[Parallax]

Came across this statement on another forum.

"The NRA has practically re-written the constitution in the minds of a lot of folks who don't know much about constitutional law. If you're someone in a "well regulated Militia" then by all means enjoy your second amendment right.

The reality is the Supreme Court has never in its history ruled that the second amendment guarantees an individual right to keep and bear arms.

The "individual right" (just so we're on the same semantic page) to bear arms is inextricably tied to the preservation of a Militia. Whether that's all able bodied citizens, whether it secretly means well prepared instead of well-regulated, doesn't even really matter. The right to keep and bear arms exists in the 2nd amendment strictly in the context of a Militia. In other words, you still have no 2nd amendment right to own a gun for "protection" or hunting or target practice."

Your thoughts on this.

[Stand_Watie]

I don't know that you do particularly have the rkba for hunting from the federal standpoint.

"Target practice" is part of "well regulated" so he's clearly wrong there. "Self defense" was an understood right by the framers of the second amendment - see the Declaration of Independence - ...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..., but that isn't explicitly stated either, although it is in most state constitutions, see list here

http://www.saf.org/Constitutions.html#With

[NIGHTWATCH]

Hunting, target practice, CCW, all natural extensions of our individual civil liberty.

[Parallax]

Added more to the original post.

[Byron Quick]

He's right in a wrong headed way. No the Second is not about hunting. No the Second is not about self defense. The Second is about resistance to a tyrranical central government. However, English common law enshrines the right to self defense without regard to what the English have done to their own rights. The same goes for hunting. This guy is full of bull feces.

Ask him about the liberal constitutional law scholar Laurence Tribe's position on the Second Amendment:D He won't want to discuss it. There are other top notch liberal constitutional law scholars who have stated that the Second Amendment means what it says...they've all received death threats from gun grabberss. :rolleyes:

[NIGHTWATCH]

The Second Amendment is our militant provision to defend and enforce our (the people) constitution by way of force. Its not about hunting, CCW or target practice but all these activities follow a natural pattern of an armed society and historical traditions.

[swampsniper]

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once".
Judge Alex Kozinski

[Stand_Watie]

If you're someone in a "well regulated Militia" then by all means enjoy your second amendment right.

That would be "the body of the people" as written by Madison (author of the 2nd) in the Virginia state constitution.

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed"

The only thing your friend should have a disagreement with you on now, is if we can force him to keep a battle rifle and become proficient with it.

[KriegHund]

This link may help...

Well regulated militia and right of the people are clearly seperate and clearly defined in the 2nd amendment. So states the supreme court, so states the constitution.

"a lot of folks who don't know much about constitutional law."

I wouldnt be talking so fast pal.

http://www.usdoj.gov/olc/secondamendment2.htm

Read that.

"xts entities other than individuals are said to have "rights," (37) the Constitution itself does not use the word "right" in this manner. Setting aside the Second Amendment, not once does the Constitution confer a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a "right of the people" discussed below, the Constitution in the Sixth Amendment secures "right[s]" to an accused person, and in the Seventh secures a person's "right" to a jury trial in civil cases. (38) By contrast, governments, whether state or federal, have in the Constitution only "powers" or "authority." (39) It would be a marked anomaly if "right" in the Second Amendment departed from such uniform usage throughout the Constitution.

In any event, any possible doubt vanishes when "right" is conjoined with "the people," as it is in the Second Amendment. Such a right belongs to individuals: The "people" are not a "State," nor are they identical with the "Militia." Indeed, the Second Amendment distinctly uses all three of these terms, yet it secures a "right" only to the "people." The phrase "the right of the people" appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The First Amendment secures "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," and the Fourth safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, the Ninth Amendment refers to "rights . . . retained by the people." We see no reason to read the phrase in the Second Amendment to mean something other than what it plainly means in these neighboring and contemporaneous amendments. "

[Bartholomew Roberts]

Everything you need to handle these types of arguments is located here:

http://www.guncite.com/

Guncite has a lot of excellent research on the Second Amendment and its intent and hosts the remains of the now-defunct Second Amendment Law Library as well.

[El Tejon]

The Supreme Court has held that "the people" is a term of art that means individuals. Why would they mean individuals in all of the BoR except the 2nd? :confused: ;)

[Art Eatman]

The 1992 Urriquez-Verdugo v. US saw SCOTUS declare in part that "the people" means individuals as well as groups.

The Preamble to the BOR clearly states the purpose of that package of enumerated rights is to restrain the central government, the State, from abuse of power. The rather obvious question, then, is how can something intended to restrain the government be also a restraint upon the citizenry? The Amendments cannot also restrain you and me when they're intended to restrain the government.

Art

[SteveS]

The reality is the Supreme Court has never in its history ruled that the second amendment guarantees an individual right to keep and bear arms.

There is a book called Supreme Court Gun Cases by Halbrook, Kopel, and Korwin. There are a fair number of cases that speak to an individual right. Additionally, the majority of scholarly work on this subject favors the individual right to the so-called collective right.

[boofus]

The definition of a "well regulated militia"
US Code Title 10 Section 311
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.

As I have said before the 2A does NOT say the right of the militia to keep and bear arms, it says the right of the PEOPLE, the same PEOPLE that have individual rights to free speech, religion, and privacy.

The inherent purpose of the militia is protection. So that argument does not hold either. Hunting is just a good side effect.

[R.H. Lee]

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

'Well regulated' means 'well equipped'. The people (individual free citizens like you and me) form the militia. The prerequisite for the security of a free state is a well equipped militia. The prerequisite for a well equipped militia is the individual right to keep and bear arms.

It's a simple concept to understand, although others have explained it better.

The 2nd, as well as the all of the BOR, places limits on government, not on individuals. Compare the interpretation of the 2nd to the interpretation of the 1st in modern times. It's a double standard. (Although McCain-Feingold attempts to place government imposed limits on the 1st, also).

It requires tortorous legal 'logic' to conclude that a government sponsored and sanctioned program is a prerequisite to the individual RKBA.

[Hawkmoon]

The entire focus the the recent DOJ memorandum was precisely this question. It is not a Supreme Court ruling, but it may be the most thoroughly researched and completely documented scholarly analysis of the question yet undertaken. Someone else posted the link above. If you haven't read it, you should do so. The conclusion is that the RKBA is unquestionably an individual right.

One cannot trust the SCOTUS these days, unfortunately, but I would think if the right case came along and the appellant walked in and plunked a copy of this memorandum on the bench, even the Supremes would have a difficult time wriggling around to deny that its an individual right.

[cuchulainn]

The reality is the Supreme Court has never in its history ruled Translation -- "I don't want to think. I just want to repeat this litany as truth much like the pro-Slavery folk used Dred Scott as their mindless litany." You need to jar him away from his litany and get him to think about what the court really ruled (and possibly whether the court was wrong-headed as in Dred Scott)

He's right to a point. The Supreme court has never actually ruled directly that RKBA is an individual right (although reading 19th century gun-rulings, like Cruickshank, show the Court thought of it thus).

But a lack of a ruling does not prove the opposite -- that the right is collective/militia-only. The SC has not ruled on the individual-vs-collective question. The only place it came close was in U.S. v Miller in the 1930s. However, in Miller, the court dealt with the question of whether a sawed-off shotgun was a militia weapon, not whether Miller was in a militia. It decided the gun wasn't. But that begs two questions:

1) If a different type of gun had been at issue, would the court have declared Miller's right protected?

2) If the court thought the right to be militia-only, why didn't it simply point out that Miller was not in a militia -- why did it go the more-convoluted route of discerning whether gun was usable by militia?

The court's failure to used Miller's lack of militia membership is the most cutting argument against the militia-only argument, IMO.

In any event, Clayton Cramer's book Firing Back gives a good quickie review of court rulings. For more indepth coverage, find Stephen Halbrook's The Second Amendment: That Every Man Be Armed

(((Of course I disagree that "non-militia weapons" should be unprotected, but that's another debate. As well, it was absurd for the Court to declare sawed-off shotguns to be non-militia weapons in the 1930s. Current military tactics then still involved trenches, and in WWI soldiers commonly used sawed-off shotguns in the trenches -- but that's an different argument, and I'd avoid making it so as to avoid a confused discussion. But this isn't the only case of such absurdity. IIRC, in Morton Grove, the court declare handguns to be non-military weapons in the face of the fact that most officers and many other military personnel carry sidearms, a.k.a handguns. But again, bringing that up would just confuse the discussion.)))

[The Rabbi]

Thre might be an individual right but it is largely irrelevant. The 2A does not apply to states, unlike other provisions of the BOR. Some states have constitutions that protect those rights but the clear idea is that states can regulate gun ownership. There were two memoranda, one by the AG of TN and one by the AG of VA that dealt with this question and they both came to that conclusion.

[Rev. DeadCorpse]

Bravo Sierra Rabbi.

Art 4. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Art 6. Paragraph 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Preamble BoR. The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.

Amd 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amd 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amd 14. Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Even a current report for the DoJ (http://www.usdoj.gov/olc/secondamendment2.htm) gives even more evidence for an INDIVIDUAL Right that no one may infringe upon at ANY level of government. That all levels of government actually DO infringe on our civil and individual Rights is irrelevent. :fire:

A Right is something you do not have to ask permission to do. The Founders understood that people have Rights that no rightful and just government should EVER restrict at ANY level. Hence the wording of the Constitution. The quotations from the Founders bear this viewpoint out. Selective incorperation and State "rights" are lies.

[ctdonath]

The guy starts a proper line of reasoning but does not follow thru on it - likely scared of where it goes.

The existence of a national militia depends wholly upon the ability of a great number of individuals to, on very short notice, show up for combat suitably armed and suitably trained. You CANNOT separate the militia as a group from the militia as a collection of individuals; there is no collective right without an individual right, as the collective is composed of individuals.

The Constitution makes it clear that the militia may be "called up" by the federal gov't. As this may happen on very short notice, one cannot assume there will be time to equip and train them. Indeed, the Founding Fathers wrote the Militia Act of 1792 precisely to ensure that citizens were suitably armed and trained - at their own expense. Hence, the 2nd Amendment was written to guarantee the right of individuals to arm themselves in preparation for such a call.

Defending the state also includes the individual level. If one can act NOW to stop lethal harm, others are protected as well. The assault of a single citizen is damaging to the state, and the assailant will likely assault others unless stopped. Self-defense is calling a single militia member to defend his own part of the collective state.

When the need for weapons arise, there is no time to aquire and practice with them. Target practice, and the associated study and acquisition of guns, is vital toward being ready to fulfill a militia role. Allowing individuals to pursue aquisition and training on their own saves the state enormous costs.

Hunting, aside from being an ancient manner of obtaining food, is high practice for militia work: powerful weapons and effective concealment against an alert and unwilling adversary amounts to effective real-world militia training - with food as a payoff for successful work. Do not underestimate the fact that deer season amounts to an army of 18 million snipers, fully equipped with powerful long-range rifles and cammo and transportation and ... outnumber the world's four largest militaries combined.

Those who harp on the "collective militia" interpretations of the 2nd Amendment need realize that to fully support their view they inevitably justify individual firearms ownership (machineguns included), target practice, and hunting. Pathetic that they sweep all arguments toward "collective militia" and then destroy that which forms one.

[R.H. Lee]

By that logic Rabbi, states should be able to infringe/regulate/abolish anything and everything included in the BOR, without consequence. Why don't they?

Because there is a double standard, and regulation of firearms is fair game in the name of safety.

You seem to be condoning/supporting the individual states practice of regulating firearms. What is your logic for that position?

[Walt Sherrill]

Thre might be an individual right but it is largely irrelevant. The 2A does not apply to states, unlike other provisions of the BOR. Some states have constitutions that protect those rights but the clear idea is that states can regulate gun ownership. There were two memoranda, one by the AG of TN and one by the AG of VA that dealt with this question and they both came to that conclusion.

Last year, I think, the U.S. Attorney General stated that the right to Keep and Bear Arms was personal right, and affirmed the DOJ's position on that matter. That's not LAW, but it is comforting.

Most Constitutional scholars say that the entire Constitution is a document designed to directly define and LIMIT the powers of the federal government. The US Constitutonal is NOT a document that limits the rights of individuals. Those who created and shaped the document weren't concerned about limiting individual rights -- they were concerned about a too-powerful central government trampling on individual rights and powers.

The amendments known as the Bill of Rights expressly define the powers WITHHELD from the federal government -- and all of these RIGHTS (or powers), it seems to me, are purely individual rights or powers. (To argue otherwise, for example, would imply that you only have a right to religious freedom if you're a member of an organized congregation, mosque, or temple, and that any of the several states could outlaw your religious practice. Do you believe THAT to be true?)

The Tenth Amendment says, The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. We know that states can regulate gun ownership and possession, and its been that way from the first.

Saying that any RIGHT is a "collective" right, as some argue, is a concept totally foreign to the Constitution. Compare how the terms RIGHT or RIGHTS are used elsewhere in the Constitution, and show me where they are used to address a collective, rather than personal/individual, power.

[Too Many Choices!?]

:scrutiny:!Some people don't seem to understand that if the Government can tell you not to do something, it is not a ,"Right", it is a privelage:banghead:!!

[SteveS]

By that logic Rabbi, states should be able to infringe/regulate/abolish anything and everything included in the BOR, without consequence. Why don't they?

States did for much of the history of this country. The Supreme Court started making provisions of the BOR applicable to the states via the 14th amendment starting in the early to mid part of the 20th century. So far, they have not done so with the 2nd amendment.

Most of the states have provisions similar to the 2nd amendment in their constitutions. Michigan's is the following:
"Every person has a right to keep and bear arms for the defense of himself and the state."

[Rev. DeadCorpse]

Wrong answer Steve. Under the Articles of Confederation, this may have been true. Not under our US Constitution though. The 14th only redefined who was a citizen as slaves were being denied their basic, civil, and human Rights.

These days, the Wickard decision and the Commerce Clause part of the New Deal is what has been used to screw us out of our Rights. States are allowed to follow suit since the FedGov telling them no would mean they would have to scrap the New Deal policies.

A Right is a Right and exists independant of the State (Federal or local). That is, if you even want to come close to pretending to be a Free Individual with unalienable Rights.

If not, then welcome to Amerika. It's a brave new world.

[The Rabbi]

You seem to be condoning/supporting the individual states practice of regulating firearms. What is your logic for that position?

First, understand that my view of "rights" is very narrow.
Second, understand that I do not agree that "right" is the same as "unrestricted right." There are no rights which are unrestricted. Tennessee's constitution explicitly permits firearms ownership but also explicitly gives the state legislature powers to regulate. I dont see that as a problem.

[Rev. DeadCorpse]

Rabbi: So the 9th and 10th Amendments mean nothing to you? What other Rights are you willing to have restricited then? Can a State limit what kind of religion you pratice? Can they pass legislation allowing them to search your house when ever they want to?

Aren't you confusing the United States with Europe?

[Art Eatman]

The writers of the Second Amendment did not see it as an unrestricted right. Discussion in the "Anti-Federalist Papers" indicated restricting possession against those "of unsound mind" and of "ill repute". I assume that in today's terms we'd take that to mean the insane and the felons...

Art

[The Rabbi]

Can a State limit what kind of religion you pratice?

They already do. You'll have to do better than that.

[SteveS]

No, I believe I am correct in that the BOR was originally set up to limit the powers of the federal government, not the state governments.

The Tenth Amendment says, The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

This says we, the people, get the leftovers after the states. Historically, the states had a great deal of power to regulate all sorts of things. Over the years, the feds have usurped much of this power.

[Rev. DeadCorpse]

Art: Yes. And through due process of law, those people can be incarcerated or institutionalized. The danger of having such people allowed to roam free in society was considered minor compared to having everyone disarmed.

[The Rabbi]

No, I believe I am correct in that the BOR was originally set up to limit the powers of the federal government, not the state governments.

I think you are correct, SteveS. It was not until the 14thA that the BOR was applied to the states.

[Rev. DeadCorpse]

They already do.

And you see this as a good thing?

[Harve Curry]

I believe this is the correct version and punctuation. If you check several books you'll find different versions and some words capitalized:
2nd Amendment

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

When read this way it is plain to understand what the author was saying, that we need a trained (well regulated) militia, the militia is comprised of the people, and those people not in the militia (being the general population) have a right to firearms. The general topic of the sentence alludes to defense and war, not hunting, but hunting cannot be ruled out by it either. The media, newspapers, reporters and various authors in the last 200+ years have altered the original punctuation and capitalized words that should not have been.

[The Rabbi]

And you see this as a good thing?

It's largely irrelevant whether I see it as good or bad. But that is the case, so your argument for unrestricted rights fails.

[Rev. DeadCorpse]

This says we, the people, get the leftovers after the states. Historically, the states had a great deal of power to regulate all sorts of things. Over the years, the feds have usurped much of this power.

Wrong. That means that anything not prohibited, like infringing on our Second Amendment Rights, was left to the States. Like traffic laws and zoning. Yes, the Feds have overstepped their bounds. So have the States.

Look up "unalienable" some time. Or are you one of those who has a vested interest in maintaining, or heaven forbid, expanding the status quo?

Me. I want my Rights back. A Right isn't a Right if you have to ask permission. Either we acknowledge these Rights as they were intended by the Founders, or we stop pretending to be a society of Freedom and Indivuduals.

Are you ready for that kind of admission? Is it what you are really after?

[R.H. Lee]

Tennessee's constitution explicitly permits firearms ownership but also explicitly gives the state legislature powers to regulate. I dont see that as a problem.
OK. Then you don't view the BOR as absolutes, rather a list of guidelines, or suggestions? States are free to legislate/regulate/limit any and all of the restrictions placed on government by the BOR?

I'm just trying to understand your operating principle here, or whether it is an arbitrary opinion you hold.

[Rev. DeadCorpse]

It's largely irrelevant whether I see it as good or bad. But that is the case, so your argument for unrestricted rights fails.

It's only restricted because We the People don't stand up to our government any more. Defeatism like yours is probably why. You couldn't care less about your Rights, so why should you give a toss about anyone elses?

"May your chains set lightly upon you, and may posterity forget that you were our countrymen." Samuel Adams

[The Rabbi]

Do you have any legal theory to back this up? Or are you just going to spout off about "inalienable rights" and "the Founders' intent" and other catch phrases? Those arent arguments but noise.

[The Rabbi]

OK. Then you don't view the BOR as absolutes, rather a list of guidelines, or suggestions? States are free to legislate/regulate/limit any and all of the restrictions placed on government by the BOR?

Not just the states but the Feds as well.

[Rev. DeadCorpse]

Those arent arguments but noise.

Not since the New Deal. That was pretty much when we tossed our Constitutional Republic out the window and started on our path of Democracy.

If you consider the plain language of the very document that is supposed to be the founding basis for our Republic "noise", then there is no use talking to you.

[Rev. DeadCorpse]

Not just the states but the Feds as well.

So now you are saying that the Constitution doesn't apply to anyone?

Are you on drugs?

[The Rabbi]

The Feds and the states have regulated every right in the BOR. This has been upheld more often than not by the Supreme Court or by state courts. I'm sorry this disturbs you.

If you consider the plain language of the very document that is supposed to be the founding basis for our Republic "noise", then there is no use talking to you.

If you dont consider that there is more than just your opinion of the plain words on the page to an understanding of the Constitution then there is nothing to discuss.

[R.H. Lee]

Rabbi, you're gonna have to explain why you think the founding principles of this country, as exemplified in the BOR and other documents is somehow subject to alteration. You're not suggesting the constitution is a 'living document' and must be amended to suit the times, are you?

[The Rabbi]

It isnt a matter of whether I think so or not. That's how it is.

[Standing Wolf]

If you think I have no individual right to keep and bear arms, come on over to my house and try to take them away.

[The Rabbi]

If you think I have no individual right to keep and bear arms, come on over to my house and try to take them away.

ROFLMAO!!! :p

[Walt Sherrill]

Food for thought.

Actually, guys, I think RIGHTS *ARE* granted and enforced by governments. (Those Catholics and some would-be lawyers among us will argue that NATURAL RIGHTS also exist. But those "natural rights" are intellectual constructs with no power of enforcement; thinking they exist doesn't mean they have any power to change what you do or is done to you.)

Freedoms are what we're really talking about, and Freedoms (to do and act as you please) exist outside the control of government.

If you live in the wilderness, you are free to do as you please. When you're free, you don't have a right to do as you please, nor do you need a right to do so.

The term RIGHT implies a social context and social rules, and rights always seem to exist in that social context, which has vying objectives, limited resources, etc.

Can you name a RIGHT that exists without, ultimately, government (or your community) to enforce it? I can't.

Rights are based on an implied or stated social contract.

Can you name a right that government can't take away through some "due process"? Can you name a right that can't be taken away by someone bigger or more powerful?

Tell the black man who was lynched, not too many years ago, that he had the right to life. Tell the American citizens of Japanese descent that they were free to go, and not stay in those crappy concentration camps. Tell them their right to own property wasn't taken away when they lost everything they owned but what they could carry with them.

If your rights are taken or lost, government or someone even bigger may get whats taken away from you, for you, and give it back. May.

We live in a social context, and RIGHTS are a function of that context.

Freedoms are better, but freedoms are always at risk when other people are around.

If this analysis is correct, its pretty darned important that WE WORK to make sure government reinforces our rights, and doesn't infringe on our freedoms.

[Too Many Choices!?]

:rolleyes:

The BIll of Rights doesn't apply to the Feds :rolleyes:

Then what is the point of having it.....Is it time yet :uhoh: :what: :banghead:

[The Rabbi]

Then what is the point of having it.....Is it time yet

Please lay out in detail how you plan to overthrow the government. Then we'll be right behind you as you claim freedom of speech. ;)

[Glock Glockler]

So, Rabbi, basically our rights are whatever the govt. says they are, yes?

[Walt Sherrill]

The Bill of Rights DOES apply to the states. The BOR is the first ten amendments to the Constitution. The last part of the BOR is the Tenth Amendment:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.The Bill of Rights clearly both recognizes and affirms "states" and "individual" rights or powers.

Its just a shame it didn't go farther, and specify what things should be prohibited to the states, so that the rest would be left to individuals.

[The Rabbi]

So, Rabbi, basically our rights are whatever the govt. says they are, yes?

That's an oversimplification but not too far off, yes. You have some other idea?

[grimlock]

Can you name a RIGHT that exists without, ultimately, government (or your community) to enforce it? I can't.

Well, the right to keep and bear arms does come with nifty built-in infringement countermeasures...

[The Rabbi]

I guess Mao was right after all.

[scottgun]

Our rights are innate, yet limited by the government. Maybe a little too idealistic of a statement, but once you let the government dictate your rights they are already lost.

[ksnecktieman]

I think it is appropriate here to reproduce the second paragraph of the Preamble To the "Declaration of the 13 United States of America".

"We hold these Truths to be self-evident, that all Men are created equal,that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness---That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government'


They thought we got our rights from the creator, and the Declaration just told the government to keep their hands off

[Walt Sherrill]

They thought we got our rights from the creator, and the Declaration just told the government to keep their hands off.But, have you noticed that it always takes GOVERNMENT, the Courts, and the use of power to make sure these rights aren't ignored? Sometimes government makes them appear, and sometimes it takes others to make government back off. But Government's always in the picture, somewhere.

Our Founding Fathers were faced with a problem. They were trying to prove that the King didn't have a Divine Right to rule, and the only way they could argue against that "divine" right was to say that we (as individuals) had our own DIVINE rights. Its wasn't a new argument, but it was a bit of sleight of hand.

As I noted earlier, many African Americans can tell you THEIR unalienable rights didn't exist for several centuries. And, and WWII showed that Americans of Japanese descent had no rights to property or freedom if they lived on the West Coast of the US. Unalienable rights? Hardly.

Those rights were only realized when government stepped in.

Please don't think, by my arguing like this, that I think we SHOULD NOT have these rights -- I think they are very important. They'll all parts of a social contract, and when the contract is busted, the rights go away.

[The Rabbi]

I think Walt Sherrill gets it.

Rights need to have champions to remain so otherwise there will not be enough constituency for them. I think it is no coincidence that rights of gun ownership began to slip when urbanization and suburbanization became stronger. People just didnt have or need guns like they did in more rural areas. It also no coincidence that 1st Amendment rights of freedom of the press expanded just as the "Information Age" began to take hold. The best way to preserve and expand gun ownership rights is to create more gun owners, who care about it.

[Gordon Fink]

Can you name a RIGHT that exists without, ultimately, government … to enforce it?

Inmates in maximum-security prisons often manage to arm themselves, so it would appear that the right to arms exists even without government approval. The only sure way to deprive someone of an inalienable right is to kill him.

~G. Fink

[model 649]

Bottom line: We have only the rights we are able to secure. Some are bought, some are fought for, some are legislated.
Josh

[deanf]

The 2nd Amendment is moot, speaking strictly on a federal level.

No matter how you interpret it, the 2A does not delegate authority to the federal government to do anything. Furthermore, there is no delegated power anywhere in the Constitution to regulate the ownership or use of guns. Therefore, the unrestricted ownership and use of guns is a defacto right, on the federal level.

The state level is another question, as each state constitution is different.

[KriegHund]

If the right is regulated by the governement its not a right.

A right is something you have and that no one should be able to take away from you...should be able to. They can....but that still doesnt mean its not a right.

You see, theres theses strange things in the constitution...theyre called rights. These rights are clearly defined. Its what America is all about.

Now if you dont f****ing understand that, the get the h*ll outta this country and go to one where the govt regulates your rights...your privaleges.

Go to china...go to N. korea... go to any other country... and then well see how much you like the government regulating your rights....

[lunaslide]

In the broader, philosophical sense, Rabbi is correct in saying that a right is only a right if it can be procured and defended. It can also be said that in general, rights do not issue forth from Nature or from our Creator, but only exist as a social construct and enforced by the society that creates it.

However, in the United States, the Declaration of Independence is what lays out the principles upon which the Constitution and all other laws are established. In essence, it is the foundation on which the societal construct of our government is built. The document specifically mentions two principles that underlie everything: that individual human beings have inalienable rights and that government is established by human beings to protect those rights. No matter how the concept of rights is interpreted by people or governments in other parts of the world, in this country the presumption is that these rights are inalienable, issuing forth solely from the existence of human beings themselves.

When the government here no longer works to protect the rights that we have put it in place to protect, it is failing in its primary task. When it actively works to undermine those rights, it has become treasonous.

[Walt Sherrill]

When the government here no longer works to protect the rights that we have put it in place to protect, it is failing in its primary task. When it actively works to undermine those rights, it has become treasonous.That, I think, is a good summation. And I agree with what this writer and the Rabbi have both written on this point.

Rights are just theory without enforcement or champions. And it may be that WE will have to do the enforcing, as government seems increasingly confused about its purpose.

Earlier, a respondent wrote:

Inmates in maximum-security prisons often manage to arm themselves, so it would appear that the right to arms exists even without government approval. The only sure way to deprive someone of an inalienable right is to kill him.If they're in a maximum-security prison, what happened to their inalienable right to liberty/freedom?

If a person can be deprived of his or her inalienable rights by killing them, the right to life is clearly NOT an inalienable right...

Capital Punishment proves that. Murder proves that. Getting killed by a drunken driver proves that... And then there is the child molester who rapes and murders a young girl. What happened to HER inalienable right to life?

There are no inalienable rights. There should be, but there aren't.

There are "rights" that are given special protections or valued more highly by society, and LIFE and PROPERTY are chief among them. When these rights are attacked, society often imposes special sanctions on those who do the attacking -- if they're caught. They often aren't.

I commented earlier about the NATURE of the problem, and The Rabbi expanded on the points I was making. He wrote, in effect, that it's all theory unless someone or something acts as a champion. He then proposed the outlines of an action plan: proselytize, convert, get others involved in gun ownership. We must, in effect, become our own champions and recruit more.

Just telling others we have a RIGHT to keep and bear arms (because the Constitution says its so) is meaningless, unless a lof other folks agree.

The Right to Keep and Bear Arms was based on English Common Law and right to self protection; we can see that in Great Britain the right to self protection doesn't include the right to keep and bear arms. It could happen here, too.

Seems as though we need to start making converts, before its too late.

How do we get there from here?

[cuchulainn]

I'm always amused at 2nd Amendment discussions that involve two sides saying their truths past each other. Both often are correct, but only to the point that they fail to see the other side is correct too.

The rancor in this thread is due to an incorrect assumption of mutual exclusivity between inalienable rights and legal restrictions. The truth is that rights are both inalienable and subject to restriction. One truth is a matter of philosophy and one is a matter of law. One truth is not a magic that negates the other. Infringement by law does not negate a right and vice versa.

I think both sides might be confusing the concept of rights (inalienable) and the concept of liberty (the legal freedom to exercise one's rights). In other words, liberty is a legal expression of rights – it is how the law interprets and deals with a philosophical concept within the bounds of society. The two rarely are identical. Thus while infrignement by law does not negate a right, it does negate the liberty, so the liberty rarely is a pure reflection of the right it expresseses.

Yes, the BoR is subject to legal limitations on liberty. This is an undeniable fact. We can argue that is wrong, but we cannot deny it is a fact. For example, the 1st is limited by libel laws, perjury laws, marketing-fraud laws, child-porn laws, the law that protects the POTUS against threats, etc.

However, I'd point out two differences:

1) Narrow vs. Broad
The rest of the BoR is protected broadly, while the 2nd is protected narrowly. If the 2nd were protected as broadly as the 1st, for example, we'd have 90% of our RKBA concerns solved. We'd probably live happily with the few legal restrictions left over -- such as no guns for the insane.

2) Actual vs. Fear of Potential
Besides being narrow, the restrictions placed on the rest of the BoR typically involve actual problems, such as libel, etc, while the restrictions placed on the 2nd typically involve fear of potential problems. We'd solve even more of our RKBA problems if we were to lmit the restrictions on the 2nd to actual problems -- such as no guns for the insane rather than no magazines of X-round capacity for anyone because <1% of the people potentially, might, maybe have a particular type of insanity that possibly could, perhaps lead them to go on a killing spree.

In any event the concept of inalienable rights is indeed a philosophical social construct. But it is one that I believe is most valuable. It helps hold the line against broad laws that address the fear of the potential.

It helps hold the line against empty, meaningless liberties.

It is a mindset that we're losing to our own detriment, and it's not just about the RKBA


((((Incidentally, the 2nd ought to and could apply to the states through the 14th amendment, but it doesn't because the courts haven't incorporated it yet (don't hold your breath).)))

[Rev. DeadCorpse]

I'm still trying to figure out why the hell most of you seem bent on just giving up. Yes. The Government is infringing our Rights. Yes. More people exercising those Rights would help. Yes. Stare Decsis abuse by the Supreme Court has led us to this point.

That some of you just kind shrug your shoulders and go on about your merry lives makes me sick. :fire: What the hell is wrong with you people? Can't you read plain English? The very document that is our Governments contract to do only certain things, and no more, is being ignored... and more than a few or you are using their arguments for MORE power against yourselves. You surrender 3/4's of the argument before ever getting near a solution.

Immoral. Idiotic. Pacifistic. Trolling for a flame war. Or worse, some of you people may be playing the Judas to suck up to your political masters.

People like me free countries from tyrannies and Kings. People like some of you arguing away your natural Rights are those who think Kings and tyrants only kill some people and that isn't so bad. :banghead:

[The Rabbi]

Immoral. Idiotic. Pacifistic. Trolling for a flame war. Or worse, some of you people may be playing the Judas to suck up to your political masters.

People like me free countries from tyrannies and Kings. People like some of you arguing away your natural Rights are those who think Kings and tyrants only kill some people and that isn't so bad.

ROFLMFGDAO!!! :neener: :neener: :neener:

[Rev. DeadCorpse]

ROFLMFGDAO!!

About what level of discourse I expected.

[The Rabbi]

About what level of discourse I expected.

And deserve.

Close thread, anyone?

[SteveS]

Look up "unalienable" some time. Or are you one of those who has a vested interest in maintaining, or heaven forbid, expanding the status quo?

I knew what it was before I ever posted on this thread. As for the second questions, No.

Me. I want my Rights back. A Right isn't a Right if you have to ask permission. Either we acknowledge these Rights as they were intended by the Founders, or we stop pretending to be a society of Freedom and Indivuduals.

Where did I say that I didn't want my rights back or that I never wanted rights? As for what the founders intended in regards to the BOR, they intended that it only apply to the federal government. They also believed it was up to the states and the people to acknowledge and preserve their rights.

[cuchulainn]

Rev. DeadCorpse: That some of you just kind shrug your shoulders and go on about your merry lives makes me sick.No one is doing that. Everyone here is on the same side, with similar goals.

The problem is that you've missed the point, which is to operate from the way things are, not the way they ought to be.

Pointing out the undeniable fact that rights have always -- ALWAYS -- been subject to infringement under the U.S. legal system does not necessarily mean we like it, want it or agree with it.

The Rabbi has been a bit curt and cute in making his point. His subtlty has been lost on the hotheads. I don't particularly like The Rabbi's style for this reason, but at least I get his point.

The Rabbi: Close thread, anyone? Yep, it probably should be closed.

Hey folks, I don't entirely agree with everything The Rabbi says either, but the hyperbole and invective against him is absurd. You’re embarrassing yourselves and revealing your inability to get subtle prodding.

[Rev. DeadCorpse]

The problem is that you've missed the point, which is to operate from the way things are, not the way they ought to be.

No. I reject the point. There is a difference. I've also got history and objective reality on my side of the fence. I have no illusions about how things are. Unlike some of the posters on this thread, I also have no illusions about how things will continue to be if we don't change our attitude.

The minute you start thinking your Rights are alienable and fungible, you give up half the argument. No thanks. That hasn't worked so well the last 70 years. Would you compromise and allow yourself to be only half-dead? Then why compromise and be content with being only half a slave?

[The Rabbi]

The minute you start thinking your Rights are alienable and fungible, you give up half the argument.

Right are alienable. That has been shown many times on this thread.
Have you actually looked up the word "fungible"?

You seem to have this idea that if you just scream "its my right!" loudly and obnoxiously enough then you'll get it. It doesnt work that way. It isnt obvious to people on this thread, all of whom are pro-gun, that rights are inalienable and absolute. It sure isnt obvious to the people outside this forum.

[Rev. DeadCorpse]

Rights are alienable.

That is my point. ONLY if we let them be. It is also demonstrably NOT what this country was founded on. Nor is it the ideal for the human condition. Nor do societies that fail to respect individual Rights last very long.

If this isn't "obvious" to all of you, then this isn't the web forum I thought it was either. Especially if some of you would just rather lick the hand that feeds you rather than stand up for what should be yours without having to ask.

Detestable.

And yes, "fungible" works as it denotes being traded away. Of course, if you can't use a dictionary it is no wonder you haven't a clue about anything else.

[The Rabbi]

That is my point. ONLY if we let them be. It is also demonstrably NOT what this country was founded on. Nor is it the ideal for the human condition. Nor do societies that fail to respect individual Rights last very long.

Every one of those statements is false. False philosophically and false historically.

And yes, "fungible" works as it denotes being traded away. Of course, if you can't use a dictionary it is no wonder you haven't a clue about anything else.

No, fungible connotes being exchangable in equal measure. Probably not what you meant.
http://dictionary.reference.com/search?q=fungible

Your knowledge-base is poor. Your language skills are poor. Your power of reasoning is poor. I dont see any reason to respond anymore. Thanks.

[Don Gwinn]

Hey, see that thin, dark ribbon, waaaaaay the hell up there on the mountain? Long way, huh? That'd be a heck of a climb, wouldn't it?

That's the High Road. You're supposed to be on it, folks.

NO PERSONAL ATTACKS.

[cuchulainn]

Rev. DeadCorpse: Unlike some of the posters on this thread, I also have no illusions about how things will continue to be if we don't change our attitude.

The minute you start thinking your Rights are alienable and fungible, you give up half the argument. I don't share your fear that acknowledging reality will make our resolve weaker. You're also way off basis in assuming people here (including The Rabbi) are unaware of the track we're on.

Here's your problem. You're missing The Rabbi's subtlty. This leads you to wrongly ascribe motive and beliefs to him without any basis. One of the things you're assuming without any basis is that The Rabbi has given up.

You're angry about the RKBA's problems. You want to lash out. However, you'd do better to take the time to try to understand his point rather than assume he's saying things he is not saying.