Vegas Shooter Kills 50+

I think the word you used was “worthwhile.”

And how would you vote?

Well sure, they wouldn’t have felt the need to pass it otherwise but the interpretation at the time wasn’t for the amendment to apply solely to AA’s. The interpretation of the amendment was that it established birthright US citizenship which preempted State citizenship. This inevitably extends all rights included in the constitution.

It seems to me you take more issue with incorporation and thus the 14th ammendment itself than the rulings made by originalist judges. I always understood that an originalist judicial approach meant that you would interpret each law in the same manor it was interpreted at its inception. This is in contrast with the progressive judicial approach which grants carte blanche authority to judges by treating the constitution as a “living document” to be interpreted as understood today.

This is at least my limited understanding, the conjecture of a half literate engineer may not be the most accurate on constitutional law…

https://www.google.com/amp/s/constitutionmythbuster.com/2011/07/28/did-the-14th-amendment-really-incorporate-the-bill-of-rights/amp/

I’m not sure that rights were seen as things granted by governments.

So privileges and immunities =/= constitutional rights? Had me fooled, looks like I learned something new…

I guess I’m still having trouble understanding how the 14A would have granted freed slaves equal protection under state law if it wasn’t in fact using the constitution to preempt state law.

Legal rights?

That’s fine. I didn’t say “I think it’s very relevant because Ed is trying to blame ‘gun culture’ on our homicide rate”.

I’m just saying, generally, that the number of firearms is relevant when discussing how impactful “gun culture” is on our homicide rate. I happen to think, without any data in hand, that the main driver behind our homicide rate is three-fold. 1) We have an illegal drug problem → illegal sale of drugs → gun violence, 2) We have a significant inflow of immigrants (legal and illegal) from Central and South America and, generally, they have higher homicide rates (driving our number up), and 3) we have a gang problem.

I exclude suicide because I don’t think that has anything to do with gun violence or culture, but is a mental health issue.

Lol. One of the Marine’s motos is, “Two in the chest one in the head,” so, I’m not sure you want to go down that road :slight_smile:

You are certainly more versed in SCOTUS history than I am and perhaps I’m being ignorant but is the above because SCOTUS was never put into the position of being forced to rule on matters of this nature or is this what I guess you’d (general you’d) call judicial activism?

I honestly don’t know, I find SCOTUS history fascinating, but I’m not well read in actual precedent.

How was it settled?

Okay, I’m familiar enough with Heller, do you just dispute the ruling then?
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It seems to me Justice Scalia makes it very clear in the opening portion of the opinion that the prefactory clause does not limit th scope of the operative clause and the right to arms is an individual right:
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Is that not an argument that the original intent of the 2A was for an individual right?

I do find this intersting and plan to read more on it when I have the time.

The 14th Amendment was intended only to prevent states from legally discriminating against certain groups of their citizens or citizens from other states, from my understanding; it wasn’t intended to prevent states and/or localities from passing their own laws according to the desires of their respective constituencies.

In other words, it’s absurd that the NFA is recognized as legal while Chicago can’t have its own gun laws.

Generally, yes, because challenges were at the state level, and if anyone tried to advance the case to SCOTUS, SCOTUS refused to bite (as evidenced by the lack of cases before SCOTUS on the matter).

SCOTUS incorporated the right as against the states, but then again, qualfied the right with a bunch of exceptions.

And what’s odd about Scalia’s approach is that essentially negates the prefatory clause - he reads it out of existence, he says it has no meaning. Which makes no sense - it’s an iron law of judicial interpretation that no words are merely “superfluous” - they are always in there for a reason, and you can’t ignore the language as if it never appeared. But that’s what he does.

Take his example of referencing other “right of the people” language in the BOR as support for his position - ok, in those mentions of the “right of the people”, did they include prefatory clauses? They didn’t. And the standard presumption is - that’s not an accident. The predatory clause was inserted to provide meaning, as in conditions, purposes, qualifications, etc. Had the FFs intended the operative clause of the 2A to be unqualified by any sort of condition, they would have enacted it without the prefatory clause, like the other “rights of the people” mentions.

Scalia skips that. He simply says, yeah, they added it, but it has no meaning. Makes no sense. Judges aren’t supposed to read language out of laws that way.

Also, though kind of a technical point, Scalia dismisses the prefatory clause as limiting the scope of the operative clause in basically one sentence, citing to a treatise from 1874 - despite the fact that are zillions of cites in case law on this issue, well up to present day. Point being, he’s been accused of cherrypicking and breezing past perhaps the most important part of figuring out what the 2A means. With good reason.

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Very interesting, thanks for posting. And it highlights a pretty uncontroversial way of thinking in our history - the FFs did not have a desire from the outset to “federalize” the civil rights edifice for the county. Whatever they thought about the nature and limits of liberty, they trusted the states to handle those issues. And fast forward to the 14A - it’s hard to square the idea that the original intent was to incorporate the BOR to to the states - not just the 2A, but the other rights as well.

And to be clear, I’m not saying incorporation is necessarily bad, but what I am saying is that to get incorporation, you have to depart from originalism. And if it’s ok to depart in the space of civil rights, it’s ok to depart in other spaces as well.

Yes lol.

For fairly obvious reasons too.

For “gun culture” to be “part of the problem” then yes.

Stop being intentionally dense. You’re not this dumb. The function of firearm is how I’ve described it twice now.

Again, I’m leaving you a wide open avenue in order to refine your argument, but you’re too hung up on pointless shit to see it.

Sigh… Jesus H Christ.

Fine, then fix my language in the whatever post has you this raveled up in pointless detail.

It should NEVER be seen this way, and deluding yourself into this world view is a danger to all of us. So if people could stop that would be awesome.

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I donno, that isn’t what I get out of the opinion. It seems to me he is explaining how the state militias can protect a free state. Through the people being armed at the individual level.

IIRC, and it’s been a while since I’ve looked, many if not most militiamen in the late 1700s used their own arms when mobilized. Putting every other argument aside, isn’t it reasonable to say the 2A protects an individual right to arms even if for the sole purpose of ensuring the state militias are armed?

The notion the 2nd is the only amendment in the original BOR that limits the people while protecting the State, when every other one limits the State and protects the people is a bit absurd. I mean, aside from the fact that in plain English, it’s clearly an individual right…

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But in the sequence of the argument, he (and everyone else) has to start with the prefatory clause. It either means something, or it means nothing. Scalia opened with it means nothing. And then it’s off to the operative clause. That makes little sense, given the addition of the language.

Ok, so if it’s an individual right to arms for the purpose of ensuring state militias are armed, does that mean it’s designed to also prevent the state from disarming the individual?

(Not trying to answer a question with a question - just trying to clarify what you think.)

The other “rights of the people” clauses (1A and 4A) don’t have prefatory clauses - why not?

"The Amendment’s prefatory clause announced a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms," - Scalia

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That’s the point - prefatory clauses often do limit or expand the scope of an operative clause, as a matter of law. He just skips explaining why the prefatory clause here doesn’t, and just declares it so, despite the large body of case law that deals with how prefatory clauses impact language that follows.

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Yes, and it also prevents a state from outlawing a militia.

I mean, if we’re getting into that the whole first 10 are inconsistent. You have I and IV like you mentioned. V specifies an individual right via “no person”, VI uses “the accused”; VII & VIII aren’t specifically expressive of who they apply too; IX uses “the people” and X is specific to State’s Rights and “the people”.

Do they often contradict themselves? Because that is what is implied if we ignore “the right of the people” for “well regulated militia”.

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Also, if it truly is an individual right, why can we restrict felons from owning firearms? Heller says that is fine, along with other limitations, such as restrictions on “dangerous and unusual” weapons, which completely detaches ownership from, at a minimum, weapons most useful in connection with the stated “purpose” of the 2A (serving in the militia).

How is it that 1) the prefatory clause establishes no condition on the keeping and bearing (meaning, the right isn’t tied to military service), but notes an important “purpose” above all other reasons to keep and bear (the need to make sure citizens have and are skilled with military grade weapons) but 2) the Court effectively says it’s ok to ban the very weapons that support the “purpose” listed?

It’s a dog’s breakfast of a decision.

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No, it doesn’t. It placed no restrictions on states whatsoever. Zero.

Yes, but Scalia’s point was to compare like phrases in support of his argument, and so we’re comparing “right of the people” language where it appears. And in my case, showing a difference.

Maybe? Wouldn’t it be smart to analyze that as part of a case deciding an important constitutional right (or not) rather than breezing past it and just declaring “I’m right on this because I said so”?

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