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Retired Supreme Court Justice Stevens: My “Fix” for the Second Amendment

Robert Farago - comments No comments

 Supreme Court Justice Stevens (courtesy frugal-cafe.com)Back in February, I eviscerated an essay by Bloomberg BusinessWeek’s Paul Barrett riffing on retired Supreme Court Justice Steven’s proposed change to the Second Amendment. Yesterday’s washingtonpost.com published a larger excerpt from Justice Stevens’ new book Six Amendments: How and Why We Should Change the Constitution. Stevens’ nonsense logic on Americans’ natural, civil and Constitutionally protected right to keep and bear arms should not go unchallenged. Again. Still. So know this: Stevens believes the Founding Fathers added the Second Amendment to the United States Constitution to protect “keeping and bearing arms for military purposes.” Stevens also believes . . .

that the Second Amendment “did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.” The fact that the Fathers enacted the 2A to defend against government tyranny, the fact that all the other rights in the Bill of Rights impose limits on state and local governments is neither here nor there, apparently. Stevens kvetches about his colleagues’ difference of opinion on the subject, and offers a 2a fix:

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

And there you have it: your right to keep and bear arms kicked to the curb by a Supreme Court Justice. If you think that gun control advocates do not share Stevens’ view that Americans right to keep and bear arms only when serving in a militia – and not the type of militia currently gathering at the Bundy Ranch – then you’ve bought into their obfuscation (a.k.a., lies).

Chances are you haven’t. But think about this: the President of the United States appoints Supreme Court justices to the highest court in the land (subject to Congressional approval). A couple of them aren’t exactly what you’d call spring chickens. If a single pro-gun control Justice gets onto the bench, your gun rights could be toast.

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Robert Farago

Robert Farago is the former publisher of The Truth About Guns (TTAG). He started the site to explore the ethics, morality, business, politics, culture, technology, practice, strategy, dangers and fun of guns.

0 thoughts on “Retired Supreme Court Justice Stevens: My “Fix” for the Second Amendment”

  1. I think we need to stop looking at it as the right to keep and bear arms. We have the right to keep, bear, and USE arms. This way when ever someone tries to infringe the right things just kinda sort themselves out.

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  2. Yeah, about that I’ve got a better fix:

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms in defense of themselves, others, their property or the several states, shall not be infringed. Congress shall make law prohibiting the possession of arms in common use.

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  3. When they keep coming, you keep shooting. When they stop coming, you can stop shooting. Defensive gun uses are a RESPONSE to a prior failure. Of what? A school, parent, peer, neighborhood, police force, attorney, legal system, good decision making, or some combination of those things.

    Bad guys gettting shot is NOT A PROBLEM, it is a SOLUTION OF LAST RESORT. Death too harsh? Don’t kick in my door, gun in hand and expect a cheerful hello, thief, rapist, or killer. I just pray it’s not a foolish no-knock warrant on the wrong house.

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  4. Funny because I can’t remeber where it says in the Constitution that the Supreme Court has the authority to change amendments how they see fit.

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  5. Right, because people that had just fought a war against a tyrannical government wanted to insure that in the future only government forces had arms. Makes sense to me, NOT!

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  6. This is very simple to breakdown.

    Ron Scott’s Soultions = Criminals not in fear of the public

    The People of Detroit Who Carry On There Person and Have Guns
    In the Home = Criminals in fear of the public.

    I think it’s just that simple.

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  7. His family has been grazing those land before the BLM was even started. BLM springs forth from the FedGod and comes to ranchers and says “Hey, you know all that land you have been using for 100’s of years? Well, I want you to pay me for helping you take care of your ranch and the land, which was fine before I got here. You see someone has to pay me to do what no one needs me to do. So pay up or I wont have a job. The best part is that when we jack the fees up to the point you can’t afford it we’ll use the money you paid us to buy your land for pennies on the dollar. Cool huh?”

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  8. the payout will trigger the arrival of an entire fleet of ambulance chasers.

    Those “ambulance chasers” have already secured settlements and jury verdicts against Remington for more than $20 MILLION due to injuries and deaths caused by Remmy’s defective Walker trigger. And if you think that any American business pays out that kind of jack based on phony claims, you’re nuts.

    The basic 700 receiver design is an industry classic. However, the fancier triggers have been killers — and not in a good way — for over 20 years. And the company did nothing to fix them.

    All GM did with its defective ignition switches was to take a play from Remmy’s playbook.

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  9. It’s funny how many people are hating on the 700 now as if it’s a bad rifle. It’s a great rifle but a shotty trigger right now. It’s a hassle but hopefully they’ll fix it quickly & I’ll have a slick rifle back in my hands.

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  10. Federalist Papers #46

    “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

    Written by James Madison, author of the 2nd Amendment.

    Liberals hate this paper. There is no possible argument against what Madison meant. He didn’t care about hunting or self defense. In his day there weren’t idiots who didn’t understand self defense.
    Madison was talking about citizens bearing arms in the event the FEDERAL government became corrupt and used the Army against the people. A protection against tyranny.

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  11. These “vigilantes” have “gone too far?” Should we let them rape, beat and rob us just a little bit before we shoot them? I don’t understand what he’s recommending. If someone has come into your home uninvited, are you supposed to call the coalition for guidance? Where do these people come from? It honestly boggles the mind.

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  12. One of the first guns I bought was a brand new M&P 9c. I took it home, field striped it, cleaned it, reassembled it, pulled the trigger, and then proceeded to pick up the tip of the firing pin that had broken off and shot through the barrel. Needless to say, I was not impressed. S&W replaced it, but I was not given any explanation as to the cause.

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  13. Way late to this discussion, but here’s my two cents. The Bundys claimed their grazing rights pre-dated the creation of the BLM and therefore they could do what they wanted on the land. The courts disagreed with them. Twice. At the same time, many visitors to this site would say that the RKBA cannot be infringed. Many courts disagree. Who’s right, the POTG, or the courts? Apply this to the Bundy situation.

    Property rights have been almost completely obliterated in this country in the last 40 years, mainly due to the rise of environmentalism. National forests were originally set up to preserve wood for the use of future generations. Lately, they have become bird sanctuaries, and many families were driven out of lumber businesses they had operated for generations and communities wiped out. Farming communities in California have been wiped out because water supplies were diverted by the feds in order to protect some minor fish. Landowners have been dispossessed because their land was reclassified as federally protected wetlands. Fisherman have been put out of family businesses because of some federal mandate or other. Whole communities were dispossessed through eminent domain so that their land could be given to developers who would turn it into properties that would generate higher tax revenues.

    The BLM was set up to manage federal grazing lands. There were once 56 ranchers in that part of Nevada, most have been pushed out or bought out. The Bundys are the last. If no one is grazing these lands, what is the BLM doing with the land? Some have claimed the BLM is protecting an endangered species, but this is complete BS since they were themselves destroying said species in recent months. Just because the courts say it is okay to infringe on your gun rights, does that make it okay? Just because the courts have declared the Bundys are in the wrong, does that make it okay?

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  14. If what I’ve heard about the land being used for a Chinese solar power facility I’m not happy. Frankly I don’t trust the Chinese and do not understand anybody that does. It has nothing to do with race and everything with the super power they’ve become.

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  15. The tortoises were never in danger from the cattle. In fact, cattle and other grazing animals actually help process the rough forage of the area into manure that serves as a valuable source of nutrition for the desert tortoise.

    https://journals.uair.arizona.edu/index.php/rangelands/article/viewFile/10776/10049

    “Summary and Conclusions
    The historical record shows that:
    1. Desert tortoises have coexisted with cattle for 300
    years in California and Mexico and at least 100 years
    elsewhere.
    2. The highest tortoise densities known occurred at a
    time when overgrazing by livestock was the severest ever
    known.
    3. The fewer the cattle on a range, the fewer the number of tortoises.
    4. Excluding cattle for many years endangers the tor-
    toise population.”

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    • Wait, wsa it Desert Turtle, or Red Herring? I forget. Something tells me they are related. Saving the Red Herring is S.O.P for the Feds as they seize lands or regulate enemies out of business.

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  16. The obvious solution would be for the feds to go to court, if they (feds) win, let local law enforcement pursue the outcome. Every federal agency does not need its own army.

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  17. It’s about Federal power vs. State authority and one man’s attempts to run a business between these two conflicting interests. The way it’s supposed to work is that state and federal interests are supposed to “manage” public resources such that endangered species are protected, the land’s resources are used sustainably, and that the public (read as the government) is compensated for one person’s use of the public’s property. In practice it doesn’t work that way. There’s a long and ongoing conflict between the states and the federal government over who is responsible for what realist ate and by extension who gets to regulate/tax that land. At the federal level, it comes down to hording power, getting paid and advancing political agendas—most recently the environmentalist ideals of eliminating as much human impact to the land as possible. If you think about it it’s incredibly stupid to charge grazing rights for land to protect the desert whatchamacallit. If the species is threatened by ranching, then its threatened whether the rancher pays a fee or not. Whether the government should be in the business of prioritizing species interests over that of citizens is an entirely different question. At the state level, government wants to build business, get taxes, and maintain its control over public resources.
    The net affect is that a rancher has to navigate a twisted path between conflicting government groups who all want to maintain control of land, resources, and to get their cut of his earnings.
    As I understand it, this guy got tired of everyone coming over and taking his lunch money for “managing” the land his family has used for decades. From his perspective he was the only person “managing” the land. Everyone else was just making sure that they extorted as much money from the process as possible. Now he owes the Federal government over a million dollars in back fees. The feds, tired of fighting a 20 year legal battle in which he refused to lie down despite multiple court losses, finally decided to make an example of him, shake him down for as much as they could manage, and reclaim water and land control in the process. The feds feel justified in taking action and the law is on their side. The rancher is sick of paying nameless agencies for the right to do something his family has been doing for generations—especially given that they seem to want ever more money but give nothing back in the relationship. That’s my take on it anyway.

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  18. Aside from the clear wording of the 2A in no way supports his view — AND the term The People is used elsewhere to mean an individual right.

    However he is playing a clever trick here: _In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd._

    The 2A is NOT about self defense AT ALL. It is about the right of the people to keep/bear arms as an end in itself. I could have a right to self defense — and not be allowed any more of a weapon at home as I would be allowed on an airliner.

    BTW: Any state could simply call all its citizens Members of the State Militia (not that they need to) — and the fact that there are no longer any militias makes his suggestion even sillier.

    THE FACT IS — that the 2A is a bothersome constitutional feature for many. Which creates different ways to “game” the debate and try to ignore what is actually written. No surprise there are few 2A SCOTUS decisions…..

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  19. I see here a lot of people that support the federal government position in regards to the to ownership of land in states of the union.
    Article 1 section 8: “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
    Article 4 section 3: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

    My question is how a state can actually exists if 86% of its territory is not under its jurisdiction?
    To me seems that when the western states were created out of the territories purchased by US they should have gain full ownership of the land within their borders.
    The US is a union of states. If the US owns so much land then then can they form another entity similar in size to some of the states? Can you be citizen of such entity? In my mind there should be no territory within the border of a state that not within their jurisdiction except the ones specified in A1 S8 above. When Nevada was accepted in the USA the congress failed to grant them the land (part of the deal was for the feds to continue to own large swats of land).
    If the state has more than 50% of its territory subject to exclusive federal jurisdiction does such a state actually exists? Should the borders be redrawn of such state?
    We pride ourselves of being for lesser federal government, yet the majority of us seems to support this large land ownership by the federal government.
    This is an old issue that affect the relationship between states and the federal government. See a good summary here: http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL34267_12032007.pdf

    While he may be in the wrong in relation to existing legislation it doesn’t mean that the existing legislation is a right one.
    The Congress should act and grant ownership to the states for the land within their borders.
    to me this whole affair it is indeed an issue of States vs federal government.

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  20. Okay, folks I know this blog is OLD , but after reading it, I see that no one actually got that the writer was a bit tongue in cheek about NRA contributers opinion. kinda sick of the “shtf”, “teowawki” crap.

    Too many gun owners, post hurricane katrina, obama reign, aurora shooting, have embraced the “el’m.o.e” Mindset( last man on earth). There’ll be NO “zombies” ( unless thats code for people you deem undesirable-just “remember” that am emergency/survival situation van make for strange bed fellows, as shown when the planes hit the WTC towers and people who would NEVER bother to talk to one another were rushing in to help others!)

    My realistic “shtf” is another katrina disaster, where there is a temporary breakdown in rule of law. Post storm, people left behind started looting for the things they should have prepp’d for, then for a short time violent folks took to the streets in less effected areas.

    In that situation you’d need a fire arm “just in case”, and any of the above( sans the mini gun) makes sense. The shotgun listed, the m1a scout, the ar style rifle makes for good HD/ SD,heck even the 10/22.

    This perverse “bug out” mindset sounds good in theory, if you have an idea where to go. Seeing as most people have never camped overnight in the wild, that makes it a less than desirable or safe idea.

    And for those that take the “go down fighting” or want sniper rifles, really??? You paint yourselves in a corner where you dump other options-options that may resolve conflicts, or elicit aid from others stuck in the same situation as you.

    Unlike police officers, nat’l guardsmen,firefighters,et al, people see folks running around in the streets with guns, they,may not see you as a “survivor” too, but a threat-and don’t think a panicky single mom with a shotgun isn’t going to crank a round at you when you “rambo” by her front lawn-ditto the other “el.m.o.es”who’ll see you as “invading their newly established post disaster kingdom”. Again communication in an emergency is more important than isolation.

    And less we forgot, short of a world ending event, rule of law is going to be re established sooner or later-for those,with the defending me and mine view point, do you really think you can justify scoped rifle shots at “threats” more than 100m away??? Doubtful.

    Talking tough on the internet is one thing, surviving and using a firearm in an emergency is a whole magnitude different. If you truly think you are going to deploy your 2k in stored 7.62 x 39 rds to “survive”, you may already be screwed -it didn’t work at the Alamo,so how do you think it’ll work for you?

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  21. Whether you agree with the militia folks that supported Bundy or not, you have to give them credit for actually showing up at ground zero and putting themselves in harms way.

    Did a single one of the TTAG commentors talking war talk against the gov do the same? Or are they all just keyboard commandoes?

    Out of a nation of 330 million+ how many actually had boots on the ground at the Bundy ranch? 200-400?

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  22. Is this a joke post liberty ammo is well known to be marketing hype I mean who call a round HALO point then changes it to USM4 with an operaor logo behind it

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  23. It’s ammo for gun tests, geniuses. All it has to penetrate is a piece of paper.

    Sometimes you guys are incredibly obtuse. Well, make that intentionally obtuse. You gun cranks would complain about a wet dream.

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  24. Freedom arms tanking would be the best thing that happened to Remington and Marlin. Perhaps then the name would be bought by those that actually care about firearms and experience an Ithaca Gun style resurgence.

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  25. Sure, it’s free ammo, but I don’t see a lot of “normal” stuff in their lineup. Perhaps that has changed. As it is, I don’t see how a .40 Smith 60 grain JHP at a claimed 2000 FPS from Liberty compares to an industry – standard .40 JHP at 1000 FPS from Federal, Hornady, or Winchester. Range reloads mimic those same speeds to get similar points of aim / impact.

    To get a good review, you need to use good ammo. Perhaps one of my ARs would choke on a 35 grain bullet at 3400 FPS. I don’t think most folks shoot that out of an AR, so I don’t care what happens in a bullet / cartridge / gun combo that I’ll never use. Most .223 / 5.56 AR loads are 55-77 grains. That’s what I’ll shoot, and that’s what I want reviewed. Similarly, most 9mm defensive and practice loads are 115-147 grains, .40 Smith 135-180, .45 ACP 185-230, etc. Manufacturers set up their guns for SAAMI – spec loads.

    I’m seeing Liberty 9mm at 50 grains / 2000 FPS, .40 at 60 grains / 2000 FPS, and .45 at 78 grains / 1900 FPS. I don’t need to be “served” with exotic ammo that doesn’t properly perform. So unless Liberty has changed or expanded their lineup to include bullet weights that are similar to what people like us actually shoot, the value of the review become suspect.

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  26. Back in ’93, the Feds cut Bundy’s grazing allotment from 900 to 150 head — to save a tortoise that seems to be doing quite well. If Bundy can’t graze his entire herd, he’s all done.

    The BLM has already put every other rancher in southern Nevada out of business for the benefit of Harry “the Hustler” Reid’s business buddies. Bundy is the last man standing. Bet he won’t be standing for long.

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  27. Excuse me guys, but I think we’re putting the cart before the horse here. Let’s back up and analyze some other things before we start discussing actually shooting someone. This may be common sense for most, but I think it’s good to discuss it and debate it for the less-experienced and non-CCW holders.

    The way I see it, the absolute best outcome to a dangerous self-defense scenario is if you can get away. You don’t need a gun for this. Run away, drive away etc. No scum that is giving you a hard time deserves even 5 minutes of your time, let alone months or years in civil or criminal court if you hurt/kill him. This isn’t a movie where you need to be a hero…

    When you can’t get away from a BG though, the absolute best outcome in that scenario would be to change his mind to leave you alone or to give you the opportunity to leave. This can be done with charm, humor and general quick-wittiness (I’ve used this myself when I got into a few hot situations), and of course the other alternative is to scare him away or to scare him enough to let you get away. This is best done by a formidable weapon, such as a handgun.

    If getting away isn’t an option, and you can’t talk your way out of a situation (for instance if an attack happens too quick), you still have one more trick up your sleeve that will drastically change the whole game, which is the handgun. This is the 2nd to last best option of course, to reveal your last card, but still you haven’t actually shot anyone yet and you may very likely end up both walking away from this with no legal/moral repercussions.

    In my personal opinion, 90% of BG situations that escalate to a “pull my gun out” level can also be diffused at this level. In other words, just because you have a gun doesn’t mean you have to use it. And by all means avoid using it. It’s much easier/cheaper to deal with an assault with a deadly weapon trial, than for a legal killing let alone manslaughter/murder. Also, in a situation where you have to pull your gun out, it probably won’t really be in a nice public place and you most likely can run/walk away from the encounter without anyone else witnessing and having to deal with the law.

    NOW, if you do feel you need to use your weapon, I agree with the author and you better have the most devastating round you can have. And don’t just shoot once. Anything worth shooting once is worth shooting twice.

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  28. Truly makes you wonder about the intelligence of management at the company. I know it’s Monday am quarterbacking but why not send out parts to any dealer with a gunsmith and pay them a small fee to do the part swap, If they certify the work is done according to directions then everything’s good. Offer individuals a choice to mail it in or go to the same local gunsmiths for the work. The only reason it had to be done this way is to make the perdition-bound lawyers happy. There must be some way to do this sort of thing without bankrupting your company in the process. Unless that’s the idea. It’ll stop the lawsuits.

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  29. thanks for sharing my silly vid 🙂 appreciate it! and enjoy your articles!

    Painting in the thumbnail for the vid (upper left small blue painting) is an original by epic artist Allen Jaeger

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  30. We have an awesome new indoor range in Saint Louis, on Gravois, http://sharpshooterstl.com/ they have a truly state of the art facility with lanes wide enough to accommodate two people at one time.

    On one side are the lanes, and on the other an awesome BBQ place, but no booze.

    I was a bit surprised when I saw you could not order a beer but then realized maybe the logistics and PR of that were a tad daunting.

    Seems like the place in OK has an … sorry … OK policy on how to deal with this.

    If folks are unable to get back to the pew-pew-pew side of the operation after having a few, then why not have a place that serves booze? I wish them well.

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  31. Yet he looks old enough to be in the “Duck and Cover” nuclear annihilation age group. I wonder how he feels about that message from way back in the day?

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  32. This is just one more trator to the Republic that needs a gillaten. He speaks with a fools tongue an exnors history of everything that was put into the American Constitution ny our forefather.

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  33. My problem with Mr. Stevens’ “fix” would be that it creates an exclusive class of people who may enjoy a right above those who don’t belong to that class.

    I don’t believe the Founding Fathers intended that for ANY of the rights identified in the amendments in the Bill of Rights, including the 2nd Amendment.

    I believe that Mr. Stevens determination of an “anomalous result” in interpretation is only because Mr. Stevens has a personal bias that won’t allow him to accept what is commonly and logically accepted with regard to the amendment in question.

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  34. IF 2A were to be contorted as Stevens says, the solution would be simple. EVERYONE in the state (e.g.Texas) would immediately be enlisted in the state militia. Problem solved.

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  35. Any time you let a lawyer of any sort look at a document you will get a
    myriad of opinions depending upon the personal and political leanings
    of that lawyer. You will never get two lawyers agree on the original
    intent of any document even if the person or group is there to explain
    it in plain and simple language. Just like Clinton with his definition of
    the meaning of the word “IS”. as we saw in his impeachment hearing
    he wanted it broke down to lawyer language or to understand it better
    he wanted to be able to “twist” the definition to suit is purpose. The
    United States Constitution is a plain and simple document that has
    withstood the test of time until today when we have a Socialist
    Democrat from Kenya who had abused and stomped upon the
    right and freedoms of Americans in favor of certain minority groups
    to gain votes while trampling upon the right of the majority.
    The Supreme Court has caved in and kissed his ass letting him
    violate his oath of office and his duties as President of the Nation.
    but he has also used Government agencies such as the FBI, NSA
    and other to help him find evidence to sway their votes in his
    favor. Much like the famous ruling that has inflicted Obama care
    upon America causing million of citizens to lost their insurance while,
    at best, 2% many have gained insurance we still have 98% that have
    lost theirs by their own figures.

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  36. WHY would you need an expressed right to bear arms in the military?!? That’s like saying you have a right to a tennis racket when you’re playing tennis. The definition of a militia was all able bodies men, etc. so it means everyone, not just the government and it’s military.

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