(I edited, and some stuff pertains to your reply)

Regarding well regulated, here's the sauce :
http://www.constitution.org/cons/wellregu.htm

Keep in mind that the 2nd amendment is 2 part.
1st the motivation for why the rule exists, 2nd the rule.

The rule exists, whether or not the motivation is provided (and it's nice of them to provide context - but not necessary).

Even if regulation was meant in the modern sense, it would not change the fact that the rule does not depend on the motivating factors.

But if you insist on motivational prerequisite, here's Hamilton regarding individual right to bear :

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "
[etc]

(That last sentence - there's your training requirement, tee hee. Not only that, but that they should assemble people 1-2 times a year to make sure that everyone is armed and equipped. That's more than an individual right to bear, that's an individual requirement to bear. Let's just be happy with it being a right.)


Laws are supposed to be updated by new laws via representative legislators (who may need to be coerced via protest facilitated by freedom of assembly).
Or challenged by juries (i.e. citizens, i.e. members of the state) via jury nullification (i.e. direct state democracy). That's why there are juries. You need direct state involvement so that the legal system can not run amok independent of state sanction. It's not just for some group consensus.
The system was architected to give the state influence, so that government can't run off and act in an independent non-democratic manner.

-scheherazade

According to separation of powers... and the roles defined for each branch.

Parsing words is fine.
Persons vs people is moot. People = multiple persons. Unless your intent is to give a right to a single individual, you're always dealing with people.

The flip side is that if the 2nd amendment only protects militias and their armament, then it protects militias. So you are free to start a militia and get armed.
(Again, by 1791 parlance, well regulated meant well adjusted. There is no prerequisite for government regulation re the 1791 English it was written in.).


"well, they wrote X, but clearly the intent was to also cover Y and Z" doesn't work when :
- Y and Z did not even exist at the time of X.
- Y and Z did exist, and the writers chose not to include them.
In either case, you end up legislating from the bench.

It's a simple matter to make a new law covering Y and Z. There is no need for a court to jump the gun. Just find the case by the classic scope, and inform the legislature of the circumstances so they can take it into consideration. Heck, there is no guarantee that the legislature even wants the scope expanded. They could even want it contracted.
If it becomes a complicated matter with parties arguing - then it clearly needs debating and would have been inappropriate to decide elsewhere.

As a republic, the people are the state, and the state has all authority. The government exists strictly to record, execute, and enforce the state's will, by the state's authority (govt. has no authority inherent to itself).
The legislature is the channel that codifies the state's will. No other functional element serves that purpose. To codify something, it must go through the legislature. Else it does not carry state authority.

-scheherazade

The only textual interpretation they should do is to understand the meanings behind the words.
(Like the subject at hand : what was the functional definition of the words "well regulated" in 1791.)

The act of deciding "well, they wrote X, but we think they would have written Y had they thought of these new circumstances, so we're going with what we think" is taking things too far. (eg. concepts like : surreptitious telephone wiretap law applying to overt public video/audio recording)

The legislature exists for a reason. Writing/Updating laws is what they are here for. Let them do their job and legislate new laws that alter the scope/definition of old ones.


The problem with case law is that there is no Federal/State/Country/City LIS system where you can just search for whatever laws apply to whatever activities. You would need access to legal databases, like say LexisNexis. Even lawyers don't read case results directly to know what the decisions mean, they use summarizing services that outline the fallout of court decisions in terms of enforcible concepts. Ironically, these summaries are copyrighted, and the public at large is not allowed to know what those enforcible concepts are without paying.

IMO, I think eminent is easiest confused with emanating. Because the concepts behind them are so similar. One sticks-out-of, the other oozes-out-of. If you said that 'an eminent thing emanates from something', you would be so so close to literally correct.

-scheherazade

The role is to interpret whether or not actions are in compliance with the written law - not to interpret new meanings/definitions of the law.

Changing definitions within a law alters the law, rewrites it, which makes it legislative activity. That's outside of judicial scope.

You can summarize the thought pattern as : "We know the law says this one thing, but we think this other thing should apply, so instead of waiting for a change to the law [so that it will apply], we will just say it applies already, even though it's not written."

It's sheer laziness, complacency, and acceptance that allows that sort of activity to be. It also creates a minefield of possible offenses that are not created by elected representatives, and are not documented in any way that would allow a person to avoid violation.




You are forgetting the current laws that restrict gun ownership. Not anyone can own a gun - even though the 2nd makes no exceptions. Laws that violate constitutional law are left to stand all the time, simply because people are ok with it.



The constitution also denies the government the authority to limit assembly - but that freedom has been interpreted to be secondary. It is in practice restricted by a permit process that makes any non-approved assembly subject to government disbandment.
It's supposed to allow people (i.e. the state) to communicate, organize, and form a disruptive group that is able to cause enough disruption to the government that the state can force a disobedient government to behave - without having to resort to violence.
But, because people are universally inconvenienced by folks that are protesting about things they don't care about, they would rather the government keep those folks out of their way. So freedom of assembly goes to the wayside.


Basically, the 'system' takes the law only as seriously as is convenient. When it's useful to be literal, it's treated literal. When it's useful to be twisted, it's twisted. It's just whatever is useful/convenient/populist/etc to the people executing the process.




Eminent is not a word you would use on today's parlance to say that something is obvious.

Ask most people what eminent domain is, and they will recite a legal concept. Ask them what the words themselves mean, and most will draw a blank. Few will say 'it is a domain that sticks-out'.

The point was just to illustrate how things change regarding how people express themselves. It's not strange to hear someone describe something as 'well adjusted'. But if they said 'well regulated' instead, you would think they mean something else. You wouldn't think that they are just speaking in 1700's English.

Imagine writing a law that states that only 'well adjusted' people are allowed to drive cars. Then imagine 200 years from now, 'adjustment' is a reference to genetic engineering. You'll end up with people arguing that only well genetically engineered people can drive.

-scheherazade

The supreme court is in a position to take liberties because there is no court above it to which one can appeal.

Courts have a mandate to judge compliance with the law - not to redefine the law (that's the legislature's role).

If due process was followed, courts would find cases like 'yelling fire' as protected, and refer the law to the legislature to exempt-from-1st-amentment-protection any inappropriate behaviors via new written constitutional law.

As it stands, there are many judicial opinions that are enforcible via the legal system, that are never written down as law by the legislature.

Again, it's a matter of what people are willing to enforce. The courts are just people. The law is only as important to them as they will it to be. If everyone is on board with twisting the rules, then that's the norm.

(aside : Yelling fire is a stupid example. If you did it, everyone would look around, and then look at you, and would be like "wtf are you talking about?")



Words are written to convey meanings. They don't exist for their own sake. The 1791 meaning of "well regulated" is similar to today's meaning "well adjusted". It would be best summarized as "orderly" or "properly functioning". It has nothing to do with government regulation.

Similarly, "eminent domain" means "obvious domain" (obvious because republic, and every citizen (i.e. statesman) owns the country collectively, and you never actually owned your land, you only had a title to be the sole user).
Sounds weird by todays' standards, but back then the norm was that regular people had nothing and the crown (and its friends) owned everything. Republic sounded quite progressive at the time. Remember, the U.S. revolution was just prior to the French revolution. Kingdoms were the norm.

Sounds a bit different when translated from 1700's english to 2000's english.

-scheherazade

For obvious reasons. People that want something banned, don't want statistics showing that shows it doesn't kill. And people that don't want something banned, don't want statistics showing that it kills people.

Bed manufacturers wouldn't want the CDC studying beds - because 400+ people die each year by falling out of bed. Windows tint manufacturers would have no problem with the CDC studying the effects of window tint.
Combine that with sufficient political influence, and you get either a ban or a mandate.

Pretty much most things you encounter in the day have some lethality rate to them, just most don't have such an effective organization defending their use. Nor do most draw as much attention. Not much noise about the lethality of bad bread, or errors in GPS maps, or whatever else gets people killed each year. But if there was noise, and there was political strength behind it, you'd be seeing bans on CDC studying GPS map errors.

-scheherazade

Were there [successful] complaints at some point during the civil rights movement about black defendants being tried by all white juries? I have some vague memory about that being 'a [legal] thing' at some point. I could be imagining it. In any case, it came to mind when watching the first part of the video, so I wonder if there's some precedent in place for what dollar general is claiming.

-scheherazade

There are no exceptions provided for in the text of the 1st amendment.

Any exceptions [violations] that exist are product of willful neglect enshrined in precedent. The populism of said violations is what preserves them against challenge. The constitution (and law in general) is just words on paper. The buck stops at what people are willing to actually enforce.

-scheherazade

Yeah, modern-combat games are always pitting you against a caricature of the current political boggyman.

Even if it's not intentional, it's still manufacturing consent regarding political support for military interventions.

That said, a game's a game. COD was fun. Particularly 4 and 5.

-scheherazade

True. You'll have to ban guns to see more bomb attacks.
Guns are the path of least resistance for anyone who wants to make a mess.

-scheherazade

The crux of the matter is 'shall not infringe' vs shall not infringe - unless <name exception>'.

If you obey that law literally (constitution is law after all), then most prerequisites to gun ownership are non-starters.

Historically, legislators break that [constitutional] law here and there, but the absoluteness of the statement makes it hard to put up much in the way of hurdles.

As an aside, statements in the bill of rights are terse and without exception for a reason. When you enshrine exceptions, you allow for recategorization of legal constructs as subsets of those exceptions. Which in effect neutralizes the protection, and makes it meaningless.

So, if there was "freedom of speech - unless it causes distress" : then anything that people want to silence would simply be judged as distressing, and that would be the end of freedom of speech (you'd only need people hearing the case to consider it distressing in their opinion). The lack of exceptions empowers people to more easily argue against laws that infringe on those rights - given that there is no real 'easy-out' for infringing laws.

The NRA is the force that guards the 2nd amendment, backed by the people that want it protected (gun owners and gun industry alike). It's their place to push for the strongest 2nd amendment possible. That's their rightful purpose. Other entities can argue against them. We have an adversarial legal system, and that's the nature of the beast.

I'm confident that if there was an amendment protecting the right to drive a car on public roads, then driver's ed requirements would be under legal challenge, too.

-scheherazade

Heh, there's so much stuff on the left and right that I never hear a peep about in mainstream media. I'm unfortunate enough to have gotten my email into mailing lists on both sides, and I have to delete mountains of bitching political emails every day (and half of it is begging for donations while demonizing the other side).

Like I said, I have nothing against training.
But with 100 million people having access to arms, even if well trained, I would not count on zero accidents. Just being pedantic. I do agree with you in general.

More power to ya'.

-scheherazade

NRA isn't quiet about it. It's a matter of which media you look at. In some media, it's ubiquitous. In other media, crickets.
Reading all sorts of media, you get to see the insularity of segments of society... each with its own concerns, and each largely ignorant of the other.

Improper securing is probably the big one. The thing I hear the most of is people handling/cleaning an 'unloaded' gun and not realizing they have a chambered round. This is why many public ranges or shooting events require a chamber flag. Usually, the owner will handle a firearm a good amount after shooting - and odds are they're the one that gets burned.

My impression is that kids get hurt messing with the prototypical 'night stand gun' or 'closet gun' - stuff parents buy for home protection, shove in a drawer, and forget about. Something that would be easily fixed with one of these : http://www.cabelas.com/product/SENTRY-DIGITAL-PISTOL-SAFE/1955170.uts?productVariantId=4096762&WT.tsrc=PPC

-scheherazade

You can. That's actually the right way to do it. In the strictest sense, the only legal way to enact gun control.

(Although, IMO, a short sighted change... given millennia of repeating human history to show us what the future eventually holds.)

-scheherazade

18 USC 922 :
- Is a danger to himself or others
- Lacks mental capacity to contract or manage his own affairs
- Is found insane by a court in a criminal case
- Is found incompetent to stand trial, or not guilty by lack of mental responsibility pursuant to articles 50a [blah blah blah]

The second line item is what applies to persons assigned a fiduciary due to a failure to manage their financial affairs (which is often elderly people).
This is why gun rights groups are crying about new measures to link medicare to the background check system.

But generally, yes, you have to do something to demonstrate that you're mental, in order to be found mental.

Gun registration is not required to know who has guns. The background check tells LEO which dealer ran it and about who. They go to the dealer and acquire the sale forms (retained at dealer by law) regarding that person.

The purpose of registration is not to know who has guns - that part is already known. Registration makes it a legal requirement to demonstrate custody. If you can't present a registered firearm, you're a criminal. Hence you have no ability to hide a registered firearm, because the act of hiding it sends you to jail. A large subset of gun owners have firearms strictly for "SHTF" (shit hits the fan). They squirrel them away with some food, and have them 'just in case' the world goes tits up. That's the segment of gun owners that drive against gun registration. They don't want their emergency kit confiscated by the government during a disaster (like happened during Katrina), and they don't want to go to jail for hiding it either.

In general, personally, I have nothing against training.
Ironically, AFAIK, LEO are the biggest offenders when it comes to accidental discharge (which makes sense, given that they point guns at people more often than regular folk, so their accidents are deadlier.).
(Police also commit [non-police-work-related] murder at a rate 8 x that of the general population.)
Training is an easy low hanging fruit to grab on to when looking for 'something to do [legislatively]', but in practice it isn't as significant as people would imagine. People that like to shoot will be well practiced, and are overall safe. Folks that bury their guns in a closet for emergencies won't be well practiced, but won't normally be in a position of opportunity to make mistakes.
Folks that legally concealed carry (hence are managing a firearm throughout the day) require a license that requires training in order to acquire. Granted, it's really not a hard test. It's driver's ed level proficiency. Just enough so you know which end to point where, you know what the controls do, and can hit a target inside of a required accuracy.
I honestly don't know the most common causes of accidental discharge - but I would assume that most are gonna be split between flubbing it with a holster (butter fingers), or forgetting to eject a chambered round after removing a magazine (derping out).

-scheherazade