Forgive me if this question is too sophmoric, but I'm asking under the "there is no such thing as a dumb question" adage.
The general argument presented by the anti crowd is that the second amendment only applies to members of militia - and that was the intent of our founders as they wrote the Constitution and the Bill of Rights. If in fact that was their intent, why did the newly formed government not seek to disarm individual gun owners as soon as the Constitution was ratified? It would seem that the fact that they did not, speaks to the opposite - that is that the second amendment protects the individual right to "keep and bear arms".
Perhaps some of our legal minds on this forum could set me straight on this?
Second Amendment Argument
Moderator: carlson1
Second Amendment Argument
"Happiness is a warm gun" - The Beatles - 1969
Commander
Commander
Re: Second Amendment Argument
The antis argue that citizens during that time period had to hunt for their food, so that's the reason the gov't allowed them to keep their guns.
My question back is always this: Why does any sovereign nation need to create an amendment/law stating the need for armed forces?
Hopefully, the great minds of this board will have more to add.
My question back is always this: Why does any sovereign nation need to create an amendment/law stating the need for armed forces?
Hopefully, the great minds of this board will have more to add.
"If a man breaks in your house, he ain't there for iced tea." Mom & Dad.
The NRA & TSRA are a bargain; they're much cheaper than the cold, dead hands experience.
The NRA & TSRA are a bargain; they're much cheaper than the cold, dead hands experience.
-
cbr600
Re: Second Amendment Argument
I always ask if "the People" mentioned in the SA are the same "People" mentioned throughout the Bill of Rights.
Re: Second Amendment Argument
As to the Antis argument , they're saying it was a temporary right?- It would seem that if the Government recognized the need for citizens to keep their guns to hunt for food, why take that right away from the individual? There was no way of knowing when, if, or how the food supply would develop. Historically we know, but back in that time, they did not know what the future held.
"Happiness is a warm gun" - The Beatles - 1969
Commander
Commander
-
frankie_the_yankee
- Banned
- Posts: 2173
- Joined: Sat Apr 07, 2007 1:24 pm
- Location: Smithville, TX
Re: Second Amendment Argument
The answer is that the anti's argument about the meaning of the 2A doesn't make sense and never did. All of the criticisms and rhetorical questions that have been raised in the OP and the responses that followed in this thread are fully valid.
For the most part the "collective rights" argument is a creation of the 20th century.
But states got away with regulating gun rights back in the late 1800's, mostly because the courts had ruled that the BOR limited the federal government but not the states.
Since then, most of the BOR has been "incorporated" (i.e. made binding against the states) through application of the due process and/or privileges and immunities clauses of the 14th Amendment. But for some strange reason, the 2nd has not been incorporated, at least not yet.
Heller will not get into incorporation because DC is a federal enclave and not a state. So the BOR applies directly to it. With no need for incorporation, The Court won't go there.
But I believe that the ruling will set down principles that will be applied in some future case, probably against Chicago, where incorporation will be reached.
That's my take on it.
For the most part the "collective rights" argument is a creation of the 20th century.
But states got away with regulating gun rights back in the late 1800's, mostly because the courts had ruled that the BOR limited the federal government but not the states.
Since then, most of the BOR has been "incorporated" (i.e. made binding against the states) through application of the due process and/or privileges and immunities clauses of the 14th Amendment. But for some strange reason, the 2nd has not been incorporated, at least not yet.
Heller will not get into incorporation because DC is a federal enclave and not a state. So the BOR applies directly to it. With no need for incorporation, The Court won't go there.
But I believe that the ruling will set down principles that will be applied in some future case, probably against Chicago, where incorporation will be reached.
That's my take on it.
Ahm jus' a Southern boy trapped in a Yankee's body
Re: Second Amendment Argument
Our 2nd amendment right to bear arms is the one guaranteed freedom we have as citizens is the one freedom that guarantees you the right to defend yourself, your property, your friends and family and guarantees your other freedoms.
Without trying to sound like a gun nut or anti-government (I’m not, I’m just for minimized government control) our founding fathers in this country understood all too well how quickly a government could get out of hand and oppressive of the people. They also understood that the power always must be with the people. To allow the government to become more powerful than the people is to openly invite government oppression.
I love this country dearly, and would gladly die in defense of our way of life. It is because I love this country and our way of life that I passionately defend the ideals upon which this country is founded. I personally believe that if you love your country it is your right and duty as a citizen to defend our civil liberties and protect the public peace. Being armed and vigilant against oppression (either by criminals or others) is every citizen’s responsibility.
If you know of someone who exorcises their right to bear arms for these reasons, thank them fervently for being a true patriot and for helping to defend our society.
[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
---James Madison,The Federalist Papers, No. 46.
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.
---John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
---Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
[C]onceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.
14 Debates in the House of Representatives, ed. Linda Grand De Pauw. (Balt., Johns Hopkins Univ. Press, 1972), 92-3.
I believe those quotes settle the answer of the intent of the founders nicely.
Without trying to sound like a gun nut or anti-government (I’m not, I’m just for minimized government control) our founding fathers in this country understood all too well how quickly a government could get out of hand and oppressive of the people. They also understood that the power always must be with the people. To allow the government to become more powerful than the people is to openly invite government oppression.
I love this country dearly, and would gladly die in defense of our way of life. It is because I love this country and our way of life that I passionately defend the ideals upon which this country is founded. I personally believe that if you love your country it is your right and duty as a citizen to defend our civil liberties and protect the public peace. Being armed and vigilant against oppression (either by criminals or others) is every citizen’s responsibility.
If you know of someone who exorcises their right to bear arms for these reasons, thank them fervently for being a true patriot and for helping to defend our society.
[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
---James Madison,The Federalist Papers, No. 46.
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.
---John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
---Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
[C]onceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.
14 Debates in the House of Representatives, ed. Linda Grand De Pauw. (Balt., Johns Hopkins Univ. Press, 1972), 92-3.
I believe those quotes settle the answer of the intent of the founders nicely.
Re: Second Amendment Argument
All of the above are entirely correct.
The Constitution does not create rights. It recognizes pre-existing rights and preserves them from government interference.
The right of self-defense is a God-given or natural right of every living creature, and is necessary to the continuance of life. No legitimate government can infringe it.
- Jim
The Constitution does not create rights. It recognizes pre-existing rights and preserves them from government interference.
The right of self-defense is a God-given or natural right of every living creature, and is necessary to the continuance of life. No legitimate government can infringe it.
- Jim
Re: Second Amendment Argument
The word "militia" can be defined quite succinctly as "armed citizenry". It is simply a group of armed citizens that are able, when called, to defend their locality or the nation in general without expectation of pay. This is different from a soldier, who is a member of a standing army and for whom this task is a paid job even if his service is compulsory. The antis claim that, under this definition, the militia is the National Guard or Army Reserve; this however is incorrect as reservists and guardsmen are paid to be on the list and are required as part of their status to answer a call to active duty. Policement are not the militia for this same reason. Citizens at large form the militia and are neither compelled nor compensated for their service.
The Second Amendment with all its commas is actually open to interpretation. With the single comma, the first half is the reason for the RKBA. But with four clauses in the Amendment, the only reasoning is in the second: "being necessary to the security of a free State". "A well-regulated militia" and "the right of the People to keep and bear arms" are actually the same thing: citizens with firearms. You can actually drop the RKBA clause from the Second Amendment and it would read: "A well-regulated militia, being necessary to the security of a free state, shall not be infringed". "Well-regulated" translated to today's parlance would read "well-equipped", and we already have our definition of militia as being able-bodied armed citizens. Therefore, even without the specific words of the RKBA, the Second Amendment states that the public citizenry should have access to arms for security reasons, and the U.S. government must allow the presence of weapons in the country for that purpose. Now, "the right of the People" is in there actually to clarify: Without that clause the Amendment may be construed to be a collective right (arms must be accessible to the citizens, but the individuals making up the militia do not personally own them). The RKBA clause of the 2A protects the right not only to use weapons, but to individually possess them, because the "militia" is composed of people but is its own entity; the People in at least that sense are the individuals that make up the militia and thus "militia" is just a role of the People, who own the arms.
The Second Amendment with all its commas is actually open to interpretation. With the single comma, the first half is the reason for the RKBA. But with four clauses in the Amendment, the only reasoning is in the second: "being necessary to the security of a free State". "A well-regulated militia" and "the right of the People to keep and bear arms" are actually the same thing: citizens with firearms. You can actually drop the RKBA clause from the Second Amendment and it would read: "A well-regulated militia, being necessary to the security of a free state, shall not be infringed". "Well-regulated" translated to today's parlance would read "well-equipped", and we already have our definition of militia as being able-bodied armed citizens. Therefore, even without the specific words of the RKBA, the Second Amendment states that the public citizenry should have access to arms for security reasons, and the U.S. government must allow the presence of weapons in the country for that purpose. Now, "the right of the People" is in there actually to clarify: Without that clause the Amendment may be construed to be a collective right (arms must be accessible to the citizens, but the individuals making up the militia do not personally own them). The RKBA clause of the 2A protects the right not only to use weapons, but to individually possess them, because the "militia" is composed of people but is its own entity; the People in at least that sense are the individuals that make up the militia and thus "militia" is just a role of the People, who own the arms.
Re: Second Amendment Argument
And yet many "legitimate" governments can and do. Any Brit would scoff at the notion that the U.K.'s parliamentary government is illegitimate.seamusTX wrote:All of the above are entirely correct.
The Constitution does not create rights. It recognizes pre-existing rights and preserves them from government interference.
The right of self-defense is a God-given or natural right of every living creature, and is necessary to the continuance of life. No legitimate government can infringe it.
- Jim
The natural right that is actually in play here is freedom of choice, which IS a natural right that cannot be infringed legitimately. It can, of course, be influenced, but no government can force you as a lawful, competent citizen to make a certain choice. In owning and using a gun, you are choosing to defend yourself. You do not need a gun to defend yourself; it is merely an effective tool for the job, and its use can be readily taught unlike many other weapons. In fact, "arms" is not limited to guns; it is synonymous with "weapon". Swords and other bladed weapons were in common use at the time of the Revolution, and in trained hands they are no less effective today.
Re: Second Amendment Argument
I should have said, No government can legitimately infringe the right of self-defense.Liko81 wrote:And yet many "legitimate" governments can and do. Any Brit would scoff at the notion that the U.K.'s parliamentary government is illegitimate.
The U.K. has gone so far down that road that victims are now prosecuted for defending themselves with clubs and kitchen knives. That has been more through judicial action than legislation, so I think it is an illegitimate use of government power.
- Jim
Re: Second Amendment Argument
It's worse than that, even. This past year, murder charges --murder!-- were filed against a London homeowner who startled a burglar, who fled by crashing through an upstairs window, and falling to his death.seamusTX wrote:The U.K. has gone so far down that road that victims are now prosecuted for defending themselves with clubs and kitchen knives.
