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NJ Court rules that Americans have no right to buy a handgun

Discussion in 'U.S. Politics' started by Little-Acorn, Oct 31, 2009.

  1. Little-Acorn

    Little-Acorn Well-Known Member

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    The battle goes on. The gun-rights-haters have lately taken to referring to past court cases rather than to the fundamental laws, especially the 2nd amendment itself and recet cases that address it directly. Who can blame them, when the law so clearly goes against what their agenda demands?

    In modern language, the 2nd amendment says, "Since an armed and capable populace is necessary for freedom and security, the right of ordinary people to own and carry guns and other such weapons cannot be taken away or restricted."

    ----------------------------------------

    http://www.cbsnews.com/blogs/2009/10/28/taking_liberties/entry5440647.shtml

    October 28, 2009 7:50 PM

    N.J. Court Says Americans Have No Right To Buy Handguns

    A New Jersey appeals court has concluded that Americans have no Second Amendment right to buy a handgun.

    In a case decided last week, the superior court upheld a state law saying that nobody may possess "any handgun" without obtaining law enforcement approval and permission in advance.

    That outcome might seem like something of a surprise, especially after the U.S. Supreme Court ruled last year in the D.C. v. Heller case that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation."

    But New Jersey Appellate Division Judge Stephen Skillman wrote on behalf of a unanimous three-judge panel that Heller "has no impact upon the constitutionality of" the state law.

    That's because, Skillman said, the Supreme Court did not strike down the District of Columbia's de facto handgun ban but instead simply ordered the city to issue a permit. In other words, while Americans may have the right in general to possess arms, the exact contours of that right have not been mapped, especially as the Second Amendment applies to state laws. (The court's majority opinion last year said: "We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement.")

    Look for the Supreme Court to revisit this question in a few months when it hears a case called McDonald v. Chicago. It's a constitutional challenge to Chicago's restrictive gun laws, which prohibit anyone from possessing firearms -- even in their homes -- "unless such person is the holder of a valid registration certificate for such firearm."

    New Jersey's laws are similar. They say: "No person shall sell, give, transfer, assign or otherwise dispose of, nor receive, purchase, or otherwise acquire a handgun unless the purchaser, assignee, donee, receiver or holder... has first secured a permit to purchase a handgun as provided by this section."

    Another section dealing with licensing says: "No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth." Some of the exceptions involve criminal records, for instance.

    What prompted the current lawsuit was a request for a handgun purchase permit that Anthony Dubov submitted to the East Windsor Chief of Police. The police chief denied Dubov's request without giving any reason, in what the appeals court later ruled was a violation of state law. The current East Windsor police chief is William Spain.

    Oddly, the trial judge upheld that denial, without asking the police chief to testify to explain himself (another violation of state law) and after taking the unusual step of contacting Dubov's previous employers to ask about his background.

    Dubov's attorney, Michael Nieschmidt, argued that the state licensing scheme was unconstitutionally vague and therefore violated the Second Amendment.

    Skillman concluded that while the Second Amendment doesn't apply, state law and precedent nevertheless required that Dubov receive more due process than he did. The appeals court wrote: "Accordingly, the trial court's affirmance of the police chief's denial of appellant's application for a firearms purchase permit is reversed, and the case is remanded for an evidentiary hearing in conformity with this opinion."

    --------------------------------------------------------------------------------
    Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com
     
  2. Hanno

    Hanno New Member

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    It's squalid making people do tricks for metal and plastic. I mean I'd be embarrassed to have my name on a law about, you know inauspicious things like low-flow toilets, coily-lightbulbs, or dirty cartoons - but that's what it boils down to when they're spewing platitudes about how 'we must work together courageously to end human suffering'.
     
  3. Richard Savage

    Richard Savage Member

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    The Second Amendment does not grant any rights. See United States v. Cruikshank, 92 U.S. 542 (1875). The problem, in a nutshell, is that the prohibition against “infringement” does not preclude “regulation.” Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute. As Justice Antonin Scalia stated for the majority in District of Columbia v. Heller:

    ‘Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. (Citation Omitted) For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. (Citation Omitted) Although we do not undertake an exhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (FN 26 Omitted)

    ‘We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (Citations Omitted)’ District of Columbia v. Heller, 554 U.S. ___ (2008).
     
  4. Hanno

    Hanno New Member

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    Can regulation become infringement? Apparently in DC it did. I mean, if state sales tax were to be applied to durable goods including guns but not unprepared food or some such thing, god bless, but laws being specific to weapons of the hand is about when I get the 'BS' flag ready for tossing.
     
  5. Little-Acorn

    Little-Acorn Well-Known Member

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    Can you regulate without infringing?

    No.
     
  6. PLC1

    PLC1 Moderator Staff Member

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    Now, there's an interesting rewrite of the second Amendment. The original doesn't mention guns, but it does mention a "well regulated militia".

    I suppose if it doesn't say what we want it to, it's time to rewrite it.
     
  7. Richard Savage

    Richard Savage Member

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    All rights exist only by law.
     
  8. PLC1

    PLC1 Moderator Staff Member

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    So, we weren't really endowed with them by our creator?
     
  9. Richard Savage

    Richard Savage Member

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    God-given rights are only good in heaven; in this world, one need have recourse to the law.
     
  10. AtheismIsReality

    AtheismIsReality New Member

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    Arm also didn't mean just "guns". It meant any weapon. The whole idea behind the 2nd Amendment came from the states being able to repulse the central army.

    The government infringes on the rights of the people to own explosives, another arm, but you never those who claim to support the 2nd Amendment get outraged about that.
     
  11. Little-Acorn

    Little-Acorn Well-Known Member

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    Not a rewrite, just a translation. The meaning is exactly the same as the original.

    "Arms" includes guns.

    Are there any other things you already know, that you would like me to explain to you as though you didn't?

    Why?

    Yup, meaning all able-bodied citizens capable of using weapons to defend their homes. "An armed and capable populace".

    Leftist gun-rights-haters have been trying to do that for decades, if not centuries. They are having less and less success, as people begin to doubt their word more and more.
     
  12. PLC1

    PLC1 Moderator Staff Member

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    The meaning is the same as your interpretation of the original.


    Yes, arms do include guns. All guns are arms, but not all arms are guns. If the right to bear arms is absolute, then it must include more than just guns. It must include all arms.

    Nope.


    Then why does it say "militia"? Why not "an armed and capable populace"?

    So, you're going to do them one better and do a rewrite of your own? Does that make you a leftist gun rights hater too?

    For what it's worth, I'm not against people owning guns, as long as they're responsible adults with no criminal history. What I'm against is rewriting the Constitution. The Constitution speaks of arms and a well regulated militia. It doesn't say that every redneck in the country has a right to have an Uzi under his bed, ready for Armageddon.
     
  13. Richard Savage

    Richard Savage Member

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    There are no absolute rights.
     
  14. Little-Acorn

    Little-Acorn Well-Known Member

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    http://www.firearmsandliberty.com/unabridged.2nd.html

    THE UNABRIDGED SECOND AMENDMENT

    by J. Neil Schulman

    If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right ? And if you wanted to know about desert warfare, the man to call would be Norman Schwarzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution ?

    That was the question I asked A.C. Brocki, editorial coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus."

    A little research lent support to Brocki's opinion of Professor Copperud's expertise.

    Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a a distinguished 17-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.

    He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus," has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publisher's Humanities Award.

    That sounds like an expert to me.

    After a brief telephone call to Professor Copperud in which I introduced myself but did not give him any indication of why I was interested, I sent the following letter:


    "I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

    "The text of the Second Amendment is, 'A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'

    "The debate over this amendment has been whether the first part of the sentence, 'A well-regulated Militia, being necessary to the security of a free State', is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, 'the right of the people to keep and bear Arms, shall not be infringed.'

    "I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."


    My letter framed several questions about the test of the Second Amendment, then concluded:


    "I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance."


    After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the follow analysis (into which I have inserted my questions for the sake of clarity):



    --------------------------------------------------------------------------------

    [Copperud:] "The words 'A well-regulated militia, being necessary to the security of a free state,' contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia.

    "In reply to your numbered questions:

    [Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

    [Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

    [Schulman:] "(2) Is 'the right of the people to keep and bear arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"

    [Copperud:] "(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

    [Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?"

    [Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

    [Schulman:] "(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear arms,' or is such right deemed unconditional by the meaning of the entire sentence?"

    [Copperud:] "(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."

    [Schulman:] "(5) Which of the following does the phrase 'well-regulated militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"

    [Copperud:] "(5) The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."

    [Schulman:] "(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated."

    [Copperud:] "To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary tot he security of a free state, the right of the people to keep and bear arms shall not be abridged.'

    [Schulman:] "As a 'scientific control' on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,

    "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.'

    "My questions for the usage analysis of this sentence would be,

    "(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

    "(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' _only_ to 'a well-educated electorate' -- for example, registered voters with a high-school diploma?"

    [Copperud:] "(1) Your 'scientific control' sentence precisely parallels the amendment in grammatical structure.

    "(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation."

    Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

    So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all governments formed under the Constitution from abridging that right.

    ---------------------------------------------

    In modern language, the 2nd amendment says, "Since an armed and capable populace is necessary for freedom and security, the right of ordinary people to own and carry guns and other such weapons cannot be taken away or restricted."
     
  15. AtheismIsReality

    AtheismIsReality New Member

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    Doesn't Professor Copperund know that at the time of the writing of the Constitution that American English had not been standardized as it is today?

    For one, all the commas in the Amendment are meaningless in grammatical sense. Commas were used at the time to indicate pauses in speaking.

    One other note, the 2nd Amendment does not apply to the States.

    I only mention it because really what the discussion is about is the spirit of the laws.
     
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