The 2nd amendment does not say "Except for felons" or "Except as provided by law". Why not?

[Little-Acorn]

Back to the subject:

The 2nd amendment does not say "Except for felons" or "Except as provided by law". Why not?

The 4th amendment bans searches and seizure, but not all of them: It specifically names unreasonable searches and seizures.

The 5th amendment says that no one can be jailed or executed etc... but makes an exception: unless there is "due process of law".

Even the 13th amendment that prohibits slavery or involuntary servitude, makes an exception: "except as a punishment for crime whereof the party shall have been duly convicted."

But the 2nd amendment, which forbids government from taking away or restricting our right to keep and bear arms, is conspicuously devoid of any such language. As written, it permits NO exceptions or "reasonable restrictions". Period.

Why?

There's an important characteristic of the people's right to keep and bear arms, which might explain why the 2nd is written without qualifications. It says "Since X is so, the people's RKBA cannot be taken away or restricted." Unlike the 4th, 5th, and 13th, the 2nd does NOT say "except by due process of law". And it does NOT say "unless the person is a certain type of extreme criminal", and etc.

To make up an extreme example, suppose some guy goes into a restaurant, pulls out a gun and blows away half a dozen people. The cops show up and surround him, and one cop says, "Give me your gun right now." The guy says, "Sorry, the 2nd amendment says my right to KBA cannot be taken away or restricted, PERIOD, so you have no authority to make me give you my gun." And this with gunsmoke in the air and bodies bleeding on the floor next to him.

Many of the people who wrote the 2nd were lawyers, and knew well the effect that certain words have when included, or omitted, from legislation. And yet they chose to omit ANY exceptions to the ban on government taking people's guns away. Strictly speaking, that would even include the extreme example I just gave: Cops can't take away the gun of a murderer at the scene of his crime.

Many people use this as the reason why the 2nd amendment MUST have been intended to implicitly allow for exceptions: It's impossible that the Framers could have intended for murderers to retain their weapons immediately after committing their murders. Yet a truly strict reading of the 2nd, forbids any govt official (including police) from taking the mass-murderer's gun.

So what could the Framers' intention have been, in omitting any exceptions?

Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons. And the foremost reason it's forbidden, is so that the people can use them against government itself, if/when the government becomes tyrannical. And the Framers knew that if government were given even the tiniest exception, there would be a tendency to turn that tiny loophole into more and more twisted, warped excuses to take guns away anyway, far beyond the "reasonable" exception of being able to take away a mass-murderer's gun at the scene of his crime.

The only way the Framers could find of avoiding the far-greater evil of a tyrannical government disarming its people, was to make NO EXCEPTIONS WHATSOEVER to an explicit ban on government disarming even one of us.

So where does that leave us on the question of the cops taking the mass murderer's gun at the restaurant?

It's inconceivable that the Framers would want the murderer to retain his gun even as they haul him off to jail.

But it's VERY conceivable that the Framers would want government to have NOT THE SLIGHTEST EXCUSE, NO MATTER HOW "REASONABLE", to take away the weapons of their populace in general. Because the slightest excuse, the tiniest exception, could be stretched into a huge loophole. And the Framers regarded a government that could somehow finagle its way into disarming its own people, as a far greater threat than the occasional murderous nutcase in a restaurant.

And history has proven the Framers right, time and again.

Should we amend the Constitution, changing the 2nd amendment to officially empower government to take away the right of, say, murderers, to own and carry guns?

Some would think it's obvious that we should, to make the law "really" right. But consider the potential cost.

My own guess is, the Framers intended for an exception to be made in such a case... but not by any government official. The restaurant mass-murderer tells the cops they have no power to take his gun. The cop responds by cracking the guy's skull, hard, and taking away his gun anyway. Did the cop violate the strict words of the 2nd amendment by doing so? Yes. But is there a jury in the world that will convict the cop for it? Probably not.

The Constitution puts the ultimate fate of anyone accused of breaking laws, into the hands of a JURY. A groupd of the accused guy's own peers, people pretty much like him. NOT government officials. And that was so the only people who can find, or even invent, exceptions to the law, are ordinary civilians: the ones on the jury. Today this is called "Jury Nullification". And I suggest that this is exactly what the Framers had in mind when the wrote the 2nd amendment with NO exceptions and NO "reasonable restrictions" on guns and other such weapons.

The 2nd amendment is a restriction on GOVERNMENT. But not on a jury.

So when the murderer from the restaurant brings charges against the cop for taking away his gun, the cop gets a chance to explain to a JURY why he did it. His explanation will probably take less than ten seconds. And the jury (whose members wouldn't be there if they hadn't been accepted by the cop) will certainly decide that the cop should not be found guilty of violating the clear language of the 2nd, in that case. Because the JURY (and nobody else) has the power to make "reasonable exceptions".

But at the same time, when government makes the slightest move toward disarming even a little of its populace by legislation, they can be met with the absolute, no-exceptions ban codified by the 2nd amendment. No loopholes, no "reasonable exceptions", no nothing. ANY legislation that infringes on the absolute right to KBA, is unconstitutional. Period.

I suspect that's how the Framers expected this particular law to work.

Can I prove it? No. When I meet one of the Framers, I'll ask him. Until that time, I can only guess, based on the records they have left behind... and the fact that they put NONE of the usual qualifiers, into the 2nd amendment. If anyone can come up with a better guess, I'd be happy to hear it.

 

[Little-Acorn]

The only person who has said we can arm prisoners, is SwimExpert. I wouldn't classify him as a retard. Just as a coward who says silly things and then calls names and runs away when you address what he said.

I just give as good as your worth. You make a thread spouting stupidity, I'll give you your own stupidity back in the form of your own demented rationale.

See? He still hasn't even read what I wrote, about his latest whine.

 

[SwimExpert]

The only person who has said we can arm prisoners, is SwimExpert. I wouldn't classify him as a retard. Just as a coward who says silly things and then calls names and runs away when you address what he said.

I just give as good as your worth. You make a thread spouting stupidity, I'll give you your own stupidity back in the form of your own demented rationale.

See? He still hasn't even read what I wrote, about his latest whine.

I read it.

You're an idiot.

We've already had this conversation.

 

[C_Clayton_Jones]

As you can see, when liberals want to start restricting people's right to carry a gun, they start talking about

(a) what courts say,
(b) what Federal law says,
(c) what "everybody knows", or
(d) what "is only common sense".

But they carefully avoid talking about what the Constitution says. Even though it supersedes all the rest.

Or they simply announce the Constitution doesn't really mean what it says. But somehow the rest DO mean it.

There's a reason for their oh-so-careful evasion. They know they are wrong, and the Constitution flatly forbids what they want.

Their evasions are simply a means to justify violating it.

There is no 'evasion,' liberals are correct and conservatives are wrong, at least those on the right who adhere to this 'literalist' nonsense regarding the Constitution.

When addressing the issue of any government restriction of citizens' rights, what the courts say and what Federal law says is exactly the context in which such a discussion should take place.

The courts decide what the Constitution means, the validity of laws and measures seeking to place restrictions on citizens' rights are judged in accordance with Constitutional case law, where measures repugnant to that case law are invalidated by the courts – this is settled, accepted, and beyond dispute.

Like other rights the Second Amendment right is not absolute, it is subject to reasonable restrictions by government, and what is reasonable is determined by relevant case law and precedent, consistent with the Constitution and the original intent of the Framers.

 

[Centinel]

I already told you, it flows from the commerce and necessary and proper clauses. See, that would make total sense if you actually understood how these parts of the constitution work. Well--maybe that's a bit unfair. I don't think anyone fully understands how the commerce clause works. Nevertheless, you're operating in an expanse of mindless and willful ignorance and can't even begin to scratch the surface.

Okay, let's start with the necessary and proper clause:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

It allows making laws that exercise the foregoing powers. It does not allow any old law that congress feels like.

So that having been dispensed with, let's look at the commerce clause:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

Now are you trying to tell me that possessing a gun is commerce? And that it is commerce among the several states? Seriously?

As it has already been pointed out to you, this is ignorant and wrong.

That you continue to pursue an invalid 'argument' devoid of merit indicates that you're incapable of discussing this issue in a factual, intelligent manner.

If you think my argument is faulty, please point out the incorrect premise:

When the states established the constitution the did not give the union plenary power but gave it only a limited and enumerated set of powers. Do you disagree?

Congress was given the power to regulate commerce with foreign nations, with the indian tribes, and among the several states. Do you disagree?

Possession of a firearm is not commerce among the states. Do you disagree?

 

[SwimExpert]

If you think my argument is faulty, please point out the incorrect premise

You should start with how you went from "gun control legislation" to "possessing a firearm" as if the two were interchangeable. But I suspect it was an intentional act of stupidity anyway, so why bother, right?

 

[Centinel]

If you think my argument is faulty, please point out the incorrect premise

You should start with how you went from "gun control legislation" to "possessing a firearm" as if the two were interchangeable. But I suspect it was an intentional act of stupidity anyway, so why bother, right?

Gun control legislation criminalizes the possession of certain firearms by certain people. That's what gun control legislation is.

So are saying that possession of a firearm is commerce? Is that the basis of your argument?

 

[SwimExpert]

Gun control legislation criminalizes the possession of certain firearms by certain people. That's what gun control legislation is.

No, gun control legislation takes many forms. For example a ban strictly on manufacturing certain weapons would still be gun control legislation.

 

[Centinel]

Gun control legislation criminalizes the possession of certain firearms by certain people. That's what gun control legislation is.

No, gun control legislation takes many forms. For example a ban strictly on manufacturing certain weapons would still be gun control legislation.

None of congress' enumerated powers would allow them to enact such a law.

 

[C_Clayton_Jones]

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” The Federalist No. 78

Settled, accepted, and beyond dispute.

The courts provide consensus as to what the Constitution means, resulting in a comprehensive understanding of what laws are just and valid and what laws are not, as expressed by the will of the people, consistent with the Constitution and its case law.

The people have expressed their will through the political process and their lawfully elected representatives that felons shall not take possession of firearms, a reasonable restriction on the Second Amendment right, consistent with Second Amendment jurisprudence.

The people are likewise at liberty to repeal such a prohibition through the political process, or challenge the law authorizing the prohibition in Federal court.

 

[C_Clayton_Jones]

LITTLE-ACORN SAID:

"Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons. And the foremost reason it's forbidden, is so that the people can use them against government itself, if/when the government becomes tyrannical."

Wrong.

The Second Amendment acknowledges an individual right to possess a firearm pursuant to the right of self-defense, unconnected with militia service (see DC v. Heller)

Government is prohibited from taking away people's weapons consistent with Second Amendment jurisprudence, which authorizes government to designate prohibited persons, forbid them from possessing firearms, consistent with the will of the people.

And should the people err and enact a measure not consistent with Second Amendment jurisprudence, then those so adversely effected are at liberty to file suit and seek relief in Federal court.

Moreover, there is nothing in the text, history, or case law of the Second Amendment which 'authorizes' the people to 'take up arms' against a government lawfully and Constitutionally manifested – Federal, state, or local – for no other reason than a minority of the people subjectively perceive government to have become 'tyrannical.'

There is nothing in Federal law which authorizes this, no doctrine or precedent abrogating the rights enshrined in the First Amendment, recognizing the right of the people to petition the Government for a redress of grievances through either the political process or legal process; indeed, the Second Amendment doesn't 'trump' the First, if the majority of the people are satisfied with their government, and confident that their civil liberties are not at risk, any act of violent insurrection by the minority against government would be unwarranted and illegal, in no way 'condoned' by the Second Amendment.

 

[Little-Acorn]

There is no 'evasion,' liberals are correct and conservatives are wrong, at least those on the right who adhere to this 'literalist' nonsense regarding the Constitution.

When addressing the issue of any government restriction of citizens' rights, what the courts say and what Federal law says is exactly the context in which such a discussion should take place.

The courts decide what the Constitution means, the validity of laws and measures seeking to place restrictions on citizens' rights are judged in accordance with Constitutional case law, where measures repugnant to that case law are invalidated by the courts – this is settled, accepted, and beyond dispute.

Like other rights the Second Amendment right is not absolute, it is subject to reasonable restrictions by government, and what is reasonable is determined by relevant case law and precedent, consistent with the Constitution and the original intent of the Framers.

A typical example of "The Constitution doesn't mean what it says" evasion.

1.) Some liberals try to pretend they can't understand its plain language.
2.) Then they pretend that they need some "higher authority" to tell them what it says.
3.) Then they try hard to stack the deck of that "higher authority", with disgruntled people like themselves who also don't like what the Constitution says.
4.) Then when that "higher authority" comes up with a silly "interpretation" that is nothing like what the Constitution says, the liberals scream, "There! See? See? I TOLD you that's what it really means! Signed, settled, case closed! PLEASE don't keep arguing that this bears no relation to what the Constitution actually says! We want this debate to be over RIGHT NOW, now that someone said what we wanted!"

These silly people actually try to substitute this wishful thinking for "debate".

 

[Little-Acorn]

LITTLE-ACORN SAID:

"Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons. And the foremost reason it's forbidden, is so that the people can use them against government itself, if/when the government becomes tyrannical."

Wrong.

The Second Amendment acknowledges an individual right to possess a firearm pursuant to the right of self-defense, unconnected with militia service (see DC v. Heller)

As usual, the liberal simply declares that what the Constitution says is wrong, without trying to identify what part of the document means anything other than what it says.

Then they examine what the courts say, carefully avoiding any examination of what the Constitution itself says.

These silly, futile people are SO predictable.

 

[Little-Acorn]

When the Framers wrote the Bill of Rights, they made it a document that mostly names certain things the government is forbidden to do.

And when they wanted to make exceptions to the rules they were laying out, they wrote them explicitly into the amendment.

The 4th amendment bans searches and seizure, but not all of them: It specifically names unreasonable searches and seizures.

The 5th amendment says that no one can be jailed or executed etc... but makes an exception: unless there is "due process of law".

Even the 13th amendment (written later) that prohibits slavery or involuntary servitude, makes an exception: "except as a punishment for crime whereof the party shall have been duly convicted."

But when they wrote the 2nd amendment banning government from infringing on the people's right to own and carry weapons, they carefully did not write ANY exceptions into it. Even though they put exceptions into other passages.

Clearly the Framers (and the people who ratified the BOR) intended that there be NO exceptions. Since the right to KBA is necessary for security and freedom, the govt is forbidden to take away or restrict people's guns and other weapons. No exceptions.

Of course, there are other entities that aren't part of any government, that can rule that someone's gun be taken away, literally on a case-by-case basis. I named one in the OP.

Could it be that the Framers thought this adequate to deal with criminals, law enforcement, and the conflicts between the two?

They likely thought that giving government ANY power to take away people's guns, would create a loophole that corrupt government (such as that encouraged by the liberals on this board) wouldn't hesitate to take advantage of, and start disarming the law-abiding populace as well as the criminals. History shows this to be grimly right.

 

[Centinel]

Government is prohibited from taking away people's weapons consistent with Second Amendment jurisprudence, which authorizes government to designate prohibited persons, forbid them from possessing firearms, consistent with the will of the people.

The constitution does not grant congress the power to designate prohibited persons and forbid them from possessing arms.

 

[Bob Blaylock]

I already told you, it flows from the commerce and necessary and proper clauses. See, that would make total sense if you actually understood how these parts of the constitution work. Well--maybe that's a bit unfair. I don't think anyone fully understands how the commerce clause works. Nevertheless, you're operating in an expanse of mindless and willful ignorance and can't even begin to scratch the surface.

By that logic, it is difficult to imagine any power that the federal government could not claim, by some connection to the Commerce Clause; and the Tenth Amendment would be rendered meaningless. That the Tenth Amendment was ratified as part of the Bill of Rights would seem to indicate that the great men who wrote the Constitution did not intend for the Commerce Clause to be used as such a general catch-all for any power that the federal government wanted to claim.

 

[Centinel]

I already told you, it flows from the commerce and necessary and proper clauses. See, that would make total sense if you actually understood how these parts of the constitution work. Well--maybe that's a bit unfair. I don't think anyone fully understands how the commerce clause works. Nevertheless, you're operating in an expanse of mindless and willful ignorance and can't even begin to scratch the surface.

By that logic, it is difficult to imagine any power that the federal government could not claim, by some connection to the Commerce Clause; and the Tenth Amendment would be rendered meaningless. That the Tenth Amendment was ratified as part of the Bill of Rights would seem to indicate that the great men who wrote the Constitution did not intend for the Commerce Clause to be used as such a general catch-all for any power that the federal government wanted to claim.

And there's also the fact that the acquisition, keeping, and bearing of arms isn't commerce among the several states. No more than a horse is a fish.

 

[SwimExpert]

Gun control legislation criminalizes the possession of certain firearms by certain people. That's what gun control legislation is.

No, gun control legislation takes many forms. For example a ban strictly on manufacturing certain weapons would still be gun control legislation.

None of congress' enumerated powers would allow them to enact such a law.

It's called the commerce clause. How many times does it have to be said for you to get it through your thick skull?

 

[Little-Acorn]

It's called the commerce clause. How many times does it have to be said for you to get it through your thick skull?

Once little swimexpert is carefully ignoring previous posts that have already debunked his wishful thinking.

He seems to do that quite a lot.

 

[TheCrusader]

It's called the commerce clause. How many times does it have to be said for you to get it through your thick skull?

Once little swimexpert is carefully ignoring previous posts that have already debunked his wishful thinking.

I don't even have to read the argument to know how dumb you are. The FEDs can regulate commerce. If a gun were made with materials only within that state, and sold only to people within that state, who would NEVER transport them outside that state.

THEN and ONLY THEN would the Feds not have a say in firearms.