Heller and the general acceptance of incorporation philosophy in the intervening years)
So while many people believe the Bill of Rights applies to state and local governments and thus they assume the Second Amendment protects us against state or local intrusion into our right to keep and bear arms, at least for the moment that is not, in fact, true. (nor, before people start throwing rotten tomatoes, was it ever the intent of the Framers)
But the writing is on the wall, and if this case can get to SCOTUS before any major alignment shift occurs on the Court the odds are reasonably good that 2A will be incorporated. On the other hand, it's possible the Court could deny cert (meaning they won't hear the case) in this particular case because it's not the ideal vehicle to decide the issue.
You did a good job of laying it out. I think Presser v. Illinois was actually mentioned in this matter. When you said CERT do you mean certiorari? Do you think that if that matter goes higher it can help or hurt us with the variables that are in place at this moment?
IG -- I have not read the opinion, only summaries I've seen online.
Long complicated explanation condensed as best I can at 0430: :cool:
The BoR was not originally intended to limit the states. In other words, in 1791, no one thought that the First Amendment put any sort of restriction on what the New York state government could outlaw in terms of speech, religion, etc. That was all supposed to be left to the states. You may notice that every state has its own constitution and many of them have a section similar to the Bill of Rights. It's not redundant, it's an expression of the state's limits upon itself because when most of those state constitutions were written, there was no federal limitation.
(historical trivia: of the original 13 states, all but one -- Maryland -- had a RKBA clause in its state constitution)
Fast forward about 150 years. Early 20th century Supremes started writing decisions that took a 19th century amendment (the 14th) and used it as a vehicle to apply the 18th century Bill of Rights to state governments. But not all at once.
This is called incorporation and basically means that a particular provision of the BoR has been deemed "incorporated" into the 14th Amendment's Due Process Clause. It's done piecemeal (so each individual right outlined in the First Amendment, for example, has to be decided separately). Almost the entire BoR has been incorporated at this point. But, SCOTUS has never ruled to incorporate the Second Amendment. In fact, the Heller decision quite purposefully sidestepped the issue, relying on the fact that D.C. is a federal district and not n separate state.
So, if I understand what happened in Maloney at the Second Circuit, the panel rejected the idea that Heller should be read an applying to state laws because SCOTUS has not formally incorporated 2A.
Ironically, one of the last major cases that rejected the idea of incorporation, back in the late 1800's, was Presser v. Illinois in which SCOTUS specifically did not incorporate 2A. So without guessing at whether the particular judges in the Second Circuit are pro- or anti-gun, they were technically bound to obey the precedent in Presser. (admittedly, that's a pretty narrow ledge to rest your argument upon given Heller and the general acceptance of incorporation philosophy in the intervening years)
So while many people believe the Bill of Rights applies to state and local governments and thus they assume the Second Amendment protects us against state or local intrusion into our right to keep and bear arms, at least for the moment that is not, in fact, true. (nor, before people start throwing rotten tomatoes, was it ever the intent of the Framers)
But the writing is on the wall, and if this case can get to SCOTUS before any major alignment shift occurs on the Court the odds are reasonably good that 2A will be incorporated. On the other hand, it's possible the Court could deny cert (meaning they won't hear the case) in this particular case because it's not the ideal vehicle to decide the issue.
John_Wayne777
02-13-09, 06:58
To the extent that offends someone ... I'll learn to live with the burden.
There's a difference between laying out the reality of a situation and being an *advocate* of the situation. A lot of people on the internet can't seem to grasp that.
Describing the way things are and the reasons behind it is not the same as saying that's the way things ought to be, folks....
30 cal slut
02-13-09, 07:05
IMO, a more relevant question: Do you believe that the writers intended the 2nd to recognize a right for released felons, minors, the mentally ill, etc., to keep and bear arms?
weren't common criminals required to muster for militia duty?
You did a good job of laying it out. I think Presser v. Illinois was actually mentioned in this matter. When you said CERT do you mean certiorari? Do you think that if that matter goes higher it can help or hurt us with the variables that are in place at this moment?
IG -- Yes, certiorari.
There are three things that could happen now:
The defendant could run out of money and/or motivation and drop it, taking his conviction and ending the appellate process.
The case could be re-heard en banc by the entire 2nd Circuit.
The case could be heard by the Supremes.
If the case goes to the full 2nd Circuit, it could only help. Worst case (and most likely) scenario is that they'd affirm the panel's decision, which would be a net zero loss. If the en banc decision reversed the panel, though, we win.
If the case goes to the Supremes, if I had to guess (and many people have lost their lives or fortunes trying to guess what the Supremes would do in a case :cool:) I'd say we have a pretty strong chance of coming out on top with the current makeup of the Court. It's even possible you'd get a better result than Heller since some of the Supremes who didn't like Heller are very pro-incorporation. (and, ironically, some that went our way in [i]Heller[/] are anti-incorporation)
Of course, that assumes the Court feels the need to address the issue. A general rule the Court follows when deciding a case is that they base rulings on non-Constitutional issues whenever possible. The idea is that they make their decisions on the "easiest" or narrowest issue possible.
Again, I don't know enough about the specifics of the case to say whether it's a good vehicle for furthering the 2A cause. That's what made Heller so perfect, it was a small step that now opens the door to similar challenges in places like Chicago, which in turn is a small step towards the next and the next ...
thopkins22
02-13-09, 20:27
That's what made Heller so perfect, it was a small step that now opens the door to similar challenges in places like Chicago, which in turn is a small step towards the next and the next ...
Exactly, it's ridiculous and counterproductive to rant and rave(though I still do;)) that every gun law since and including 1934 is unconstitutional and horrible. Our rights have been slowly eroded...if we expect to keep popular support they'll have to be returned slowly as well.
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