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Keep up. I will repeat myself. Try reading this slowly. I never claimed that the 2nd Amendment is not a fundamental right. I disputed your claim that it has been for centuries. I pointed out that it was first decided to be a fundamental right in 2010. McDonald states that it is the first case to state that the 2nd Amendment is a fundament right. It was decided in 2010. What about that do you have difficulty understanding?
Serioualy? You're kidding, right?
No, I thought that on the old site he stated that he was a lawyer...I will admit that I may very likely be wrong.
PS -- if we are throwing down academic credentials, my dad was #1 in his graduating class out of law school and has a VERY different understanding of the 2nd Amendment than you do.
This post was edited by deetj13 17 months ago
I will repeat myself as well. The Supreme Court does not create fundamental rights, it interprets them. The 2ndA has been a fundamental right since it was ratified. You can read every quote I provided you from the signing/framing/ratifying era (whatever you want to call it) which supports this position. You can't even respond to that authority because it so completely contradicts your beliefs, so you choose instead to ignore it and belittle me with your arrogant, condescending remarks that are meant to do nothing but distract from the fact that you have been completely dismantled in this debate.
This post was edited by philatrojan 17 months ago
More arrogant BS. It doesn't matter. I don't need to bloviate about my credentials like you. My arguments, and the arguments from the people I quoted in this thread, speak for themselves.
I try to keep stuff like this out of my arguments. Reciting credentials is for those whose arguments don't stand on their own.
I have a serious question on the "Fundamental Right" issue.
I was always under the impression that if a right was specifically called out in the Constitution (last I checked the initial Bill of Rights was ratified as part of the original constitution, and that amendments to teh constitution are considered as sacred as the initially drafted document) - are there rights that are delineated in teh Constitution that are not considered fundamental? If so, how are they delineated - what makes those rights granted under the 1st Amendment any more fundamental than those granted under the 2nd, 13th, 19th, or 26th.
I am not looking for a fight, just clarification on the core issue of the disagreement between Phila and Morethan (and my dad, a 30+ year practicing attorney, who also thinks that 2nd Amendment provides a fundamental right to bear arms).
Fundamental rights as a term of art was fabricated by the SCOTUS. Most of the Bill of Rights did not apply to states, only the federal government. In order to impute them to the states, the SCOTUS used the Due Process Clause of the 14th Amendment. So as not to have to impute all restrictions of the Constitution that were imposed against the federal government to the states, the Court delineates those that are "fundamental rights." Those rights are imputed by the Courth through the 14th Amendment Due Process Court to the states even though the Constitution did not expressly do so.
No one claimed that you do not know what you are tallking about (even though I believe that). I attacked your argument, not your qualifications to make such an argument. You on the other hand attacked my qualifications to make such arguments. Accordingly, I responded with my qualifications. Now you whine about me doing so.
This post was edited by Morethanafan 17 months ago
So, if I understand this correctly there are two possible definitions of fundamental rights, those specifically granted under the constitution and its amendments and also a definition under case law based on decisions by the SCOTUS.
BTW - if the Constitution of the US is the "Law of the Land" wouldn't all rights specifically granted to citizens of the US under the constitution be applicable to those in all of the states? Particularly under the 10th Amendment that only grants those rights NOT specifically delineated in the Constitution to be at the discretion of the states.
Disrupt the germans from the inside? Yeah, good call.
Of course, you're right, why defend yourself? Why bother trying? Just let your whole family be marched off to the gas chamber, right? Don't even make an effort to defend yourself.
Are you kidding me!?
Cry Havoc; and let slip the dogs of war!
This is true, but the Sp. Ct. recognizes that fundamental rights are inabienable human rights that government cannot deprive without a compelling purpose and a narrowly tailored law. They have always existed, regardless of when they were ratified against the U.S. government or incorporated against the states. That is my point. That is how the framers/ratifiers/signers/judges I've quoted apparently viewed such rights, including the right to keep and bear arms. The fact that the Sup. Ct. just recently affirmed that principle as it related to the right to keep and bear arms does not make the right any less fundamental.
With that in mind, and with support from numerous sources, it seems clear to me that possession of weapons such as the AR-15 is constitutionally protected, and much of the existing/proposed state legislation restricting the fundamental right to keep and bear arms should be struck down as unconstitutional. Nothing the state or federal governments have done to decrease gun violence has been narrowly tailored. In fact, most of the laws are written by folks like Feinstein, Leland Yee, Steinberg, et al. who know very little about firearms, and have been proven to be ineffective.
Yes, there are tiers of rights. In my opinion, there is no honest argument that the right to keep and bear arms is not a fundamental human right under the U.S. Constitution when you consider it was 2nd on the list (obviously a high priority), the circumstances under which the 2ndA was ratified (these folks just got done fighting a war against a tryrannt that tried to disarm them) and the quotes from our leaders/ratifiers of the time (see all of the above that I have provided). The 2ndA is so clearly a fundamental right, it shines light on how policitcally motivated and dishonest the liberals on the Sp. Ct. were in Heller by crying that there has never been an individual right to keep and bear arms.
The 14thA essentially applied the bill of rights to the states (I believe there are only a few the Sup. Ct. has not recognized as being incorporated, the 2ndA not being one of them).
They could have tried. Many did. But they would not have succeeded. That was the point.
The Constitution does not mention fundamental rights. The SCOTUS has defined which of those rights granted by the Constitution are fundamental, and then used the 14th Amendment to impute them to the states. The concept of fundamental versus non-fundamental rights in the Constitution is totally a SCOTUS development. Over time it has changed (generally broadened to include more rights). The most recent right deemed fundamental by the Supreme Court to be fundamental is the 2nd Amendment. Other people have opinions as to which rights are fundamental, but that does not have legal weight at a federal level. Some states consider some rights fundamental and attach significance to that. At the federal level, there is only one definition that is legally relevant, but there are many definitions by states and individuals.
Relating to your "BTW," you are correct that any federal law, and the Constitution is the highest federal law, preempts any inconsistent state law. However, many of the rights enumerated in the Constitution expressly only apply to the federal government (e.g. the 1st Amendment starts "CONGRESS shall make no law respecting. . .(emphasis added)) . When the Constitution was written, the founders (who represented the states) were not concerned with states taking away rights. They were concerned with the federal government. After the civil war, that changed largely due to slavery in some states. Amendments were added (e.g. the 14th Amendment) imposing restrictions on states from impeding the rights of citizens. Before the 14th Amendment, the federal government could not tell you what religion is acceptable or not, but states could. The federal government could not restrict speech, but states could. The Supreme Court decided to impose those "fundamental rights" on states by using the Due Process Clause of the 14th Amendment.
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