[hugh damright]

I have noticed a few things about the way that the Second Amendment is read which I would like to comment on. Of course, I am not suggesting that anyone here is purposely changing the Second Amendment to fit their view, but chances are that if you bother to study the Second Amendment then you have often been presented with a modified version.

First, there is the matter of grammar, punctuation, and capitalization. Some people have removed commas from the Second Amendment, which seems kind of disrespectful to me. I think this is done with the intent to belittle the first clause, which regards the collective defense of a free State, and then spin the first clause to just be some introductory or subordinate clause there just to lead up to the second clause.

Also, in the first clause, the word "State" is often changed to have a lower case "S", as if the word "State" doesn't mean "State" as in my State of Virginia.

Then the meaning of the second clause is interpreted in a couple of special ways, such as by construing the word "people" to mean "persons", as if the intent is that every individual must be armed no matter what their criminal past or mental state. And then the part about "shall not be infringed" is taken so out of context that it is assumed that all gun laws, state and federal, must be unconstitutional.

I think it's important to remember that the amendments were drafted by Madison, who had a federalist/nationalist intent of a BOR that would limit the States and federalize individual rights ... but Madison's intent failed, and we got a BOR which only limited the federal government. Since the Amendments were drafted by Madison, and since Madison's intent failed, I think perhaps too much is made of the way the amendments are worded. I think the easiest thing to do is to read the BOR and see Madison's intent of a national (rather than federal) document, to see a bill of civil rights rather than political rights.

I have noticed that if I look at other examples, such as the 1776 Virginia Declaration of Rights, that it would take more than a few grammatical reconstructions to spin away its meaning:
That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

And I will close with the Second Amendment, with punctuation and capitalization as provided by the national archives at http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html:
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.

[griz]

So what do you think that amendment means? If you say that it means the government can maintain a militia, and then say that now means the national gaurd, then my next question is why stick a governmental power in a document that lists only individual rights.

[MrTuffPaws]

A well regulated Militia: Who makes up a militia? Answer, the people.

Why do we need a militia? Answer, to maintain the the security of a free State

If the people are the militia, how are they armed? Answer, the right of the people to keep and bear Arms, shall not be infringed., in other words, personal ownership.


As for the word “regulated’, at the time, it meant well functioning, as in clock work. In fact, if you look through the written works of the time, you can find mentions of “regulated watches”.

[benEzra]

Look closely at the grammar. "A well-regulated militia, being necessary to the security of a free State" is a preamble; the statement of the right is contained in the phrase "the right of the people to keep and bear Arms, shall not be infringed." Although the preamble does indeed concern "militias" as you state, the amendment does NOT read "the right of the militia," but the right of the "people." This is the same "people" as in the 1st, 4th, and other amendments, so the argument that it refers to the government is specious.

For clarity, consider a grammatically identical sentence with the nouns changed:

"A well educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed." Stated this way, the right of keeping and reading books would not be limited to the well-educated only, or to those who are registered to vote; rather, it is a right recognized as belonging to all, as a necessary precondition to the the hoped-for result (i.e., a well-educated electorate) stated in the preamble. The "well-regulated militia" was/is likewise a hoped-for result of the 2ndA, not a precondition. The Federalist #46 also touches on the concept in passing, and if you run the numbers that (Hamilton?) used against the population of the United States at that time, you will see that his use of the "militia" encompassed every male citizen of fighting age.

Also, keep in mind some shifts in usage since 1791. Today, the predominant meaning of the participle "regulated" means "governed by government-imposed rules." There is another meaning, older and less common, meaning "well functioning"; "a well-regulated watch," for example, or Civil-War era professional soldiers begin referred to as "regulars." Not having a copy of OED handy, I can't put a date or frequency on this, but it's a thought. But again, that's the preamble. FWIW, the 2nd Amendment is arguably the most regulated (in the modern sense) of all the rights recognized by the Bill of Rights, although few non-gun-owners are aware of just how arcane the regulations can be.

BTW, the term "militia" refers to ordinary citizens, not professional soldiers. Here is U.S. Supreme Court on the term, from U.S. vs. Miller:

[from U.S. vs. Miller:]
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (emphasis added)
If you are male and between the ages of 17 and 45, U.S. Federal law defines you as part of the militia (the relevant statute was written back when only males were allowed to serve in the military, so modern jurisprudence would apply this to females as well).

Here's an excellent review of the peer-reviewed legal literature as it stood in 1996, and if anything the consensus for an individual-right interpretation is stronger now than it was then:

Under Fire: The New Consensus on the Second Amendment [45 Emory L.J. 1139-1259 (1996)]. (http://www.guncite.com/journals/bk-ufire.html)

This page (http://www.guncite.com/gc2ndpur.html) and this page (http://www.guncite.com/gc2ndcont.html) also have a lot of information on the founders' own commentary on militia/Second-Amendment issues.

[TallPine]

hugh, you quoted the following in your argument:

That a well-regulated militia, composed of the body of the people

Doesn't that answer you own "dam" question? damright, it does :p :D


construing the word "people" to mean "persons"
Well, just what do you construe the word "people" to mean....? :confused:

Dogs...? Martians...? Donuts...? Or only persons wearing a badge...?


I'm sorry, but this stuff gets old .....:(

[rick_reno]

I'm quite sure that the word "people" as used in the 2nd has the meaning as when it's used in the 1st and 4th. It's very clear what the 2nd Amendment is stating.

[Gordon Fink]

I smell another troll. :mad:

Let “hugh” prove himself first, if he actually wants to have a reasonable debate about the meaning of irrelevant Constitutional amendments.

~G. Fink

[cosine]

Also, in English grammer a comma can be used as a substitution for the word "and." If you substitute "and" for a comma in the 2nd Amendment, it would read: "A well regulated militia, being necessary for the security of a free state and the right of the people to keep and bear arms, shall not be infringed.

That says that the government cannot infringe upon a militia and cannot infringe upon the right of people to keep and bear arms. Those are two different provisions in the 2nd Amendment. The phrase "being necessary for the security of a free state" is merely a comment upon the necessity of a militia.

[geekWithA.45]

Everyone stopped obsessing over commas ages ago, the concensus is that they do not materially affect the meaning.

Hugh, read and absorb these, and then get back to us.

http://www.constitution.org/mil/rkba1982.htm
http://www.usdoj.gov/olc/secondamendment2.htm
http://www.guncite.com/journals/reycrit.html

[Harve Curry]

This version from the Second Amendment Primer, by Les Adams.

[cosine]

Everyone stopped obsessing over commas ages ago, the concensus is that they do not materially affect the meaning.

I'm pretty new to this, and have never heard that. You learn something new everyday. That is good.

[Werewolf]

OK...
OK...

The TROLL has been fed enough.

Move along - nothing to see here...

[hugh damright]

This version from the Second Amendment Primer, by Les Adams.
OK ... and the version I provided was from the original handwritten manuscipt in the national archives, to which I provided a link. So which version is correct? And if the Second Amendment Primer has the Amendment incorrect ... isn't that a little odd?


Well, just what do you construe the word "people" to mean....?
In the context of a free State, I construe the word "people" to refer to the collective of people, the political body which is the free State. But in the context of a Union, I construe the word "people", as in "We the People", to refer to the fifty political bodies which are the States. In other words, I see Virginians as a People, and the US as fifty People (and fifty Militias).

But I think my point was that it is one thing to say that the people shall not be disarmed, and another to say that no person shall be disarmed. We still see the proper grammar in formal use, for instance a sign will say "occupancy by x number of persons is unlawful", but in modern casual use we would speak of how many people were in the room. There's no need for anyone to get uppity, all you have to do is hit a couple dictionaries and see what they say about the words "people" and "persons" and how their use has changed over time.

[Carl N. Brown]

In the Constitution, government entities have Powers and Authorities.
and Article I Section 8 gives the Congress the power to raise the army;
to arm, organize and discipline the militia; and call out the militia to
suppress insurrection, enforce law and repell invasion.

In the Constitution, there is one mention of a right: inventors and
authors have the right to protection of their works; and one privilege:
habeus corpus (a privilege not a right because it can be suspended
in wartime). And congressmen cannot be jailed while Congress is
in session, a congressional privilege of individual congresspersons.

The United States, the States, the Congress have Powers and
Authorities; they do not have Rights and Privileges.

The anti-federalists wanted a Bill of Rights to protect individual rights
from government infringement, so we got the Bill of Rights that starts
off "Congress shall make no law...."

The actual phrase "right of the people" appears in the First, Second and
Fourth Amendment. The interpretation of the Second Amendment as
an individual right, like First and Third through Ninth Amendments
are individual rights, is called the "Standard Model" interpretation,
even by Carl Bogus and Michael Bellesiles.

If Congress has the Power under US Constitution Article I Section 8
to arm the militia, why should there be a protection that Congress shall
make no law infringing the Right of the People to keep and bear arms,
if the People in the Second Amendment are the State, and not the
People People of the First and Fourth Amendments?

Law Prof Donald B. Kates has a good, brief write-up of the Second
Amendment in Encyclopedia of the US Constitution. Basically,
Second Amendment is about individual rights like the rest of the BoR.







{The troll has been fed? I have found no mention of goats in this
thread. Trolls live under bridges and ambush goats don't they?
Or is a Troll someone who fishes with bait (trolling)?}

[geekWithA.45]

People = collective or states, depending on context?

Hugh,


The fantasy you're weaving/bought into of the collective right of arms is false.

And like I said, read and absorb those links before you get back with us, as they represent deeper grammatical and syntatical analysis than you've demonstrated thus far.

[DRZinn]

I don't give a damn what it means.

I have the right to defend myself from those who would infinge upon my human rights, by any means I deem necessary. Including firearms.

[hugh damright]

If Congress has the Power under US Constitution Article I Section 8 to arm the militia, why should there be a protection that Congress shall make no law infringing the Right of the People to keep and bear arms, if the People in the Second Amendment are the State, and not the People of the First and Fourth Amendments?
The States are the people, and the people are the States. Virginians are Virginia. I don't understand how we can talk about free States as if the free State is one thing and the people another .. the whole point of a free State is that it is inseparable from the people. I am not Sarah Brady, I ain't even blonde ... I cannot conceive of the notion that Virginia has the RKBA and Virginians do not.

During the Virginia Ratification Debates, when the Second Amendment was being considered, Patrick Henry said that his primary concern was the federal power over the militia. I think it was feared that this power in Section 8, the federal power to arm the militia, would somehow become the power to not arm the militia or the power to disarm the militia. And so that is why it was felt that there should be protection of a declaration that Congress shall make no law infringing on the RKBA.

The way I understand it, the only federal protection of our individual RKBA is as it pertains to militia.



Law Prof Donald B. Kates has a good, brief write-up of the Second Amendment in Encyclopedia of the US Constitution. Basically,Second Amendment is about individual rights like the rest of the BoR.
I'm sorry, but people here are suggesting that I read things which I have already read. As I recall, Kates believes that the Second Amendment is about the individual right to shoot burglars.

[geekWithA.45]

Well, Hugh, if you've read those articles and rejected the premise of RKBA as an individual right, I guess we're done.

Thanks for stopping by and playing.

[hugh damright]

if you've read those articles and rejected the premise of RKBA as an individual right ...

That brings up a good point ... many people think the Second Amendment is symbolic of all facets of the individual RKBA, such that if I were to say, for instance, that the Second Amendment doesn't protect CCW, then it would be assumed that I am opposed to CCW.

In this instance, someone is saying that I do not accept the RKBA as an individual right, which is false. Of course there is an individual RKBA, for self-defense, for hunting, for plinking ... whatever ... but I do not see the Second Amendment as regarding these things. I believe that it regards the RKBA as necessary to the security of a free State i.e. militia. I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.

[TexasRifleman]

I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.

Well, when you are appointed Attorney General you may interpret as you wish. The last Attorney General to interpret this amendment disagrees with you.

Good luck in law school!

[hugh damright]

I also think that constitutional law outweighs an editorial by the AG.

[Carl N. Brown]

If the People who have the right to peaceably assemble under the
First Amendent, the right to be secure against unreasonable search and
seizure under the Fourth Amendment and the right to keep and bear
arms under the Second Amendent, are not individuals, what are they?

It is hard for me to believe that the lawyers who wrote the Bill of Rights
used the word People to mean two or more different entities.

[Tomcat1066]

I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.


So tell us, are you a Constitutional Scholar (as in formally educated in such matters)? Are you a Constitutional law attorney?

If not, then you feel free to believe what you will and I'll just be thankful you're in no position to interpret the law for me.

Tom

[geekWithA.45]

The way I understand it, the only federal protection of our individual RKBA is as it pertains to militia.

hugh damright



....As developed in the analysis below, we conclude that the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units. Our conclusion is based on the Amendment's text, as commonly understood at the time of its adoption and interpreted in light of other provisions of the Constitution and the Amendment's historical antecedents. Our analysis is limited to determining whether the Amendment secures an individual, collective, or quasi-collective right....


Office of The US Atty General



Claiming that your view IS constitional law, smeering any other viewpoint as "gun magazine editorials", and sticking your finger in your ears when presented with contrary evidence isn't scoring any points for you, or your position. Crafty slicing and dicing of words isn't going to save you either.

[armoredman]

Never mind.

[TexasRifleman]

I also think that constitutional law outweighs an editorial by the AG.


Of course you do. You clearly think lots of things that no one else does.

Read the USSC rulings on Miller. The Supreme Court discusses it's belief of the word "militia" in the 2A, as well as other things that you disagree with.
Funny, none of them agree with you either.

I suppose you don't think the Supreme Court has any business dealing with Constitutional Law?

After your stint as Attorney General, maybe the Pres will appoint you to the Supreme Court. You are certainly destined for greatness!

[hugh damright]

Miller says exactly what I am saying, which is that the Second Amendment only protects the individual right as an aspect of militia. In the Miller case, they said that they were not sure that a sawed-off shotgun was a militia weapon, and therefore they had no jurisdiction over it.

I've read US v Miller, Miller v Texas, US v Cruikshank, Presser v Illinois, and I'm sure there are others I cannot think of at the moment. They all say the same thing. And they reference lots of other cases. And there is not one single SCOTUS case in all of history that says otherwise.

[Wiley]

Hugh,

Welcome to THR.

Now, your commentary on punctuation and capitalization is a red herring. Or more properly a BLUE herring.

Punctuation, capitalization, and spelling were not as formalized as they are today. In fact, the printers of the day were expected to take what someone wrote and make any corrections and adjustments they felt necessary.

In keeping with that, most people were illiterate requiring that printed material was going to be read aloud. An example is the King James Version of the bible. Aloud it flows; read silently it's pathetic. It was written to be read aloud. AS WERE MANY OF THE POLITICAL DOCUMENTS OF THE REVOLUTIONARY PERIOD. That explains most of the extraneous comma and caps.

The writings you speak of were notes, drafts that were read to the Congress Assembled. Not the final wording, and certainly not what the Printer finally set in type.

To change the subject:

Both Alan M. Dershowitz and Laurence H. Tribe disagree with your analysis that the Second Amendment is a ‘collective’ right.

(Dershowitz and Tribe are Full Professors at Harvard Law School and, arguably, the finest Constitutional scholars of this century. Tribe's ‘American Constitutional Law’ is THE text on Constitutional law. Both are very liberal, hate guns, and in the case of Dershowitz would like to repeal the Second Amendment. Tribe is an attorney for the Democratic National Committee.)

“...Tribe thinks the Second Amendment assures that "the federal government may not disarm individual citizens without some unusually strong justification." Tribe posits that it includes an individual right, "admittedly of uncertain scope," to "possess and use firearms in the defense of themselves and their homes."...”
(‘Scholar's shift in thinking angers liberals’ by Tony Mauro, USA TODAY on 08/27/99)

Alan Dershowitz says: “[Those] who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right [are] courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.”

With respect to Dershowitz‘s statement: (1.) Five of the first ten Amendments use the phrase ‘the people’ . You would have us believe that four are individual rights and one is a ‘collective’ right with NO differentiating clause. (2.) The Constitution was designed to limit the powers of the Federal government with respect to the several States and, more importantly, the individual citizen (‘the people’).

[Molon Labe]

The way some of you talk, you act as if your RKBA depends on the existence of the Second Amendment. :rolleyes:

Quite frankly, I'm sick of hearing about the Second Amendment. Stop giving it so much importance. When I argue about my RKBA, I make it a point to never bring it up...

[cosine]

The way some of you talk, you act as if your RKBA depends on the existence of the Second Amendment. :rolleyes:

Quite frankly, I'm sick of hearing about the Second Amendment. Stop giving it so much importance. When I argue about my RKBA, I never bring it up.

Molon Labe, even though the RKBA does not depend upon the existance of the 2nd Amendment, the fact is that the 2nd Amendment is the only legal recourse we have in today's leftist, anti-gun society to keep from becoming criminalized because of our dedication to RKBA.

[Molon Labe]

Miller says exactly what I am saying, which is that the Second Amendment only protects the individual right as an aspect of militia. In the Miller case, they said that they were not sure that a sawed-off shotgun was a militia weapon, and therefore they had no jurisdiction over it.Hugh, I really don't give a crap what that amendment says. So let's assume you're right, and the Second Amendment guarantees a "collective" right or whatever. So what? What does that have to do with me? I believe I have an inalienable right to keep and bear arms, I do not need to justify it to anyone, and that's that. I don't need a damn amendment to concur with me on this issue.

[Molon Labe]

Molon Labe, even though the RKBA does not depend upon the existance of the 2nd Amendment, the fact is that the 2nd Amendment is the only legal recourse we have in today's liberal society to keep from becoming criminalized because of our dedication to RKBA.Sorry to break this to ya, bub, but the Second Amendment isn't going to save you. Never depend on the government to protect your inalienable rights. It's ultimately your job to defend your rights, not the government's.

This Amendment worship is making me nauseous...

[cosine]

Sorry to break this to ya, bub, but the Second Amendment isn't going to save you. Never depend on the government to protect your inalienable rights. It's ultimately your job to defend your rights, not the government's.

This Amendment worship is making me nauseous...

I fully understand that the 2nd Amendment isn't a protective blanket, but as long as we are able to work within the framework of the legal recourse of the government to protect our rights, including the RKBA, the less we look like dangerous nutjobs or future criminals because of our interest in firearms and the RKBA.

[Gordon Fink]

[M]any people think the Second Amendment is symbolic of all facets of the individual RKBA, such that if I were to say, for instance, that the Second Amendment doesn’t protect CCW, then it would be assumed that I am opposed to CCW.

For the record, the Second Amendment does legally protect the carrying of a concealed weapon, as does the Fourth, the Fifth, the Ninth, and surprisingly the Tenth.

~G. Fink

[Baba Louie]

it is my opinion that constitutional law outweighs gun magazine editorialsGood point, that opinion thing, Hugh. The SCOTUS once ruled that it was A-OK for a non-white 3/5 citizen to be owned by a white 5/5 citizen and that was that... the law of the land... their opinions... until a few editorials fomented enough counter-opinion to form new opinions brought about due to conditions that particular SCOTUS ruling said were just peachy-keen... legally that is.

Hugh, you may be 100% correct in your "collective" interpretation... as it takes a quantity of individuals to make up a "collective"... and each individual was ordered to show up at his local "militia" training field already armed... with his own firearm & 25 rounds... since it takes a group of armed MEN to stand up to any form of governmental tyranny in an attempt to stop whatever unacceptable practices they are engaging (unless your name is Booth, Oswald, Hinckley, Fromme, etc) as one tries to live in a "free State".

And then the part about "shall not be infringed" is taken so out of context that it is assumed that all gun laws, state and federal, must be unconstitutional.That could be because the citizens of several towns and cities in the original colonies had their citizens disarmed, individually and collectively, I might add, by their government officials and soldiers... and they kinda didn't like the way that worked out for the individuals so affected during that revolting war that followed.

The 2nd just tells Congresf that IT shall not infringe on that individual right of each person or in your opinion, collectively, "The Right of the People"... (that is, a group of individual beings) striving for freedom & liberty. (Like they're going to actually abide by old dead guy rules...) Because as we all know, no matter how brief, how lengthy, how correct or incorrect each passage is within the Constitution and its related Amendments; those elected and appointed officials within our Federal Gov't (and some state gov'ts as well) will always see to it that they are the one's sitting in the driver's seat; with their boot-licking toadies who keep them propped up in power agreeing with their every word and action... just like there will always be those who can still read, think and act for themselves and who know exactly what those 27 words mean and why they were added to the Constitution before ratification would occur.

But don't worry. If you don't like that language or latest interpretation of that language, or any other portion of the rules and regulations spelled out for the running of our government... don't worry, just ignore them. That's what our government officials do and have always done. Swear to defend the Constitution after elected then do whatever they can to get rich while they're in office. Works for them. Oughta work for you too.

[cz75bdneos22]

i'll post my way of reading it as i understand it...i could be wrong...i am here to learn..
current version:
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

James Madison's "draft": as brought to the floor of the U.S. House in early 1789...(Aoc pp.451 memory.loc.gov/cgi-bin/ampage?

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

this would ultimately become was is now know as the Second Amendment to the Bill of Rights. it is this version that was ultimately ratified by the states circa Sept. 1789

if anyone has been to National Archives in Washington, taken pictures of the "original" Constitution...please share. i don't have mine, but i have common printed versions of it.

militia-an armed citizenry..
State- USA at time of ratification..not "individual" states per se...( virginia, maryland etc.)
Keep and bear arms- in defense of "State"...see above.
Arms-rifles, cannons and swords...
Shall not be infringed- violated...

due to compromise between the factions, it (2nd) protected the rights of individuals to own "arms" as they might be called upon to serve in the militia at any given time..the times were still turbulent in the first 25 years of our still burgeoning (sp)new nation... Militia was in reference to the armed citizenry at large. however, no one was under an obligation to serve...When the Congress established the National military branches to defend the new USA, the "militia" became a moot point. The USA military branches have been serving a can-of-whoopass ever since their inception... that's my take on the intencion of the Congress then. Modern interpretation as to the "now" implications of the (2nd) are subject to debate..as they should in a representative democracy...it's called a living document for a reason:what: isn't it? :scrutiny:
Do i make any sense?....I dunno...:uhoh:
anyways, if anyone of us nowadays gets called to a "militia" in defense of State...heaven help us!
TRULY the SHTF and we are up to our necks in it...no amount of .50bmg's or FAL's or you name "it" is going to stop Armageddon (sp) y'all. peace, el rancherito.:neener:
i forgot to say...that why exercising your right to vote is a necessity...do your part, i'm trying to do mine...we can at least agree to disagree can't we? Vote, damn it! the future is in the balance....left-right, left-right...no easy answers, just hard questions...Oh!, say can you see...by the dawns early light...Support the sport, thats all folks...:p one last thing, :banghead: unfortunately today, "militia" carries with it a negative connotation. such as, a fringe- element organization (group) intent on bringing down the "Government" by nefarious means. Now, i could be wrong...:o


No matter how long the night...the morning will come...

[hugh damright]

(1.) Five of the first ten Amendments use the phrase ‘the people’ . You would have us believe that four are individual rights and one is a ‘collective’ right with NO differentiating clause. (2.) The Constitution was designed to limit the powers of the Federal government with respect to the several States and, more importantly, the individual citizen (‘the people’).
(1)Well, no ... I think the clause that says "a well regulated militia is necessary to the security of a free State" might qualify as a "differentiating clause", at least it seems clear to me that militia and the defense of a State are collective affairs ... and the Tenth Amendment also refers to a collective or States' right ... so I'm not saying that the Second has to be read in some unique way. Actually, I think the people who insist that "State" doesn't mean "State" are the ones that that are trying to read the Second Amendment in some unique way.

(2) Yes, I agree ... the Federal government is not delegated power to disarm the militia or the people or the individual, nobody, unless of course they commit a federal crime and come under federal jurisdiction. But neither is the federal government empowered to infringe on the police powers which are reserved to the States and which include gun control powers.

I think instead of just individual and collective rights, it helps to bring political rights into the picture. For instance, my Virginia Bill of Rights declares that government should have separate branches, which seems to be declaring a principle of free government, a principle that is "right" according to a system of free government. Another political right is that the proper defense of a free State is not a standing army which could turn on the people but rather militia composed of the people, or at least the military must be subordinate to the civil power.

[pax]

Moderator Note:

Folks, this is The High Road. Some of you have forgotten what that means; I urge you to go read the forum rules (http://www.thehighroad.org/code-of-conduct.html) and refresh your collective memories.

If you think this fellow is a troll, you can ignore him and I urge you to do so.

But if you think his arguments are worth answering, please do so in a well-mannered way. Attack the argument, not the arguer.

Thanks.

pax

[hugh damright]

Thanks, pax, I must admit that in my mind I was starting to call this forum "the low road".

By the way, for all the people who keep saying I am a "troll", I started this thread because someone here sent me a message and asked me to.

Back to the topic ... one person said that the Bill of Rights, and I presume the Constitution too ... he said that the original documents in the national archives are "just notes", and I was wondering if anyone else felt that way. Personally, I think they are not "just notes", I think they are the ultimate original source and that is why they are in the archives.

[ReadyontheRight]

It says "people" quite a few times in the BOR. By your argument Hugh, "people" is supposed to mean "state government?". So I guess only the 50 states can peacably assemble, or only the houses of state government are to be secure in their persons papers and effects. And I guess Amendment X mentions "the states" and "the people" separately just because they had extra parchment to fill?

Your reference to "Hunting" and "Plinking" are an affront to the rights we hold dear.

READ THE BOR: !

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II
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.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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

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.

[Nematocyst]

Whew.

I walk among giants in this thread.

Grammar & punk-tuation, indeed. :cool:

Nem {w/ a 642 in my right pocket, even if the NSA may read this post ... :uhoh: }

[ReadyontheRight]

Thanks, pax, I must admit that in my mind I was starting to call this forum "the low road".

Hugh -- This forum is all about the continual fight for the people to keep and bear arms.

I am continually AMAZED how well the people on this forum behave in light of what is at stake and I am offended that you would call this "the low road".

We all appreciate and enjoy a good debate, but you wade in here on post #1 saying that "THE PEOPLE" are really "THE STATE" and then claim to be offended by some coherent arguments against your opinion.

Forum rules only allow me to utter....Sheesh!

And to ask you "Without a gun, how do you presume to protect you, your family and your way of life??"

Please REALLY think about it.

Is protecting you, your family and your way of life the job of other folks? Are these other folks smarter than you? Do they like you? Do they agree with you? Do you even know them?

I hope so...

Because in your world...they have all the power.

[cosine]

Whew.

I walk among giants in this thread.

Grammar & punk-tuation, indeed. :cool:

Nem {w/ a 642 in my right pocket, even if the NSA may read this post ... :uhoh: }

Referring to my commas post? I wasn't aware that it had been all hashed out before. :o :o

[hugh damright]

It says "people" quite a few times in the BOR. By your argument Hugh, "people" is supposed to mean "state government?". So I guess only the 50 states can peacably assemble, or only the houses of state government are to be secure in their persons papers and effects. And I guess Amendment X mentions "the states" and "the people" separately just because they had extra parchment to fill?
No, I did not say that "people" means State government. I am saying that the US is fifty people. Perhaps if I quoted Madison's comment in the Virginia Ratification Convention:

Who are parties to [the Constitution]? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties.

Your reference to "Hunting" and "Plinking" are an affront to the rights we hold dear.
Some State Constitutions do in fact have a Bill of Rights which declare the right to keep and bear arms in defense of the State, of the self, for hunting, and for plinking. But the Second Amendment does not.. I don't see how I affront your rights by contrasting the State Amendments with the Federal Amendment.

And to ask you "Without a gun, how do you presume to protect you, your family and your way of life??" Please REALLY think about it.

Why in the world do you assume I don't have a gun? FYI, I have lots of guns, I have a CCW permit, I am a life member of the NRA and the GOA ...

[cosine]

Is protecting you, your family and your way of life the job of other folks? Are these other folks smarter than you? Do they like you? Do they agree with you? Do you even know them?

I hope so...

Because in your world...they have all the power.

Hugh, please sincerely think about some of the arguments put forth in this thread pertaining to a one's individual right to keep and bear arms. Please.
"Because in your world..." as well as in my world and all our worlds, it is extremely important.

[Nematocyst]

We all appreciate and enjoy a good debate, but you wade in here on post #1 saying that "THE PEOPLE" are really "THE STATE" and then claim to be offended by some coherent arguments against your opinion. +2.

Referring to my commas post? Cosine, no, FTR, not criticising you at all. Any reference was positive feedback. Keep going strong, younger brother.

Nem

[hugh damright]

you wade in here on post #1 saying that "THE PEOPLE" are really "THE STATE" and then claim to be offended by some coherent arguments against your opinion.

No, I am offended by the many snippy and snooty remarks made here, which I will not bother to go back and quote. I believe the moderator just stepped in and called you guys on it, and I simply agreed with the moderator.

[cosine]

+2.

Cosine, no, FTR, not criticising you at all. Any reference was positive feedback. Keep going strong, younger brother.

Nem

Okay, many thanks Nem. This is the first real debate I've ever been involved in about this topic. :)

[Nematocyst]

Attack the argument, not the arguer. Translation for those who read latin: 'avoid ad hominem'.

Thanks, Pax.

Nem

[ReadyontheRight]

No, I did not say that "people" means State government. I am saying that the US is fifty people.

Maybe I'm just missing something here.

Who ARE these 50 people and how can I add their e-mail addresses to my RKBA e-mail list?:evil:

Seriously...Hugh. I think I understand your point. You think the BOR only allows RKBA in the context of a militia. You are incorrect.

"The right of the people ot keep and bear arms shall not be infringed" means that:

The right.
Of the people.
To Keep.
And Bear.
Arms.
Shall.
NOT.
Be.
Infringed.

Regardless of punctuation or preamble.

I'm glad you own a gun or two, but you need to figure out who's side you're on.

[joab]

To believe that "the People" of the second amendment were a different people than those mentioned in the first and fourth amendments would be as hard as believing that Cinderella's slipper was the only thing not to turn back at midnight.

[xd9fan]

I dont see why we dont use the 9th/10th Amendments to create a better clearer version and stop this pointless debate.

[Nematocyst]

This forum
is the best thing
since sliced bread.

:cool:

Nem

[ReadyontheRight]

Taken from one of your first posts Hugh:

The principles are that all men are equal, therefore sovereignty resides in a majority of the people, and if only a minority is armed, perhaps only a standing federal army, they this minority might take over, so to ensure that the majority rules, the general population must be armed.

1. There is no REQUIREMENT that that general population must be armed. If there is, please let me know so I can terrify my Liberal neighbors with mandatory pistol practice drills.
2. The rules of the Constitution and Bill of Rights exist to protect the minority from the majority in a Democratic society - Hence the description "Constitutional Republic".
3. You seem to be pretty well educated. Doesn't "Tyranny of the Majority" (http://www.serendipity.li/jsmill/jsmill.htm) apply against your argument?

I appreciate your passion for argument. I hope you also have a passion for listening.

[carebear]

No, I did not say that "people" means State government. I am saying that the US is fifty people. Perhaps if I quoted Madison's comment in the Virginia Ratification Convention:

Who are parties to [the Constitution]? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties.

Not sure how you are interpreting this as excluding as equally valid an interpretation of "the people composing thirteen sovereignties" as "individuals composing thirteen sovereignties".

The context of this remark is not to redefine the nature of the individual into a collective in any way but rather to allay the fears of anti-Federalists that by redefining the identity of the citizenry as members of the new Republic their then primary relationship with their individual States would be negatively impacted.

Kind of a handholding "Yes, yes Tom, never fear, they'll still be Virginians first, voting for Virginian Congressmen to represent them."

The US isn't 50 corporate people (States) represented in the federal Government. The States are merely the mechanism through which effective representation of individuals is accomplished. This is mirrored in State government representation of local political subdivisions.

[Dannyboy]

And then the part about "shall not be infringed" is taken so out of context that it is assumed that all gun laws, state and federal, must be unconstitutional.

Then please enlighten us and tell us what it means when something is infringed.

[mnrivrat]

What we have here is a failure to communicate !

From Cool Hand Luke - if you were wondering !

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" #46

To me , this quote from Madison doesn't sound much like he was talking about a collective or state right . I can supply quotes from many of the founding fathers who also make it clear to me that they intended the right to keep and bear arms as an individual right.

When I read the 2nd amendment it is clear to me that the intent is to provide protection for the individual right to keep and bear arms.

Those that see it differently ( as only a state or collective right ) are simply wrong . No matter how they want to spin the words.

[Nematocyst]

What we have here is a failure to communicate !

"From Cool Hand Luke - if you were wondering !"
___________

A classic film, to be sure.

May I suggest a slight mofication of the reading of that line?,
(says the man who grew up just a few miles north of Miss'ippi).

"What we have he'ah ... is a fail'ya to com'moonicate."

<Add appropriate southern tang, and you got it...>

[Duach Laidir]

Down here in sunny Australia we only wish that we had a Bill of Rights to argue over; let alone the commas therein.:mad:

[hugh damright]

1. There is no REQUIREMENT that that general population must be armed. If there is, please let me know so I can terrify my Liberal neighbors with mandatory pistol practice drills.

2. The rules of the Constitution and Bill of Rights exist to protect the minority from the majority in a Democratic society - Hence the description "Constitutional Republic".

3. You seem to be pretty well educated. Doesn't "Tyranny of the Majority" <http://www.serendipity.li/jsmill/jsmill.htm> apply against your argument?



1. I'm thinking that there is no REQUIREMENT that the general population be armed because we no longer have well regulated State Militias. But I believe there was a time when it was required ... Webster's 1828 Dictionary says that "The militia of a country are the able bodied men organized into companies, regiments and brigades,with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.".


2. That's a really good point ...on one hand, whereas a monarchy or aristocracy is minority rule, a "free government" is majority rule, and so free government has mechanisms intended to ensure that no minority can take over ... and on the other hand, a free government also has mechanisms intended to protect the minority from the majority. I guess the point I need to make is that a Bill of Rights might stop a majority, but I think Madison believed that government barriers would stop them better. In my view, a most crucial mechanism included in our system of government to protect the minority from the majority is the separation of State and federal powers - Tenth Amendment federalism or "States' rights".

3. A "free State" and a "libertarian state" are not the same thing. I think a "libertarian state" refers to the highest degree of personal liberty. I think a "free State" is more of a commonwealth, where the object is not the highest degree of personal liberty, but rather the common good, the best for the most. Webster's 1828 Dictionary says that a "commonwealth is properly a free state; a popular or representative government; a republic; as the commonwealth of Massachusetts. The word signifies strictly, the common good or happiness; and hence, the form of government supposed best to secure the public good.".

[cz75bdneos22]

i agree with you on point # 3...;)

[Wiley]

Hugh,

You responded with:

Quote:
(1.) Five of the first ten Amendments use the phrase ‘the people’ . You would have us believe that four are individual rights and one is a ‘collective’ right with NO differentiating clause. (2.) The Constitution was designed to limit the powers of the Federal government with respect to the several States and, more importantly, the individual citizen (‘the people’).

(1)Well, no ... I think the clause that says "a well regulated militia is necessary to the security of a free State" might qualify as a "differentiating clause", at least it seems clear to me that militia and the defense of a State are collective affairs ... and the Tenth Amendment also refers to a collective or States' right ... so I'm not saying that the Second has to be read in some unique way. Actually, I think the people who insist that "State" doesn't mean "State" are the ones that that are trying to read the Second Amendment in some unique way.


In the first sentence of your response hold that the security clause is a 'differentirating clause' when in fact it is an 'explanatory clause'. Ask an someone who really knows how to diagram the 2A for you. And in fact 'explanitory clauses' appear frequently in legislation of the time and even curently. The 2A can be accuretly read even when that clause is struck.

Your second point about the 10A is very confusing in that 'the state' and 'the people' are mentioned, together, in the same sentence. If, as you hold, they are the same then why would the authors put both phrases together in one sentence.

Furthermore, if one substituted 'the state' for 'the people' in the 4th and 5th they are reduced to gibberish.

The authors, the member of Congress and the Legislatures of the several States were consistant. You are trying to argue the case of randomness.

I disagree.

[joab]

You give definitions from the 1820s on words written in the 1770s.

English is an evolving language, the constitution is not an evolving document.

Anybody here remember the Living Bibile
Perhaps the Constitution should have been rewritten from time to time simply to keep up with the popular definitions of the day.

Think back about fifty years, what were the difinitions of gay and queer.

Remeber the old teacher's saying from about 30 years ago
"Ain't ain't a word, cause it ain't in the dictionary"
It is now

[Hawkmoon]

First, there is the matter of grammar, punctuation, and capitalization. Some people have removed commas from the Second Amendment, which seems kind of disrespectful to me. I think this is done with the intent to belittle the first clause, which regards the collective defense of a free State, and then spin the first clause to just be some introductory or subordinate clause there just to lead up to the second clause.

Also, in the first clause, the word "State" is often changed to have a lower case "S", as if the word "State" doesn't mean "State" as in my State of Virginia.

Then the meaning of the second clause is interpreted in a couple of special ways, such as by construing the word "people" to mean "persons", as if the intent is that every individual must be armed no matter what their criminal past or mental state. And then the part about "shall not be infringed" is taken so out of context that it is assumed that all gun laws, state and federal, must be unconstitutional.
You haven't clearly stated your point, but it appears that you subscribe to the notion that the 2nd Amendment does NOT guarantee an individual right.

If that's your point, the most exhaustive grammatical analyses of the 2nd Amendment have shown that the first caliuse is exactly what you say it is not: a prefatory clause that has no operative effect on the meaning of the main clause.

As the the individual right question, an exhaustive analysis compiled by the Senate several years ago confirms that the RKBA is an individual right, and a much more thorough and exhaustive study done by the U.S. Department of Justice this year reached the same conclusion. If you have not read those studies, you should do so ... immediately.

[Werewolf]

[Deleted by Werewolf - Off Topic]

[Hawkmoon]

1. I'm thinking that there is no REQUIREMENT that the general population be armed because we no longer have well regulated State Militias. But I believe there was a time when it was required ... Webster's 1828 Dictionary says that "The militia of a country are the able bodied men organized into companies, regiments and brigades,with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.".
But we do still have a militia. In fact, we have two -- the "organized" militia, and the "unorganized" militia. It's all spelled out in the U.S. Code. There is nothing in your dictionary definition to imply that the militias so defined were creatures of any state. At the time, they were usually more on a town or county-wide level.

[The Real Hawkeye]

Hugh, the Second Amendment refers to a right that belongs to the people, i.e., to you and me. That right is the right to keep and bear arms. What is stated in the Amendment antecedent to the acknowledgment of that right's existence is not a justification for the existence of that right, but rather it is a justification for prohibiting the infringement of that right. This is a crucial distinction, and the downfall of your entire thesis. Rights do not require justifications, and the Second Amendment does not pretend to provide one. Now, you can argue about the first part of the Amendment until you are blue in the face, but regardless of how you come down on its meaning, it pertains to the justification for prohibiting the infringement of the right of the people to keep and bear arms. The right itself is not even at issue, but is merely referred to, as one might refer to the existence of sunlight.

[The Real Hawkeye]

Furthermore, if one substituted 'the state' for 'the people' in the 4th and 5th they are reduced to gibberish.Yes, and wasn't it thoughtful of the Founders to secure in the First Amendment the right of the government to petition the government for a redress of grievances? This is the kind of nonsense that you get when you try to digest the convoluted arguments of leftists and statists.

PS: A personal appreciation for firearms and the personal liberty to keep and use them does not make one immune to the correct designations of leftist and statist. If I am not mistaken, both Stalin and Mussolini favored the continuation of all their own respective personal liberties.

[Harve Curry]

I recall reading that the authors of the Bill of Rights were leary and cautious about even trying to enumerate rights given by God, by simply being born you had these rights, no matter where you lived. They were worried they could not do RIGHTS justice in words, that they would fail and limit rights rather then just list them. Part of the argument then was IF they didn't list them then someday down the road, there would be no recognized rights in goverment to make it illegal to take away, restict, or infringe on rights.

And 200+ years later we can still have this discussion about the same thing. But I am glad they did write the Bill of Rights and add it in to the US Constitution or we would be as screwed up as Australia, Canada, England and so on. And they did a pretty good job of it. With all the technology changes it still holds up. They knew people and that people don't change.

[The Real Hawkeye]

I recall reading that the authors of the Bill of Rights were leary and cautious about even trying to enumerate rights given by God, by simply being born you had these rights, no matter where you lived. They were worried they could not do RIGHTS justice in words, that they would fail and limit rights rather then just list them. Part of the argument then was IF they didn't list them then someday down the road, there would be no recognized rights in goverment to make it illegal to take away, restict, or infringe on rights.

And 200+ years later we can still have this discussion about the same thing. But I am glad they did write the Bill of Rights and add it in to the US Constitution or we would be as screwed up as Australia, Canada, England and so on. And they did a pretty good job of it. With all the technology changes it still holds up. They knew people and that people don't change.Very true. In fact the Federalists were arguing that a bill of rights made no sense at all, considering the form of government they had in mind with the proposed US Constitution, since the Federal Government that the States were creating with said document would be restrained by a Constitution of limited and listed powers, i.e., it would only have those powers delegated to it by the States via the written Constitution, and since no power would be given to the Federal Government to pass any laws at all that would directly effect individual Americans (Those kinds of laws would all be left to the States, and their respective subsidiary levels of government; See e.g., Federalist No. 45, the gist of which was given expression in the Constitution by the Tenth Amendment), the Federal Government would not have the authorization to take any action which could violate any individual citizen's rights. It's powers were meant to look almost exclusively outwards, towards our relationships with other nations. Only State laws were intended to look inwards towards their respective citizenries (Again, see, e.g., Federalist No. 45).

[Carl N. Brown]

As I recall, Kates believes that the Second Amendment is about the individual right to shoot burglars.

I don't think our thread starter has read the Don B. Kates
article I mentioned and he dismissed, so here it is for
everyone else to judge:

SECOND AMENDMENT

However controversial the meaning of the Second Amendment
is today, it was clear enough to the generation of 1789. The
amendment assured to the people "their private arms," said an
article which received James Madison's approval and was
the only analysis available to Congress when it voted.
Subsequent contemporaneous analysis is epitomized by the first
American commentary on the writings of William Blackstone.
Where Blackstone described arms for personal defense as
among the "absolute rights of individuals" at COMMON LAW,
his eighteenth-century American editor commented that this
right had been constitutionalized by the Second Amendment.

Early constitutional commentators, including Joseph Story,
William Rawle, and Thomas M. Cooley, described the
amendment in terms of a republican philosophical tradition
stemming from Aristotle's observation that basic to tyrants is
a "mistrust of the people; hence they deprive them of arms."

Political theorists from Cicero to John Locke and
Jean-Jacques Rousseau also held arms possession to be symbolic
of personal freedom and vital to the virtuous, self-reliant
citizenry (defending itself from encroachment by outlaws,
tyrants, and foreign invaders alike) that they deemed
indispensable to popular government.

These assumptions informed both sides of the debate over
ratification of the Constitution. While Madison, in
The Federalist #46 assured Americans that they need never
fear the federal government because of "the advantage of being
armed, which you possess over the people of almost every other
nation," opponents of ratification such as Patrick Henry
declaimed: "The great principle is that every man be armed.
Everyone who is able may have a gun." Samuel Adams
proposed that "the Constitution never be construed
... to prevent the people of the United States who are
peaceable citizens from keeping their own arms." As much of
this debate used the word "militia," it is necessary to
remember that in the eighteenth century the militia was
coextensive with the adult male citizenry. By colonial law
every household was required to possess arms and every male of
military age was required to muster during military
emergencies, bearing his own arms. The amendment, in
guaranteeing the arms of each citizen, simultaneously
guaranteed arms for the militia.

In contrast to the original interpretation of the amendment
as a personal right to arms is the twentieth-century view that
it protects only the states' right to arm their own military
forces, including their national guard units. This view
stresses the Anti-Federalists' bitter opposition to the
provisions of Article I, section 8, authorizing a standing army
and granting the federal government various powers over state
militias. Both textual and historical difficulties preclude
acceptance of this exclusively STATES' RIGHTS view. For
instance, Madison's proposed organization for the provisions of
the Bill of Rights was not to append them, but to
interpolate each amendment into the Constitution following the
provision to which it pertained. Had he viewed the amendment as
modifying the military-militia clauses of the Constitution
(which he strongly defended against Anti-Federalist criticism),
he would have appended it to those clauses in section 8.
Instead, he planned to place what are now the First and Second
Amendments in Article I, section 9, along with the original
Constitution's guarantees against BILLS OF ATTAINDER and
EX POST FACTO LAWS and against suspension of HABEAS CORPUS.

The states' rights interpretation simply cannot be squared
with the amendment's words: "right of the people." It is
impossible to believe that the First Congress used "right of
the people" in the First Amendment to describe an
individual right (FREEDOM OF ASSEMBLY), but sixteen words
later in the Second Amendment to describe a right vested
exclusively in the states. Moreover, "right of the people" is
used again to refer to personal rights in the Fourth
Amendment and the Ninth Amendment, and the Tenth
Amendment expressly distinguishes "the people" from
"the states."

Don B. Kates, Jr.

Bibliography
------------

Halbrook, Steven 1984 That Every Man Be Armed: The
Evolution of a Constitutional Right. Albuquerque: University
of New Mexico Press.

Kates, Don B., Jr. 1983 Handgun Prohibition and the
Original Meaning of the Second Amendment. Michigan Law
Review 82:204-273.

Malcolm, Joyce 1983 The Right of the People to Keep
and Bear Arms: The Common Law Tradition. Hastings
Constitutional Law Quarterly 10:285-314.

Shalhope, Robert E. 1982 The Ideological Origins of
the Second Amendment. Journal of American History
69:599-614.

From: Encyclopedia of the American Constitution, Macmillan (1988).
{I believe I am within the rules of the "fair use" doctrine here.}


Let us not lose sight: The Bill of Rights was intended to protect rights
from infringement by Congress: these rights pre-existed the Constitution
and Bill of Rights and were not created by the Bill of Rights: they
are defended by the Constitution. Also the enumeration of certain rights
also should not be interpreted as denying other rights that exist under
common law without being enumerated in the Constitution or the
amendments thereto.

The individual rights interpretation of the Second Amendment
is called the Standard Model in academic circles. Even
the Bogus Symposium (Chicago-Kent Law Review, Vol. 76, No.1)
by the signers of the Yassky brief in the case of United States
v. Emerson, who had argued that the Second Amendement was not
an individual right, had to refer to the individual rights
interpretation as the Standard Model. Of course, they preferred
to put "Standard Model" in quotes. The symposium was sponsored
by the Joyce Foundation as part of a campaign for gun control,
Carl T. Bogus was chief counsel for a gun control advocacy
group, and most participants were known more for their gun
control advocacy than their constitutional law expertise,
especially Michael Bellesiles the discredited history hoaxer.


I believe that consideration of the federal constitution
RKBA cannot be divorced from state constitutional RKBA.

The State of Tennessee entered the Union as the 16th State,
just a few years after the Bill of Rights became Law of the
Land. The Tennessee State Constitution has its own right to
arms clause:

"Section 26. That the citizens of this state have a right
to keep and to bear arms for their common defense; but the
Legislature shall have power, by law, to regulate the
wearing of arms with a view to prevent crime."

{Text from final version of 1870.}
The Tennessee courts and attorney generals have held that the
right to keep and bear arms is an individual right of the
citizen, the state cannot infringe or prohibit the right of
citizens to own and keep guns in their homes for lawful
self-defense and that the state's area of authority is
regulating the "wearing" or public carry of guns solely
with a view to prevent crime, and not to bar or prohibit
private ownership or lawful use or lawful "wearing" for
self-defense. The written opinions from the state attorney
general and court decisions have also ruled that the
non-self-defense use and possession of arms for commonly
accepted purposes including hunting and livestock protection
are constitutional and are not barred by the "common defense"
or "prevent crime" language under Section 26. Many other
states have similar state constitutional provisions of the
right to arms and similar bodies of court precedent and state
attorney general rulings, all of which are ignored by advocates
of the Non-Standard Model interpretation of the Second Amendment.



Commas and the Second Amendment



Let's take an Amendment that no one gives a {water impoundment}
about: AMENDMENT III

No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.

Now, let's read it without without commas:

No Soldier shall in time of peace be quartered in any house
without the consent of the Owner nor in time of war but in a
manner to be prescribed by law.

The words "nor" and "but" represent logical divisions.
Now let's read it by my punctuation rules*, based on text above:

No Soldier shall, in time of peace, be quartered in any house
without the consent of the Owner; nor, in time of war, but in
a manner to be prescribed by law.

My interpretations are:

In time of peace, no Soldier shall be quartered in any house
without the consent of the Owner.
In time of war, Soldiers may be quartered in houses in a
manner to be prescribed by law.

The "but" clause modifies the "nor" clause. The "but" does not
modify the main "No Soldier shall be..." clause. But one could
take the argument that the commas are confusing and interpet:

In time of peace Soldiers may be quartered in houses without
the consent of the Owner in a manner to be prescribed by law.

That interpetation is bogus but could be argued as comma
confusion when the commas are actually irrelevant.

Back to the object of controversy: AMENDMENT II

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.

Strip the commas:

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.

Punctuating this the way I would write by the rules I learned
in highschool:

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.

{Gee, this matches one of the early drafts of the right to arms.}
Under the Standard Model interpretation of the Second Amendment,
the first clause is a reason why for the second clause, but it is not
exclusionary. The Bogus Symposium, VPC, HCI and IANSA interpretation
of the Second Amendment would be:

Solely because a well regulated Militia is necessary to the security
of a free State--and for that reason only--the right of the State to
keep and bear arms shall not be infringed by the United States.

This post-1930 Non-Standard Model of the Second Amendment ignores 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.

Up until the Tenth Amendment, the Bill of Rights is about Congress
shall make no law infringing the rights of the People. The Tenth
Amendment speaks about the Powers under the Constitution. The
Constitution delegates certain Powers to the United States and
prohibits certain powers to the States (like declaring war on a
foreign government). The point is, the federal government, the
state government, and the citizenry: the United States, the States
and the people are three seperate entities under the Constitution
as clarified in the Tenth Amendment, and the Second Amendment
says "the right of the PEOPLE to keep and bear arms shall not
be infringed." It does not say "the power of the United States",
it does not say "the power of the States" or "the power of the
State", it says "the right of the people" Period.

[hugh damright]

Sorry but this is going to be much longer than I prefer to post ...

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

...Someone was asking what the difference was ... whether the Second Amendment means that individuals have the RKBA, or that collectives of individuals have the RKBA ...

In one view, the intent is the individual RKBA, and the individual RKBA shall not be infringed ... and so most if not all gun laws are unconstitutional, and the federal government is supposed to keep any State from passing gun laws. It's a view of libertarianism, where the people must have the highest possible degree of individual gun rights. Politically speaking, I think it is an extremist 14th Amendment view.

In the other view, the intent of the Second Amendment is the collective RKBA, and the federal government's jurisdiction over the RKBA is as it relates to militia. In this view, gun control powers are reserved to the States. It is a view of free government, where each State is free to pass gun laws they deem to be in their best interest. Of course, a State cannot ban all guns, disarm the general population, disarm people because of their race or religion, and so on ... there are federal and other limits to the States' gun control powers. And, of course, when I say "State", I am not talking about some despotic State Legislature passing despotic gun laws against the will of the people, I am talking about the will of the people as expressed through their State Legislature. Politically speaking, this view is a Tenth Amendment view.

It's not as if one view is for the individual RKBA and the other view is opposed to the individual RKBA. Well ... I guess it depends on your perspective ... my impression of libertarians is that if every single Virginian wanted to ban CCW, and we did ban CCW, then a libertarian would call that tyranny ... but it is not tyranny, it is free government.

So ... the difference ...whether the Second Amendment means that individuals have the RKBA, or that collectives of individuals have the RKBA ... is that one view is based on principles of free government and constitutional law, and the other is based on libertarianism. I think that principles of free government and constitutional law trump libertarianism ... otherwise, we would not have free government and the rule of law, and would instead be ruled by the will of libertarians.


* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *


Then please tell us what it means when something is infringed.

Generally speaking, it is up to the people of each State to answer that for themselves. Following is a quote from Jefferson on the matter, although it regards the First rather than the Second Amendment:

"The States... retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed." --Thomas Jefferson: Draft of Kentucky Resolutions, 1798."

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Why does the Tenth mention the States and the people separately?

I think there are two explanations. First off, the Amendment proposed by Madison did not have the part about "the people", it just said that powers were reserved to the States respectively (individually). Congress added "or to the people". My understanding is that their intent was to clarify that all powers were not reserved to the State Governments, but rather reserved to each State - either the people of a State, or the State Legislature if the people intend them to have such a power. Of all the requests for this States' Rights Amendment, I believe that New York's said it best:

"that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same"

I think there is a second explanation of why "or to the people" was added to the Tenth Amendment, and that was to make it obscure because the federalists could not stomach it. The Federalists wanted the US to be one big State, one people, and so they wanted powers not delegated to the US to be reserved to the people of the US, and to take the States out of the picture. Richard Henry Lee, in a letter to Patrick Henry, expressed such a belief:

"By comparing the Senate amendments with [those] from below by carefully attending to the m[atter] the former will appear will calculated to enfeeble [and] produce ambiguity--for instance--Rights res[erved] to the States or the *People*--The people here is evidently designed fo[r the] People of the *United States*, not of the Individual States [page torn] the former is the Constitutional idea of the people--We *the people* &c. It was affirmed the Rights reserved by the States bills of rights did not belong to the States--I observed that then they belonged to the people of the States, but that this mode of expressing was evidently *calculated* to give the Residuum to the people of the U. States, which was the Constitutional language, and to deny it to the people of the Indiv. State --At least that it left room for cavil & false construction--They would not insert after people thereof--altho it was moved."


One thing that surprised me, as I learned about our founding, was that the idea that the States requested a Bill of Rights is a halftruth. The States requested two things, (1) a Bill of Rights and (2) amendments. These were two different issues. In reading the State Ratification documents, it appears to me that the States' primary concern was not a Bill of Rights but an amendment declaring that the US is limited to the enumerated delegated powers and that the States otherwise retain their sovereignty/power/jurisdiction/rights. What it took to make the US Constitution palatable to the States is the Tenth Amendment, and I feel an obligation and duty to read the Tenth Amendment (and the Second) such that it satisfies the requests for it.

What many people do is turn the Tenth Amendment against itself by reading it such that powers within Virginia are reserved, not to Virginians or to our Virginia Legislature ... but they force a construction where powers in Virginia which were not delegated to the US government are reserved to the US people.


* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *


But we do still have a militia. In fact, we have two -- the "organized" militia, and the "unorganized" militia. It's all spelled out in the U.S. Code. There is nothing in your dictionary definition to imply that the militias so defined were creatures of any state. At the time, they were usually more on a town or county-wide level.

The original intent was not that we all be US militia. How would a US Militia allow Virginia to check the US? The intended check on the US is the people as fifty sovereignties: fifty State Militias.

I thought the definition I provided implied State control of the militia, but for further support, following is something from Federalist #29 which addresses the concern that the federal government might take over the State Militias:

"What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary, while the particular States are to have the sole and exclusive apportionment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia."

[geekWithA.45]

Hugh,

In some ways you're right, but in other ways, you're massively wrong.

One of your central errors is to hold in highest regard the collective will of a majority of a state's citizens, while holding in secondary regard individual, unalienable rights inviolately protected.

It is to defend those personal unalienables natural rights that we founded a republic, reserving some things to ourselves, rather than a democracy. If the will of the majority is the end all, be all, we would have created a democracy, and lived with all its perversions.

Without protecting unpopular personal unalienables from the 51%, any pure democracy quickly becomes a degenerate majoritarian excercise.

(Classic illustrative example of a degenerate democracy: an island society of 2 males and 1 female form a pure democracy, in full accordance with all recogized rules. The 2 males then, in full accordance with their democracy vote that the female will be their sex slave.)

You also make a classic mistake in that asserting because some regulation (meaning: to make regular, not, to prohibit with legislation bearing the word regulation in the title) may be rightfully deemed constitutional that therefore the right is vested in the state/majority, rather than the individual, with some few justifiable exceptions.


The bottom line is that the right of arms is an individual right.

Lay aside your epicyclic mental meanderings on that, and worship of majoritarianism of any particular district.

SCOTUS has indeed commented on the second amendment right some 35 times, the vast majority of times clearly coming down on the side of the individual. On the other occassions, it has commented ambiguously, as in the case of Miller, where readings could support either the individual or state right view.

At NO TIME has the Supreme Court EVER locked out the individual as the one posessing the right of arms.




The overwhelming weight of Supreme Court precedent supports the Standard Model. A few ambiguous cases could be read as consistent with the Standard Model or with the states' rights theory. The collective rights and nihilist views can find no support in Supreme Court jurisprudence.

http://www.davekopel.com/2A/Mags/The-Second-Amendment-Before-the-Supreme-Court.htm




While the meaning of the Supreme Court's leading Second Amendment case, the 1939 United States v. Miller [FN2] decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments.

...


But Supreme Court opinions dealing with the Second Amendment come from almost every period in the Court's history, and almost all of them assume or are consistent with the proposition that the Second Amendment in an individual right.

http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm


The "collective theory" of 2A is NOT an animal of the Supreme Court of the United States.

The "collective theory" is alive and well, however, in the lower Federal Courts, who are split, most famously and recently in the 9th District. This has entirely flowed from dubious readings of Miller.

One approach to untangling the conflict has been to see if the lower federal courts have actually been following Miller. In Can the Simple Cite be Trusted?, Brannon Denning makes a persuasive argument that some lower courts have cited Miller for propositions which cannot reasonably be said to flow from Miller. [FN15] But part of the problem with deciding whether the courts or the scholars are being faithful to Miller is that Miller is such an opaque opinion.


What SCOTUS leaves murky isn't so much as WHO posesses the right, but what the SCOPE of the right actually is.

At the end of the day, rights are granted by neither governments, nor by any particular mass of humans. They are taken by the individuals who justly assert them, beligerently if necessary.

An enlightened polity understands, supports and upholds this.

An unenlighted polity does not.

This is not libertarianism, it is entirely consistent with the lockean basis of the Republic, which is formed by the enumerated personal soveriegn powers delegated to governance.


Furthermore, I'm entirely unconvinced that you actually have read, or understood a lot of the materials offered to you earlier in the thread, which you dismiss without refutation.

Because your position is inconsistent with those materials, I fear the onus is on you to refute them if you wish us to deem your position credible.


YES, peaceable individuals posses a right of arms, without militia conditions.
YES, states and lesser polities have the power to organize and form militias, drawing from the pool of armed citizens.
YES, the fed gov has the power to call that militia forth.

NONE of these truths are mutually exclusive.

[benEzra]

I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.
How about the near-consensus of peer-reviewed legal scholarship?

Under Fire: The New Consensus on the Second Amendment [45 Emory L.J. 1139-1259 (1996)]. (http://www.guncite.com/journals/bk-ufire.html)

Until the early 1980s the Second Amendment had received little attention or interest from legal scholars.[1] In 1981 Northwestern University law professor Daniel D. Polsby ridiculed the individual rights view of the Amendment as "a lot of horsedung."[2] But as of 1994, having acquainted himself with the rather substantial literature of the intervening years, Polsby commented:

[A]lmost all the qualified historians and constitutional-law scholars who have studied the subject [concur]. The overwhelming weight of authority affirms that the Second Amendment establishes an individual right to bear arms, which is not dependent upon joining something like the National Guard. It goes without saying that like all constitutional rights, the right to keep and bear arms is subject to reasonable regulation consistent with its purposes.[3]

Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment.[4](p.1142)

According to the broad individual right view, the right of the people to keep and bear arms is to be treated the same as the other rights of the people specified in the Constitution--no more and no less. Like the other rights mentioned in the Bill of Rights, it is a right to be asserted by individuals against infringement by government. Like other rights in the Bill of Rights, it is not absolute, but neither is it a hollow shell which legislatures can ignore with impunity. Nor does it merely refer to the right of a state to have a militia, as many, perhaps most, law professors assumed before there was serious scholarship on the Second Amendment.

If anything, the individual-right consensus is stronger now than it was when that was written, even more so when you exclude articles written by employees of the anti-gun lobby.

Perhaps if I quoted Madison's comment in the Virginia Ratification Convention:

Who are parties to [the Constitution]? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties.
Had Madison said "the people as consisting of thirteen sovereignties", or "comprising thirteen sovereignties", you might have a point. However, the "people composing thirteen sovereignties" (e.g., the 13 states) is no different than referring to the "275 million people composing the United States of America", in which the word "people" clearly refers to individuals, not the collective(s) being composed.

Madison is distinguishing his view of 13 sovereign States from the view of the USA as a single monolith, but both statements presuppose that the collective(s) are composed of individual citizens.

[hugh damright]

1)I'd like to try again to get back to the topic of whether or not the original documents in the national archives are the authoritative source for the punctuation/capitalization.

2)I read enough stuff by Kates, Volokh, Halbrook, Cramer, etc to know where they are coming from. However, I am somewhat impressed with Akhil Reed Amar. I do not agree with him that the Bill of Rights originally meant one thing and now means another, because I do not believe in a "living" Bill of Rights that means something different than what it originally meant. I think it means what it originally meant, or it doesn't mean anything. Anyway, here is a little blurb from a book review of Amar's book on the Bill of Rights, which I find supports and explains the concept of a "Bill of Political Rights":

"His statement that, "Individual and minority rights did constitute a motif of the Bill of Rights -- but not the sole, or even the dominant, motif" (xii), summarizes the thesis of the first part of the work. Professor Amar demonstrates that the Bill of Rights, like the original Constitution, is instead primarily a set of structural ideas, at least as concerned with issues like federalism, preventing abuse of their offices by government officials (which he dubs "self-dealing"), and protecting the political rights of popular majorities as with protecting the civil rights of oppressed minorities. He points out that one possible source of this popular misconception about the meaning of the original Bill is the fact that our First Amendment appears to be primarily concerned with individual rights [...] When one considers that the Ninth and Tenth Amendments are generally considered to be federalist in nature, then a new conception of the Bill of Rights as originally proposed emerges, one in which the eight central articles are framed on either side by four articles that are clearly structural in nature. As Professor Amar goes on to demonstrate in a careful clause-by-clause analysis, those eight central amendments were primarily structural, as well.

A few examples will help to illustrate this structural view of the Bill of Rights. In examining the assembly and petition clauses of the First Amendment, for instance, Amar utilizes an intratextual approach in order to understand the clauses in new and insightful ways. He points to the parallel between the right "of the people" to assemble and petition and the "We the People" that begins the Preamble to the Constitution as indicative of a notion that the assembly and petition rights are similar to Rousseau's conception of the right of the people to assemble as sovereign to change their government, just as the Founders themselves had done at Philadelphia in 1787. That is, First Amendment rights of assembly and petition are political rights of a sovereign majority, rather than civil rights of oppressed minorities. Amar supports his intratextual analyses with intertextual analysis, drawing supporting evidence from comments at state ratifying conventions and from comparisons with the state constitutions from which much of the language of the federal Constitution and Bill of Rights was drawn. He uses these two techniques in tandem quite skillfully to reach many of his most startling conclusions.

With these techniques, Professor Amar derives a fascinating states' rights reading of the First Amendment's religion clauses. He argues that the mandate that "Congress shall make no law respecting an establishment of religion" does not create an individual right to be free from established religion; it simply leaves that determination to the states: the clause only "prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments". In support of this interpretation, Amar points to both the legislative history of the clause and early judicial interpretation of it, as well as the fact that the six states with established churches at the time of the Amendment's ratification were not forced to disestablish them.

An important theme running throughout the Creation section of The Bill of Rights is Professor Amar's emphasis on the Bill of Rights as a set of protections of the political rights of majorities against self-dealing government agents. Professor Amar points to the Second Amendment as preserving a structural safeguard whereby the states, with their own militias, could protect themselves against an overreaching federal government."

[Art Eatman]

I'm sorta simple-minded, so I have difficulty with angels and pinheads and dances thereupon.

So, it looks to me like I oughta start with the purpose of the BOR. That's pretty obvious from the Preamble; the BOR is to restrain the central government--the "State"--from abuse of power.

Seems to me it's hard to restrain a State if only the employees of the State have guns. Ergo, the citizenry is supposed to be armed.

Next thing is that one fella did most of the writing. I really doubt he wandered through the rose bushes and tulips with several dictionaries, picking and choosing among word meanings. Seems to me that if "the people" is singular one place, it's singular everywhere. That's pretty much what SCOTUS said in 1992 with Urriquez-Verdugo.

We already know that "militia" is just us folks, the male citizenry from, what, 16? on up to around 45 years. I'm too old to now be part of it. (What the heck. I already did my marching, 50 years ago.) Since we're no longer male chauvinist pigs, women are now part of the militia, and high time, I say!

In the Anti-Federalist papers, the proponents of the Second Amendment stated quite boldly that the right to bear arms did not apply to "the insane and those of ill repute". I've yet to hear anybody disagree with the idea that certain crazy people ought to have firearms. I pretty much am forced to assume that "ill repute" at the very least means what we today call "felons". At any rate, even the proponents agreed that there were certain limits to RKBA. The limits, however are well-defined insofar as non-nit-picking everyday english is concerned. (I have faith that there will always be those who envision the picking of nits as a career choice.)

So I have no difficulty in agreeing with the NRA/GOA/JFPO/etc. about the Second Amendment. The view is in accord with the Preamble...

:), Art

[mnrivrat]

1)I'd like to try again to get back to the topic of whether or not the original documents in the national archives are the authoritative source for the punctuation/capitalization.

The answer is NO ! And in case you haven't been paying attention , the other half of the answer is that it doesn't make any difference.

The intention of the second amendment has been researched to death and the conclusion of an idividual right has been established . One can either except that or keep asking the meaning of a comma , or a capital S vs a lower case s on a subject that has already been brought to a conclusion . Trying to play games with punctuation does not change the conclusion, or the facts , or the intent.

So that's my opinion - yours is apparently different , so we disagree . That's life !

[hugh damright]

The National Archives website says that "The following text is a transcription of the first ten amendments to the Constitution in their original form", and the Second Amendment reads:

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.

and there's a note at the bottom:

Note: The capitalization and punctuation in this version is from the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda of the National Archives Building, Washington, D.C.

That sounds conclusive to me.

http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html

[mnrivrat]

You asked wether they were the "authoritative source" . They are an archive source , but what makes them the "authoritative" source ?

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.

You make something over the capitol S in state but didn't mention the capital A in arms on this translation . Why do you suppose there is a capital A ? Does Arms realy mean firearms ? or is it the appendages on the sides of out bodies ?

Realy Hugh - all kidding and gesting aside , I don't see your interpretation of the 2nd amendment above as being valid. At the worst, perhaps Madison or whoever may have made an error in punctuaton . When the intent is reviewed, studied, and supported by other documents, then a punctuation error is about all you can argue about - you can't use it to change the intent, and be correct.

I'm far from an expert on punctuation and make many mistakes - forgive the drafters of the second amendment if their punctuation was less than perfect, but don't try to make it into something it's not.

[Feanaro]

That sounds conclusive to me.

No other surviving copy of the BoR has a comma after the word militia, nor does the Statutes at Large.

[Wiley]

Hugh,

Here is a site that has the 2nd diagramed:

http://www.geocities.com/gene_moutoux/diagramamend2.htm

And the relevent quote from that site: "The phrase beginning with "a well-regulated militia" and ending with "a free State" is an absolute phrase, a.k.a. nominative absolute. A nominative absolute consists of a substantive (a noun or noun substitute) and a participle and has no grammatical connection with the rest of the sentence." (Wiley: Italics mine)

A search on 'Second Amendment sentence diagram' (or variant) will yeld at least one other site.

As I said originaly, the whole 'militia' phrase is a BLUE herring. Or more accurately a blissninny herring. You can go to the authors notes and drafts all you please. The militia phrase is explanitory and does not alter the right of the individual to keep and bear arms with no infringment by any level of government.

[NorthernExtreme]

OUCH :eek: That had to hurt.


Regards,

[The Real Hawkeye]

As I said originaly, the whole 'militia' phrase is a BLUE herring. Or more accurately a blissninny herring. You can go to the authors notes and drafts all you please. The militia phrase is explanitory and does not alter the right of the individual to keep and bear arms with no infringment by any level of government.Absolutely correct. In fact, as I said earlier (which no one seemed to have read), the right to keep and bear arms is not even the object of the law established by the Second Amendment, i.e., the law established in the Amendment, according to its clear language, does not act upon it in any way. This is a crucial point. The law that is established is that this right, which the language assumes preexists the law, shall not be infringed. Apart from that, nothing is claimed to be altered by the language of the Second Amendment, least of all the right to keep and bear arms which, according to the language, remains altered neither way. The right itself is merely referred to as the preexisting thing which shall not have something done to it.

It would be like a law which legislated that sunlight shall not be prevented from reaching your neighbor's vegetable garden. Neither sunlight nor vegetable gardens are established by the language of said law (and are therefore not the law's objects), only that one shall not be blocked from the other. Both sunlight and vegetable gardens are assumed by the language to already exist, i.e., to preexist the law being established, and are unaltered in any way by the language of the law. The law regards sunlight and vegetable gardens, but they are not the objects of the law, i.e., they are not what the law acts upon, which is blockages of one from the other. Likewise, the Second Amendment regards the right to keep and bear arms and the people who possess it, but it is not about the right to keep and bear arms or the people who possess it, both of which are assumed preexisting realities, according to the language. What it is about is prohibiting the infringement of a right belonging to the people that is assumed by the language (much like sunlight and vegetable gardens) to already exist.

[Tomcat1066]

I don't claim to be a constitutional scholar or any other such animal, but I figured I'd throw my two cents into the ring (why not? Everyone else has :D ).

Is it possible that the capitalized S in State could refer to the new United States? And that the militia, even today under US Code, is necessary to ensure our defense in the event of invasion? As such, it would be essential, even now, that the citizenry be armed. Invasion was a key threat to the founding fathers. Few nations on earth have a history as invasion free as ours, so I don't see why they wouldn't worry about it to some small degree.

Further, I believe that some of the founding fathers felt that the nation could need protecting from the government ITSELF. Didn't Jefferson say something like "the Tree of Liberty must be watered from time to time with the blood of Patriot and tyrannts"? This tells me, and hopefully a few others, that the founding fathers realized that it could be necessary for the people (and I don't mean "states") may have to defend their freedoms by force.

Just a few random thoughts. Please continue about punctuation if you prefer :D

Tom

[Hawkmoon]

The National Archives website says that "The following text is a transcription of the first ten amendments to the Constitution in their original form", and the Second Amendment reads:

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.

and there's a note at the bottom:

Note: The capitalization and punctuation in this version is from the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda of the National Archives Building, Washington, D.C.

That sounds conclusive to me.
The classic test of the validity of a phrase enclosed by commas is the remove the phrase and see if the surviving sentence makes any sense. Leave the comma after "Militia" and then remove the phrase following, and you get a sentence that reads

"A well regulated Militia the right of the people to keep and bear Arms, shall not be infringed."

That clearly does not make any grammatical sense whatsoever.

However, remove the comma after "Militia" and you now have a coherent, prefatory clause which, when removed, leaves the main body of the sentence intact and unambiguous:

"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."

[The Real Hawkeye]

An important theme running throughout the Creation section of The Bill of Rights is Professor Amar's emphasis on the Bill of Rights as a set of protections of the political rights of majorities against self-dealing government agents. Professor Amar points to the Second Amendment as preserving a structural safeguard whereby the states, with their own militias, could protect themselves against an overreaching federal government."[/i]Amar is correct, Hugh, but the problem is the conclusion you draw from his point. The purpose of the Second Amendment, at least in part, was indeed to ensure that State sovereignty would not be undermined by the newly established Federal Government, but the Second Amendment doesn't do this by establishing a right either belonging to individuals or to States. It, in fact, establishes no rights at all. What it does is prohibit the creation of any law which would have the net effect of infringing on the preexisting right of the people to keep and bear arms. You see, militias (i.e., civilians who muster with their own weapons in response to emergencies) cannot exist at all if their members (you and I) are disarmed (in violation of their preexisting right to keep and bear arms) by government at any level. If militias cannot exist at all, then, for greater reason, well regulated ones cannot exist under those circumstances either and, according to the the Second Amendment, the capacity of the people of each State to form well regulated (i.e., well organized and disciplined) militias is a prerequisite for a free State's security.

It's simple logic. I'll take you through it. The Second Amendment's purpose, at least in part, is to ensure the security of a free State, yes? "Free," being defined, at least in part, as not being extraconstitutionally under the dominance and control of the Federal Government. How does it attempt to do that? It seeks to ensure that well regulated militias are at the very least not prevented by law. Why? Because their potential to form in times of emergency is, according to the Amendment, "necessary for the security of a free State." If something which is necessary for something else is eliminated by law, then the thing for which it is necessary (in this case, the security of a free State) will cease to exist, yes? How then does the Second Amendment seek to ensure this necessary thing? It does so by ensuring that the prerequisite of that thing remains without legal infringement. What is the prerequisite of a well regulated militia? It is the members of same. The components of any militia, well regulated or otherwise, are, by definition, civilians (that's you and me) bearing their own personal arms. How does the Second Amendment ensure that these component parts of a militia continue to exist? By preventing laws which tend to infringe on their right to keep and bear arms. Remember, militia members are civilians who bring their own arms to muster.

Notice also that the Amendment does not state that the people will be allowed arms. That would be the creation of a privilege. No, it states that a right of the people (something which is not established by law) shall not be infringed by law. It's the "shall not be infringed" part that's the law established in the Second Amendment. It's purpose is to ensure that the component parts of a well regulated militia will remain in existence. The component parts of any militia are necessary to ensure at least the possibility of a well regulated one, and this is important because, without the formation of one of those during times of emergency, the Amendment asserts, the security of a free State cannot be maintained.

So, yes, Hugh, the purpose (at least in part) of the Second Amendment was, as Amar asserted, to ensure that State sovereignty would never be undermined by the newly established Federal Government (which would amount to the eradication of free States, being replaced by one central despotism in violation of Constitutional federalism), but it is the method by which that was to be accomplished that's the issue. It was certainly not by establishing a right to keep and bear arms, which right the language of the Second Amendment assumes already exists with the people, but rather by ensuring the potential for the existence of a well regulated militia, which according to the Amendment is accomplished by preventing the infringement of the preexisting right of the people to both keep and bear arm.

Who are "the people?" Well, logic dictates that "the people" refers, at least in part, to those who would make up any well regulated militia. Those members need their own privately owned arms to muster, or else by definition they cannot be part of any militia, well regulated or otherwise. Thus, "the people" are you and me with our own arms, not some amorphous conglomerate, but you and me individually, mustering with our own weapons in defense of liberty.

[Graystar]

"commonwealth"..."common" and "wealth"...sounds socialist to me. :uhoh:

I'm sorry...what is it we're talking about?

[Harve Curry]

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.

If you refer to half a dozen references you'll get at least three versions of the 2nd Amendment's captilization and punctuation. Anyway you write it does not change the meaning. It's really simple, don't read into it more than what is plainly there.

All research determines that:
People means individuals.
Militia is the people.
Arms means weapons.(then define weapons, you'll get more then firearms.)
State is the defined geographical area you live in,with a respected goverment of the people.
Infringed means exactly what it says.

These rights are time immortal. You can find the same discussions go back to ancient Greece.

[coma]

Ill just say that I believe the 2nd is all about Individual Rights! Just as the Bill of Rights was all about period.

In 1982 here is what both political parties had to say:

In 1982, a bipartisan subcommittee (consisting of 3 Republicans and 2 Democrats) of the United States Senate investigated the Second Amendment and reported upon their findings. The report was written by gun lobby advocates Stephen Halbrook and David Hardy. This report included the following opinion:

"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."[4]

Here is what James Madison had to say back then about what a “militia" is and who controls said "militia"

James Madison is considered the "Father of the Constitution," and was the primary author of the Bill of Rights.

"To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for the common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. 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 of 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 ." --James Madison, Federalist No. 46, 1788

And here is what George Mason had to say:


George Mason is considered the "Father of the Bill of Rights." Mason wrote the Virginia Declaration of Rights, which detailed specific rights of citizens. He was later a leader of those who pressed for the addition of explicitly stated individual rights as part of the U.S. Constitution.

"[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually. . . . I ask, who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor. . . ." --George Mason, Virginia's U.S. Constitution ratification convention, 1788

"That the People have a right to keep and bear Arms; 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." -- Within Mason's declaration of "the essential and unalienable Rights of the People," --George Mason, later adopted by the Virginia ratification convention, 1788


These and more can be found here:http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

Think and say what ever you like but the founding fathers really intended for "the people" to be in control of the Government at all times for ever.....and "the people" really truly is you and me! Yes we are responsible for what the government does and how it acts. Like it or not it is up to us, "the people" to guard what is right and just. The real question is are there enough "people" left that have the required back bone to stand up for what is right. Or has the Liberal Left won and turned the majority of the people into SHEEP! To be controlled from womb to grave, just to further some leader’s power?

The 2nd was designed to prevent this government form of control from happening, and that is exactly why liberals, gun haters, and socialists work so hard to dismantle it, to change it, to "up date" it. It has to go away before they can disarm the population and then “feel” safe in there position of power. THEY are really cowards that crave power, and they will control every part of your life if we let them.

[Graystar]

The term “people” has always been used to refer to both the state and the citizens as individuals. In criminal court it’s always “The People of [insert state] vs. John Doe.” I don’t think that means that just anyone can don a black robe and pass judgment. That reference is collective.

In general, when the Constitution refers to individuals it doesn’t use the term People.

The first amendment speaks of the right of the people to peaceably assemble. But we all know this is not an individual right. You can’t just get together 10,000 people and assemble peaceably in the middle of main street...the police WILL move you. If you want to have an assembly you generally need to get a permit from the local government.

In the Third Amendment soldiers cannot be quartered without the consent of the Owner.

The Fourth Amendment states “The right of the people to be secure in their persons...” “Persons” is the individual reference.

The Fifth Amendment start with “No person shall be...”

In the Sixth Amendment it is “…the accused...”

[mnrivrat]

I don’t think that means that just anyone can don a black robe and pass judgment. That reference is collective.


Am I mistaken when I think the judge is not the one that passes judgment ? What happened to the Jury of peers (individuals) that represent the "people" ?

In general, when the Constitution refers to individuals it doesn’t use the term People.

I disagree

[The Real Hawkeye]

The term “people” has always been used to refer to both the state and the citizens as individuals. In criminal court it’s always “The People of [insert state] vs. John Doe.” I don’t think that means that just anyone can don a black robe and pass judgment. That reference is collective.

In general, when the Constitution refers to individuals it doesn’t use the term People.

The first amendment speaks of the right of the people to peaceably assemble. But we all know this is not an individual right. You can’t just get together 10,000 people and assemble peaceably in the middle of main street...the police WILL move you. If you want to have an assembly you generally need to get a permit from the local government.

In the Third Amendment soldiers cannot be quartered without the consent of the Owner.

The Fourth Amendment states “The right of the people to be secure in their persons...” “Persons” is the individual reference.

The Fifth Amendment start with “No person shall be...”

In the Sixth Amendment it is “…the accused...”Nonsense! "People" is a plural reference to individual human beings. You cannot get around the fact that virtually no one at the time of the Amendment's ratification, including its framers, understood the word "people" to mean an amorphous conglomerate, to the exclusion of individuals acting alone. Furthermore, what is meant by "the people" is clear from the language of the Amendment itself, since amorphous conglomerates cannot bear arms, or anything else. Bearing is a distinctly individual act of a human being. For example, we do not speak of armies bearing arms. Only a soldier can do that.

[Wiley]

And the first three words of the preamble to the constitution refers to whom???

[BuddyOne]

Why are we attracting so many trolls lately????

Buddy

Moderator Note: Please see http://www.thehighroad.org/showthread.php?p=2103530#post2103530 for an answer to this question. -- pax

[Stand_Watie]

Tomcat: I had always read "State" in that context to mean "large autonomous or semi-autonomous political entity" and that it referred to both the United States, and the separate states within it.

[Graystar]

Am I mistaken when I think the judge is not the one that passes judgment ?Yes you are. The jury only determines if the facts of the case support a verdict of guilt beyond a reasonable doubt. If so, then the judge judges that guilt with an appropriate sentence.

[Graystar]

And the first three words of the preamble to the constitution refers to whom???Just like it says...the people of the United States.

[The Real Hawkeye]

Yes you are. The jury only determines if the facts of the case support a verdict of guilt beyond a reasonable doubt. If so, then the judge judges that guilt with an appropriate sentence.The judge is like the referee in a sporting event, i.e., he simply makes sure that everybody follows the rules. The trier of fact is the jury, i.e., they determine guilt or non-guilt. The Founders also considered them the ultimate triers of the law as well, since they possess the power to nullify the effect of the law in any given case. They are the final check on the government as it comes into contact with the citizen. They possess the plenary power to defend the innocent from an abusive government. Why do they possess such power? Because the jury represents the raw unadulterated sovereignty of the people. Remember that all sovereignty originates with the plenary sovereignty possessed by the people. It is only loaned to government for specific purposes, but is retained in its fullness, and can be expressed in its fullness, in the context of a jury trial, by the people.

[mnrivrat]

Yes you are. The jury only determines if the facts of the case support a verdict of guilt beyond a reasonable doubt. If so, then the judge judges that guilt with an appropriate sentence.

Well I guess Hawkeye sort of beat me to it here with a response - so I have to say what Hawkeye said + 1 .

Guilt or innocence is judged by the jury and not the judge .

[Graystar]

The judge is like the referee in a sporting event, i.e., he simply makes sure that everybody follows the rules.A judge is far, far more than that. In the case of a guilty verdict, the judge determines how long a person will spend in jail. No one else does. And there are many judicial court actions that don't involve a jury. In these cases the judge makes all determinations. So I think your view of judges is a little simplistic.

As for jury nullification, you forget that a judge can override the determination of a jury if he feels that such determination is not consistent with the facts. The jury can NOT simply do whatever it wants to do.

[The Real Hawkeye]

A judge is far, far more than that. In the case of a guilty verdict, the judge determines how long a person will spend in jail. No one else does. And there are many judicial court actions that don't involve a jury. In these cases the judge makes all determinations. So I think your view of judges is a little simplistic.

As for jury nullification, you forget that a judge can override the determination of a jury if he feels that such determination is not consistent with the facts. The jury can NOT simply do whatever it wants to do.While the judge can protect an accused from a bad jury, he cannot punish an accused whom the jury has acquitted, regardless of his finding that they did not follow the law or his instructions. When it comes to defending the citizen against the government, the jury's authority is superior to the judges. That's because the judge is an official of the State, while the jury represents the entirety of the people. The judge derives his authority from them, not the other way around.

[Graystar]

While the judge can protect an accused from a bad jury, he cannot punish an accused whom the jury has acquitted,...True. But a judge can (and has) order a mistrial if he is convinced that the jury did not act in accordance with their responsibilities. And that includes a finding of not guilty that is based on anything other than a reasonable doubt.

[cz75bdneos22]

thank y'all...i have so many things i would like to contribute. i'm busy though...this is so cool.:cool: keep up the discourse, i'm learning...;) i'm not worthy!!

[The Real Hawkeye]

True. But a judge can (and has) order a mistrial if he is convinced that the jury did not act in accordance with their responsibilities. And that includes a finding of not guilty that is based on anything other than a reasonable doubt.The only thing a jury is required to inform the judge about their deliberation process is their conclusion regarding the ultimate question of guilt or non-guilt. They are not required to answer questions about the reasonableness of their doubt, or anything else. So long as no laws were violated, the deliberation room is sanctum sanctorum, as far as the judge is concerned.

[mnrivrat]

The jury can NOT simply do whatever it wants to do.

While this conversation is a bit off topic for the thread I will make one final statement .

Trial by jury is the right of all accused of a crime. Non-jury trials do exist, but not for criminal cases unless the jury trial is waved.

The Jury determines the guilt or innocence in a jury trial and only if they grossly error in respect to the law can the judge legaly nullify their decision. It rarely happens .

The judge may set the sentance (usualy within guidlines- he can't do whatever he wants either) and varify that legal procedure is being followed , but in a jury trial he has no power to determine guilt or innocence .

Therfore the prior statment : "The jury only determines if the facts of the case support a verdict of guilt beyond a reasonable doubt. If so, then the judge judges that guilt with an appropriate sentence." , is not correct.

The judge does not "judge that guilt" , in a jury trial . His main job is to oversee legal procedure , so the word ,referee, applies pretty well I think.

[Graystar]

Therfore the prior statment : "The jury only determines if the facts of the case support a verdict of guilt beyond a reasonable doubt. If so, then the judge judges that guilt with an appropriate sentence." , is not correct.But that's exactly what you just described! :rolleyes:

[Graystar]

So long as no laws were violed, the deliberation room is sanctum sanctorum, as far as the judge is concerned.That is not correct.

http://www.defgen.state.vt.us/lawbook/ch35.htm

During jury deliberations in State v. Corey{5} a juror asked the sheriff to pace off a distance of 92 feet - the distance from which the defendant allegedly shot the victim. The trial judge ordered a mistrial sua sponte, and refused to revise his ruling even after the jury returned a verdict of acquittal. The Vermont Supreme Court affirmed the mistrial ruling, rejecting the defendant's argument that cautionary instructions would have been good enough.

[Graystar]

But back to the subject at hand...

Nonsense! "People" is a plural reference to individual human beings. You cannot get around the fact that virtually no one at the time of the Amendment's ratification, including its framers, understood the word "people" to mean an amorphous conglomerate, to the exclusion of individuals acting alone.That "fact" is a belief you have that simply has no basis. I don't remember reading about 4 million people attending the Philadelphia Convention and having a hand in writing "We the People..." This has always been a country of representation. The US Constitution was just barely ratified, and in several states was accepted by the slimmest of margins. Not every individual was for ratification. Yet every individual is part of “the people.” Obviously, the concept of “the people” is much more than just an amorphous conglomerate. The people are defined by their representation and laws. That is how the voice of the people is heard, and the will of the people is executed.

[The Real Hawkeye]

But back to the subject at hand...

That "fact" is a belief you have that simply has no basis. I don't remember reading about 4 million people attending the Philadelphia Convention and having a hand in writing "We the People..." This has always been a country of representation. The US Constitution was just barely ratified, and in several states was accepted by the slimmest of margins. Not every individual was for ratification. Yet every individual is part of “the people.” Obviously, the concept of “the people” is much more than just an amorphous conglomerate. The people are defined by their representation and laws. That is how the voice of the people is heard, and the will of the people is executed.In choosing to live in a representative republic, all the people (at least implicitly) agree to all the rules, one of which is that in certain instances the majority gets to determine policy, and the rest must "bow to that majority," i.e., the minority, in agreeing to continue their citizenship in our nation, bend their will, at least implicitly, to that of the majority. So it is indeed accurate to refer to majority rule as implicitly the expressed will of all the people. Likewise, if our elected and/or duly appointed government officials should reach a decision, it is assumed to reflect the will of the majority of those they represent, and therefore also (if only implicitly) of the whole. If it does not, our system provides various processes by which the official may be removed, that is to say, all government officials are ultimately accountable to the will of the people. The failure of the majority to act on which, however, implies consent of the majority and implicitly, for reasons stated supra, of the whole.

Representative government doesn't mean, however, that "the people" is just a phrase we use, as in the former Soviet Union, to disingenuously describe the acts of the government. It actually means that those acts, so long as they are allowed by the people to stand, authentically represent the will of the people as a whole, as it is the people as a whole wherein the source of all sovereignty and authority lies under our system of government. So, to state that "the people possess the right to do X,Y and Z" is not a mere metaphor for the government's power to do those things. It means that this right concretely and fundamentally belongs to all the people, i.e., to each individual person, and to the extent that government officials also possess said right, it is due to the fact that the people in their entirety have extended it to them for a specific governmental purpose.

[hugh damright]

diagram grammatical variant clause ...
And as I said in my first post here, if a person goes beyond just the one sentence that is the Second Amendment, and takes into account the requests for the Amendment, then I don't think he can so easily construe the primary object to be individual self-defense. Please, take the requests for the Second Amendment and break them down for us (I provided Virginia's request in my first post here).

Is it possible that the capitalized S in State could refer to the new United States?
I think not. The reason the States were requesting the original amendments, the Bill of Rights, was to clarify that the US is not a State. The US is not a free State. A free State is empowered by the majority, like a popular vote ... the US Constitution creates a different form of government.

And the first three words of the preamble to the constitution refers to whom???
The Constitution begins "We the People ... do ordain and establish this Constitution". Who were the people that established and ordained the Constitution? Was it an individual? Was it the people of the whole US in a "popular vote"? Or was it the States, the people as thirteen sovereignties?

It is my understanding ... I believe it was expressed in the New York Ratification Convention, that the US Constitution would have failed a popular vote.

The US isn't 50 corporate people (States) represented in the federal Government.

From Federalist #39:

"it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution."

[carebear]

But I think my point was that it is one thing to say that the people shall not be disarmed, and another to say that no person shall be disarmed. We still see the proper grammar in formal use, for instance a sign will say "occupancy by x number of persons is unlawful", but in modern casual use we would speak of how many people were in the room. There's no need for anyone to get uppity, all you have to do is hit a couple dictionaries and see what they say about the words "people" and "persons" and how their use has changed over time.

This is from your 2nd post and constitutes your clarification of your first post. In it you make no mention of

And as I said in my first post here, if a person goes beyond just the one sentence that is the Second Amendment, and takes into account the requests for the Amendment, then I don't think he can so easily construe the primary object to be individual self-defense. Please, take the requests for the Second Amendment and break them down for us (I provided Virginia's request in my first post here).

Now you are changing your stated intent to attempt to make your position more defensible AND introducing a strawman. I, and Hawkeye and others are also not claiming the 2nd has ...the primary object to be individual self-defense but rather that it does in definition and intent reference an inalienable individual right to keep and bear arms with only one of many reasons (its necessity for the existence of an effective non-governmental militia) actually stated.

[hugh damright]

My mistake ... in drafting my first post, I included Virginia's request for the Second Amendment, but I edited it out and instead included Virginia's Amendment at the time. I thought it was a better example, because it doesn't even have a clause about the right of the people, it's purely about the collective. I'll tell you what, I'll copy it here again, and then I'll also copy Virginia's request for the Second Amendment, and we'll see if anybody can break them down for us ... first Virginia's original amendment:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

and Virginia's request for the Second Amendment:

That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.


And no, I am not introducing a strawman ... you guys keep saying that the Second Amendment regards the individual RKBA, so I assume you are talking about the individual right to self defense, a right to shoot burglars ... or are we now saying that the Second Amendment is about duck hunting??

The thing is, what we seem to keep missing here, is that there is no individual right to keep and bear arms against government to force them to your individual will. But in a free State, there is a collective right of the people to do just that, to take over their government, to alter or to abolish it. That is what makes a free State different from a monarchy. I think we had the individual rights under King George ... but maybe I'm confused about what personal rights you guys are talking about.

[hugh damright]

Let me put it this way, how do we get from the Virginia Amendment ...

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

to this Statement by Kates ...

It is somewhat misleading, however, to see the Second Amendment as a right to have arms for collective defense against tyanny and foreign enemies. The Amendment's central theme was what our Founding Fathers saw as the basic human right to possess arms for individual self-defense.

What Kates is saying is that it would be misleading to view the Second Amendment as declaring a principle of free government, and that it must be viewed as declaring a principle of libertarianism. It sounds to me like somebody doesn't believe in free government or free States, and so he has to construe the Second Amendment to represent what he happens to believe in. I don't mean to say that Kates lacks integrity or is intellectually dishonest, I just mean to say that ... I don't think that he believes in free States, so instead of viewing the Second Amendment as regarding the security of a free State, he construes it to regard something else, the basic human right.

And let me be clear, I believe in the basic human right, but I do not believe that the Second Amendment or Federal government are delegated jurisiction over our basic human rights, I believe such powers are reserved to the States or to the people. It is not that I don't believe in the individual right ... I think it is people like Kates who do not believe in the political right.

[The Real Hawkeye]

And no, I am not introducing a strawman ... you guys keep saying that the Second Amendment regards the individual RKBA, so I assume you are talking about the individual right to self defense, a right to shoot burglars ... or are we now saying that the Second Amendment is about duck hunting??We are only insisting that the Second Amendment means what it clearly says, i.e., that the right which shall not be infringed is the right to keep and bear arms, and that this right belongs to the people (regardless of the Second Amendment, as clearly implied in the Amendment itself), as contrasted with belonging to any level of state or government.

The purpose of said prohibition (i.e., against infringing on this right) was primarily to preserve the existence of free States. Absent civilians keeping and bearing their personal weapons, militias cannot exist, and the Second Amendment seems to express the point of view that well regulated ones of those are essential to the continued existence of free States, which continued existence the framers thought was a good thing.

We observe that a well regulated militia is not possible without at least the potential for a general militia, from which the well regulated one would derive its members in times of crisis. General militias require armed civilians to populate them, as do well regulated ones, and those civilians are expected to be armed with their own weapons with which, it is assumed, they would possess at least a basic familiarity, or else they cannot, by definition, serve in any militia, least of all a well regulated one.

The issue of individual self defense is one at Common Law, and has little relation to the Second Amendment, which only guarantees that the right of each individual to keep and bear arms shall not be infringed. Now, with regard to self defense, it is a good thing that one's right to keep and bear arms shall not be infringed, but individual self defense is not the central purpose of the Second Amendment. If Kates asserts something contrary, then on this point alone I, for one, agree with you that he is mistaken.

[mnrivrat]

Graystar wrote :

Quote:
Originally Posted by mnrivrat
Therfore the prior statment : "The jury only determines if the facts of the case support a verdict of guilt beyond a reasonable doubt. If so, then the judge judges that guilt with an appropriate sentence." , is not correct.

But that's exactly what you just described!


What I said : The Jury determines the guilt or innocence in a jury trial and only if they grossly error in respect to the law can the judge legaly nullify their decision.

What I discribed is plainly different - what you have the judge doing in your statement is "judging that guilt" . He does no such thing - judging guilt is as I stated, the determination of the jury . Passing sentence is a seperate issue.

[hugh damright]

We are only insisting that the Second Amendment means what it clearly says, i.e., that the right which shall not be infringed is the right to keep and bear arms, and that this right belongs to the people (regardless of the Second Amendment, as clearly implied in the Amendment itself), as contrasted with belonging to any level of state or government.

And I am only insisting that "shall not be infringed" means "shall not be infringed BY CONGRESS". It might not be so clear at first glance, it might take a person a lot of work to conceive it, but I think it is the proper construction and consistent with constitutional law.

And what do you mean that the militia belongs to the people and not the State or government? I think we agree that militia is of/by/for the people, a way for the people to check the government, because that is the principle of free government, the political right. But I guess I don't see where the States fit into your view of militia. And please understand, when I say "State", I am not talking about the Governor or the State Legislature, I am talking about the people of a State as a collective, as a political body. It is my assertion that only a State level militia could ensure a free State.


* * * * * * * * * * * * * * * *

Some folks view the US BOR as regarding our basic human rights, which to me is a view were our basic human rights are under federal jurisdiction or "federalized". And I believe that would undo the US Constitution and our form of government, reconstructing our limited federal government into a national government. I don't think it's proper to use the BOR to further empower the US when the intent was just the opposite - to limit the delegated US powers. In the case of the Second Amendment, I do not think the intent was to delegate the US jursdiction over all aspects of our gun rights, I think they were only delegated some power over the militia, and the Second Amendment was intended to limit that little bit of jurisdiction.

I recently learned that the original amendments are ordered to match the order in the Constitution of the powers they address. There were twelve original amendments proposed to the States for ratification, and the first (which failed) regarded representation i.e. Article One:Section Two. And the second (which failed) regarded compensation i.e. Article One:Section Six. And the next four, which passed and became our First-Fourth Amendments, fit in with the restraints on Congress found in Article One:Section Nine.


* * * * * * * * * * * * * * * *

Some people ridicule the notion that the US Bill of Rights can be seen as regarding States' rights, so I would like to offer something from our history which makes it easier to conceive of what I am talking about. It is a story about free States and secession, when in the 1860's some States decided to exercise their right to alter or to abolish their government, and Maryland was making it's collective mind up. The way I understand it, Maryland was leaning towards secession, so Lincoln sent in the troops: presses that called for secession were shut down and others left operating, people were jailed for peaceful assembly (if I am not mistaken it was tens of thousands of people), habeus corpus was suspended, freely elected representatives were replaced with federal puppets ... in the end, Maryland's free government was taken away. They wanted to secede and didn't even know it, because all the things that were necessary to their free government were taken from them. And if you can put yourself in the position of Maryland, where the federal government is taking over all your aspects of free government, then perhaps you can conceive of how the US Bill of Rights was intended by the States to prevent such a thing, how it was intended to be a "Bill of States' Rights".

[Carl N. Brown]

Actually only legal immigrants choose to live in this democratic
constitutional republic, while most of the native-born and the
illegal immigrants would probably not be able to pass the
naturalization test on the constitution and American history.:(

The Second Amendment is about the right of the people to keep
and bear arms, the reason of most importance to the federal
government is that it is also a good way to support a militia.
But that is not the only reason.

The enumerationof certain rights shall not be construed to
deny or disparage other rights retained by the people.

[ctdonath]

The core flaw in your argument is revealed here: I think my point was that it is one thing to say that the people shall not be disarmed, and another to say that no person shall be disarmed.You're falling for a classic Leftist delusion: that the collective is one thing, and the individuals a separate inferior.

The people, as a collective, IS the sum total of individuals. Granting/recognizing rights of the collective yet denying them to individuals is a self-undermining contradiction. If you deny individuals rights, the collective is denied rights. There is no RKBA for the state without RKBA for the individuals composing it. If you disarm each individual, then the state is disarmed.

(Side note: SCOTUS has ruled that extreme instances, such as violent felons and certified insane, can be denied rights. Before taking on the extreme cases, we must establish the normal cases - upstanding law-abiding competent adults.)

The Founding Fathers recognized this: in a government of the people, the people is the government - there is no false dichotomy wherein the government may be armed yet the people not. Ideally, defense of the state comes exclusively from the people being armed and acting in the security of the state ... hence the 2nd Amendment's wording, which may be paraphrased as "to keep the state secure, the people must be able to arm themselves".

This is not just a theory. The same Founding Fathers shortly thereafter passed the Militia Act of 1792, which REQUIRED all able-bodied males be armed with a specified minimum of weaponry (it also required the government take steps to train and organize them). Thus, it is unquestionable that the 2nd Amendment was intended to permit (even recognize as inalienable) INDIVIDUALS the right to arm themselves: they wrote the 2nd Amendment, then went so far as to legislate a change from permission to requiring self-armament.

Current US code defines every able-bodied male 17-45 as a militia member. Refining components of the law expand the definition, not reduce/limit it.

Miller then began with the presumption that the defendant was part of the militia, then considered whether the weapon in question was useful for milita use. Lacking proof either way, the case was remanded to determine militia usefulness. (That Miller was apparently dead terminated that case.)

That your theory leads to the conclusion that the USA consists of 50 "people" is a red flag indicating something is very wrong with the theory. I can "prove" - in many ways - that 1=2, but that a conclusion is 1=2 indicates that there is something terribly wrong with the theory, i.e.: a preposterous conclusion to a line of reasoning indicates there is something very wrong with the line of reasoning.

So...
- The Founding Fathers used the term "people", indicating the collection of individuals, many times.
- There is nothing indicating that the term "people" changes definition dramatically in short order within the same section of the Constitution, or even across the whole Constitution.
- The "people" means a collection of individuals, each having that right.
- The theory that the collective has a right but individuals do not is as absurd as a mathematical theory proving 1=2; such an outcome indicates error, and the reasoning must not be continued beyond that.
- The Founding Fathers not only recognized the RKBA, but shortly thereafter required it of all militia members.
- US Code currently defines militia members as, at minimum, able-bodied males 17-45.
- Miller recognized an armed citizen as a given, questioning only whether certain arms were NOT militia-suitable, indicating: militia-suitable arms are protected for RKBA.
- At the time, commas and capitalization tended to be modified fairly freely, varying among various legitimate copies of the BoR. The Founding Fathers were more interested in preserving liberty for all individuals than getting grammar exactly right.

[ctdonath]

I am only insisting that "shall not be infringed" means "shall not be infringed BY CONGRESS".The Bill Of Rights recognizes natural rights - rights which pre-exist outside any manifestation of government. As such, it is absurd to think that those rights do not apply to each state government, each city government, etc. The Constitution is the highest law of the USA, requiring all other law within its jurisdiction submit to. That the BoR is plainly for the people, the 2nd Amendment must obviously apply to the people. "We the people of these United States..." is not the states talking. That the USA consists of 50 people is absurd.

The Constitution recognizes the states as collections of people. The Constitution serves the people THRU the states, defining certain federal powers and ordering the federal government to deal with the people as collectives forming states (it took a Constitutional amendment to let the feds tax the people directly.) However, the BoR was added to ensure that certain INDIVIDUAL rights would be protected from the top down. The BoR means nothing if it applies only to the states as 50 entitites, which can in turn transgress the natural rights of the people therein.

[cosine]

Wow! This is pretty amazing. This thread has logically and I believe conclusively proven by now that the right to keep and bear arms is an individual right. (Great arguments to prove that is so, btw) It has taken a side trail into the workings of the judge and jury during a trial, comes back on topic, and yet continues to grow, into five pages and dare I say, beyond.

[Wiley]

This has been good debate. My step-father, who took great delight in arguing any subject, either side, would have enjoyed it. My mother hated it when he would debate her around in a circle to agreing with him.

Everyone has, with minor exceptions, has lived up to 'The Highroad'. I hope Mr. damright has had as much fun as I.

In summary, all I can say is: I'M RIGHT. YOU'RE WRONG! SO THERE.
:evil:

[hugh damright]

The Bill Of Rights recognizes natural rights - rights which pre-exist outside any manifestation of government. As such, it is absurd to think that those rights do not apply to each state government, each city government, etc

I think the way it works is that a Constitution frames a government and a Bill of Rights limits THAT government. And I have come to see the BoR as regarding the natural collective right of a people to govern themselves i.e. free government.

Here is a SCOTUS reference:

Presser v Illinois - "The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to ... the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.'"

* * * * * * * * * * * *

The BoR means nothing if it applies only to the states as 50 entitites, which can in turn transgress the natural rights of the people therein.
Miller v Texas - "it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts."

* * * * * * * * * * * *

There is no RKBA for the state without RKBA for the individuals composing it. If you disarm each individual, then the state is disarmed. (Side note: SCOTUS has ruled that extreme instances, such as violent felons and certified insane, can be denied rights. Before taking on the extreme cases, we must establish the normal cases - upstanding law-abiding competent adults.)

That sounds right to me. Generally speaking, if a State disarms a person, under due process of law, then that is an intrastate matter. But if a State tries to disarm itself, to disarm the people, then ... Second Amendment or not, the US has a duty to say "no".

Presser v Illinois -"the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

[Harve Curry]

Yes it's a natural right. I said words to that effect in a previous post. When you understand that, the 2nd Amendment becomes plainly defined.

May I recommend that book again, The Second Amendment Primer, by Les Adams, Palladium Press. Mr. Adams is a lawyer who didn't believe the 2nd Amendment meant an individual right to keep and bear arms. He set out to prove this point. By reading history of what was available to the founding fathers, he studied what they read, he proved the opposite to himself.

Thanks for starting this H.damright, it's been a good thread.

[Gordon Fink]

[P]erhaps you can conceive of how the US Bill of Rights … was intended to be a “Bill of States’ Rights”.

Oh! Now I see where you are coming from. You would re-fight the Civil War, because you have neglected to read Article VI.

“This Constitution … 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.”

See any contradiction there?

~G. Fink

[hugh damright]

Yes, I do see a contradiction. The law of the land is Tenth Amendment federalism - the separation of State and Federal powers ... yet you seem to think that the US has jurisdiction over our fundamental natural rights.

Let me ask you something ... if there was no US BOR, do you figure that the US would still have jurisdiction over all our rights, or do you think that it is the BOR which bestows this unlimited jurisdiction upon our limited federal government?

[hugh damright]

The Bill of Rights recognizes natural rights - rights which pre-exist outside any manifestation of government. As such, it is absurd to think that those rights do not apply to each state government, each city government, etc

I already answered this comment once, but I want to answer it again.

In a sense, I agree that "those rights" do apply to each State, but I do not agree that the BOR applies to the States. It may seem like a fine distinction, but I think it is significant.

The way I look at it, even if there was no BOR, the Constitution guarantees each State a Republican form of government, and that is free government, and free government requires an armed people, a free press, free assembly, jury trials, and so on ... as I keep suggesting, these are not just individual rights, they are principles of free government. So, if a State Government tried to take over the press to control the people, or tried to take over the guns to control the people, then I think the US should say "no - the people of every State in this Union will have a Republican form of government, where they control their government rather than the other way around." But see ... I am talking about political rights, about the US protecting each State's free government ... in contrast, when people want the US BOR to apply to the States, typically they mean that they want the US to force libertarianism upon every State. Virginia did not request the original amendments because we wanted the US to force a foreign culture upon us, we were trying to prevent that kind of thing.

[The Real Hawkeye]

And I am only insisting that "shall not be infringed" means "shall not be infringed BY CONGRESS." It might not be so clear at first glance, it might take a person a lot of work to conceive it, but I think it is the proper construction and consistent with constitutional law.Yours is, I think, a not completely unreasonable stance at first glance, but is, I believe, provably incorrect. Here's why: Unlike the First Amendment, the Second Amendment does not, in its language, only restrain Congress. You might argue in response that this doesn't matter, since the entire point of the Bill of Rights was to restrain the newly established Federal Government, but this is not entirely true. States are also restrained to some degree by the language of the Constitution, e.g., States are denied by this document the authority to declare war, engage in foreign diplomacy, coin money, etc. Implicitly, States are also restrained from disarming the Militia of the United States, which militia is made up of a portion of the members of the various State militias.

How is that, you ask? Well, it's right there in Article I, Section 8 of the US Constitution, where the powers of Congress are listed. One such is the power to call forth the Militia to execute the laws of the Union, etc. Now, the militia cannot be called forth if is does not exist, and since the definition of a member of the militia is a civilian prepared, with his own arms, to muster in times of emergency, the States are precluded by the Supremacy clause from preventing civilians from possessing and drilling with arms suitable for service in a militia, as this would frustrate the exercise of a power granted to the Federal Government. The Federal Government, in times of emergency, cannot call forth the militia if said militia does not first exist.

Furthermore, the Second Amendment presumes the existence of a well organized militia, referring to the very same militia mentioned in Article I, Section 8. Combine these facts with Article VI's Supremacy Clause, whereby all powers granted to the Federal Government, when used, supersede any contradictory claims to power by the States, and you have a pretty air tight case for the States being prohibited by the US Constitution from disarming the militia, for it is certainly in conflict with the Federal Governments power to call them forth if they are not permitted to exist under State law.And what do you mean that the militia belongs to the people and not the State or government?You are being disingenuous. I never said that. You are intentionally twisting my words. What I said, and you know this, was that the right to keep and bear arms belongs to the people, not to any strata of government or the state.I think we agree that militia is of/by/for the people, a way for the people to check the government, because that is the principle of free government, the political right. But I guess I don't see where the States fit into your view of militia. And please understand, when I say "State," I am not talking about the Governor or the State Legislature, I am talking about the people of a State as a collective, as a political body. It is my assertion that only a State level militia could ensure a free State.Nice try. The State, no matter how you look at it, is not the same as the people, though it is controlled by the people in a representative republic, and ideally it represents their will.

[Graystar]

what you have the judge doing in your statement is "judging that guilt" . He does no such thing - judging guilt is as I stated, the determination of the jury . Passing sentence is a seperate issue.Every time I go to jury duty they tell us that we're not the one's judging the accused. I guess they're just lying to us to appease those people who feel they shouldn't judge others, eh?

[The Real Hawkeye]

I already answered this comment once, but I want to answer it again.

In a sense, I agree that "those rights" do apply to each State, but I do not agree that the BOR applies to the States. It may seem like a fine distinction, but I think it is significant.

The way I look at it, even if there was no BOR, the Constitution guarantees each State a Republican form of government, and that is free government, and free government requires an armed people, a free press, free assembly, jury trials, and so on ... as I keep suggesting, these are not just individual rights, they are principles of free government. So, if a State Government tried to take over the press to control the people, or tried to take over the guns to control the people, then I think the US should say "no - the people of every State in this Union will have a Republican form of government, where they control their government rather than the other way around." But see ... I am talking about political rights, about the US protecting each State's free government ... in contrast, when people want the US BOR to apply to the States, typically they mean that they want the US to force libertarianism upon every State. Virginia did not request the original amendments because we wanted the US to force a foreign culture upon us, we were trying to prevent that kind of thing.Hugh, I am beginning to understand you. I see now that you and I agree in broad terms, however, the Federal Constitution does in fact prohibit the States from exercising certain powers, if the exercise of those powers by the States would conflict with a power clearly granted to the Federal Government. That's what the Supremacy Clause is all about. As for the Tenth Amendment, I agree with you, but even the Tenth Amendment states that the Federal Government has certain powers, i.e., those delegated to it by the Constitution. The power to call forth the militia is one of those powers. Therefore no State law will be allowed to frustrate this power. Any State law which has the effect of disarming the militia frustrates Congress' power to call any portion of that militia forth in times of emergency, and is thus null and void.

[Graystar]

You guys are reading WAY too much into the Bill of Rights. I seriously doubt if any framer was considering all this theoretical mumbo-jumbo that’s being suggested.

The problem is that it’s so simple you can’t see it...or are unwilling to accept the simple nature of its origins.

Nearly all the Bill of Rights directly addresses grievances that the colonies held against the King. The colonist saw the new federal government as being on the same level as the King (which is was.) They simply wanted to make sure that this new federal government didn’t do the things that King had tried, so they explicitly stated what could not be done by the federal government.

You can match several of the amendments directly to grievances outlined in the Declaration of Independence or to acts committed against the colonies by the King. And anyone who’s studied the history of the era can tell you that the crown tried to empty the colonies’ armories, and thereby disarm the militia, when it seemed clear that war was going to break out. The Second Amendment was written simply to insure that this wouldn’t happen again...and that’s all. Trying to read any more into it is an exercise in fantasy.

[The Real Hawkeye]

You guys are reading WAY too much into the Bill of Rights. I seriously doubt if any framer was considering all this theoretical mumbo-jumbo that’s being suggested.

The problem is that it’s so simple you can’t see it...or are unwilling to accept the simple nature of its origins.

Nearly all the Bill of Rights directly addresses grievances that the colonies held against the King. The colonist saw the new federal government as being on the same level as the King (which is was.) They simply wanted to make sure that this new federal government didn’t do the things that King had tried, so they explicitly stated what could not be done by the federal government.

You can match several of the amendments directly to grievances outlined in the Declaration of Independence or to acts committed against the colonies by the King. And anyone who’s studied the history of the era can tell you that the crown tried to empty the colonies’ armories, and thereby disarm the militia, when it seemed clear that war was going to break out. The Second Amendment was written simply to insure that this wouldn’t happen again...and that’s all. Trying to read any more into it is an exercise in fantasy.Thanks for clearing it all up for us, Graystar. :)

[Graystar]

Thanks for clearing it all up for us, Graystar. :)Anytime Hawkeye! ;)

[cz75bdneos22]

Graystar, Sir you are simply Mahvelous!! he,he !!
keep it simple stupid, i heard that somewhere before..:eek:

[Dex Sinister]

That sounds right to me. Generally speaking, if a State disarms a person, under due process of law, then that is an intrastate matter. But if a State tries to disarm itself, to disarm the people, then ... Second Amendment or not, the US has a duty to say "no".

Which simply takes you into the wilderness of 14th amendment jurisprudence, since the 14th fundamentally changed the dynamic between the States and the Federal government.

The writers of the 14th were not only aware of, but deliberately intended to force the states to stop infringing on Black's gun rights, as part of the attempt to dismantle the Black Codes.

Given the incorporation doctrines followed by the Warren court, it's a little difficult to see why the 2nd amendment isn't as worthy of incorporation as any of the other amendments were.

You might be interested in:
Structure, participation, citizenship, and right: Lessons from Akhil Amar's Second and Fourteenth Amendments - Georgetown Law Journal (http://www.findarticles.com/p/articles/mi_qa3805/is_199907/ai_n8868697)

Really, though, most arguments come down to a single, fairly simple point:

Either one believes that US governments are capable of collectively holding rights that do not exist individually, and one fabricates arguments from that position - which in the end must mean that rights are a species of thing granted by the government as exceptions to its powers,

Or, one believes that the government cannot logically possess any authority not first existing at the individual level and then being deligated in part to the government. When one fabricates arguments from this position, in the end one will conclude that rights are inherantly an individual species of thing out of which individuals, acting together, grant our government some limited powers and authority.

[As you might recall, this was Hamilton's argument in Federalist #84, where he pointed out that the very idea of an American Bill of Rights was a bad one - because all through history Bills of Right had been grants of right to individuals from an unlimitedly-powerful government, and attaching one to our Constitution would only confuse the issue of what we had created.] But, I digress.

I've been studying philosophy for the last 25 years of so, and I can tell you that case law is merely ordinary philosophy, tarted up and considerably confused by the language pretense of pretending that nothing in the law ever changes - while instituting whatever changes one feels are "necessary".

From a philosophical viewpoint, this tends to make case law fairly useless to read - because most of the writing effort is actually made in the direction of obfuscating what one is doing, while pretending to be doing nothing at all.


If the American people created our government, then ultimately any argument that holds that it possesses the authority to determine the extent of individual citizen's rights is logically self-defeating.
If the government created itself, then ultimately it has all the authority in the world.


<shrug>

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[The Real Hawkeye]

Given the incorporation doctrines followed by the Warren court, it's a little difficult to see why the 2nd amendment isn't as worthy of incorporation as any of the other amendments were.That's because the Second Amendment doesn't require the Fourteenth Amendment in order to be incorporated by the States. It is self incorporating since, 1) it is a general prohibition (not specific to Congress), and 2) it references militias, which are also mentioned in the main body of the Constitution in the context of a power of Congress to call them forth in times of emergency (Article I, Section 8). Therefore, since it is a power of the Congress to call them fourth, States are prohibited from frustrating their purpose with laws having the effect of disarming them. A disarmed militiaman is no malitiaman at all, and therefore cannot be called forth as a militiaman since a militiaman is, by definition a civilian who musters with his own weapons in response to emergency.

[Nematocyst]

I'm a biologist, not a legal scholar.

I've been 'sort of' following this thread for days...or is it weeks? I've lost track.

There are some very intelligent folks writing here, who have clearly studied this issue, who have articulate opinions about the 2nd and other amendments.

My hat is off to them.

However, I'm more interested in biology than law. Even though I value the 2nd (along with the other BOR amendments), honestly, I'm more interested in the citric acid cycle, ecosystem function, animal physiology & how to stop the heart beat of a (choose one or more) deer, quail, rabbit, elk, squirrel or human interloper than I am the fine points of punctuation, grammar, spelling and other details of 'goverment' documents 'governing' <ahem> whether I do or do not have the right to own a weapon, let alone use it to defend myself.

Right now, I'm assuming that I do. My 9 is just inches from my right hand. Any 'interloper' will feel its sting.

But my point is this: I hope, as this thread winds down (and they all do eventually wind down), that one or more of you will write a 'cliff notes' summary of it for biologists and others who don't really want to follow arguments about where the comma is and what it means, let alone try to reason what the founding fathers had to say or what the amendments meant.

By the way, I wonder what the founding mutha's would have had to say about individual rights v. those of 'the people', particularly given that their 'individual' babies were to become the next generation of 'people'.

My sense is, they'd say, sc**w the legal scholars. Defend yourself.

Nem

[The Real Hawkeye]

But my point is this: I hope, as this thread winds down (and they all do eventually wind down), that one or more of you will write a 'cliff notes' summary of it for biologists and others who don't really want to follow arguments.Here's what you do. Open a new Word file. Then cut and paste every post I contributed to this thread, in consecutive order, onto the Word file. Now read what you have from beginning to end, and you will have the definitive last word on this entire issue. :D

[Nematocyst]

Here's what you do. :D Why do I postulate that there will be at least X others who argue the same about their positions? :D

OK, I'll modify my request: I hope that one or more 'unbiased' readers (assuming that any exist in here; admittedly, perhaps, an unreasonable assumption) will offer a 'cliff notes summary' of this thread when it 'ends'.

Nem

PS: the citric acid cycle is way more interesting, and with a MUCH longer history. Futhermore, lawyers & legal scholars can't touch it, because there are no human laws about it, and - more importantly - they simply don't understand it.

:neener:

[Graystar]

Here's what you do.And don't forget to add "...in another universe." at the end of each one. :D

(J/K...not every one :p)

[hugh damright]

You are being disingenuous. I never said that. You are intentionally twisting my words. I did not intend to twist your words ... here, I will cut and paste your exact words:

"this right belongs to the people (regardless of the Second Amendment, as clearly implied in the Amendment itself), as contrasted with belonging to any level of state or government."

I asked for a clarification, I asked:

"what do you mean that the militia belongs to the people and not the State or government? ... I guess I don't see where the States fit into your view of militia."

And, again, it is my assertion that only a State level militia can ensure the security of a free State, that only a Virginia Militia can ensure the security of Virginia.


The State, no matter how you look at it, is not the same as the people
So the militia is needed for the security of WHAT?? If it is not needed for the security of a free people, but rather for a free State which you claim means something other than people ... what are you talking about?

And is it your assertion that Virginia is one thing and Virginians something else? The whole premise of a free State is that the State is the people. A free State is a body of people under a free government ... or do you have another definition?


Which simply takes you into the wilderness of 14th amendment jurisprudence
My intent here is to promote an understanding of, and respect for, free government. The 14th "Amendment" is a reconstruction amendment, intended to reconstruct our free government into something else.


You can match several of the amendments directly to grievances outlined in the Declaration of Independence or to acts committed against the colonies by the King.
"He has kept among us, in times of peace, standing armies, without the consent of our legislatures."

"He has affected to render the military independent of, and superior to, the civil power."

[hugh damright]

I'd like to offer a couple of examples of recent history where I think the political rights aspect of the Second Amendment can shine some light on things ...

Michael New was a US soldier who was told to put on a UN beret, and he said "NO". To me, this is a Second Amendment issue ... the military must always be the people's military, under the civil power, and if a US soldier puts on a UN beret, he is then a foreign solder and our military is no longer of/by/for the people.

And when the action in Iraq was being considered, at one point it seemed like the media was confused ... was it George Bush or Tony Blair who called the shots, who controlled our military? To me, this is another Second Amendment issue ... the States delegated the war power to Congress, so that is the civil power, not George Bush, and certainly not Tony Blair.

"That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power. - Virginia's Request for the Second Amendment"

* * * * * * * * * * * * * * *

Virginia, in addition to requesting a US Bill of Rights with the request for the Second Amendment, also requested an amendment which regarded the notion of State Militia, and seems to clarify that they were State Militia, and that unless the US called them forth to help with some national matter, they were under jurisdiction of their State.

"That each State respectively shall have the power to provide for organizing, arming and disciplining it's own Militia, whensoever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State."

(To clarify, the requests for a Bill of Rights was one matter, and the requests that the Constitution be changed or amended was another matter. Virginia requested a Bill of Rights with twenty articles, and also requested twenty amendments to the Constitution.)

[The Real Hawkeye]

I did not intend to twist your words ... here, I will cut and paste your exact words:

"this right belongs to the people (regardless of the Second Amendment, as clearly implied in the Amendment itself), as contrasted with belonging to any level of state or government."

I asked for a clarification, I asked:

"what do you mean that the militia belongs to the people and not the State or government?"Hugh, don't take this the wrong way, but is English your first language?

And, again, it is my assertion that only a State level militia can ensure the security of a free State, that only a Virginia Militia can ensure the security of Virginia.

So the militia is needed for the security of WHAT?? If it is not needed for the security of a free people, but rather for a free State which you claim means something other than people ... what are you talking about?If English is not your first language, I mean, really, there's nothing to be ashamed of, man.And is it your assertion that Virginia is one thing and Virginians something else? The whole premise of a free State is that the State is the people. A free State is a body of people under a free government ... or do you have another definition?A State, whether it be Virginia or Alabama, is "a political unit having territory, population, and sovereignty over its internal affairs." The population of a state is a component of it, but is not identical with it. A free State is one which is accountable to its population, and at liberty to exercise sovereignty over its internal affairs, absent extraconstitutional interference from any larger strata of government with which it is associated.My intent here is to promote an understanding of, and respect for, free government. The 14th "Amendment" is a reconstruction amendment, intended to reconstruct our free government into something else.On this we agree."He has kept among us, in times of peace, standing armies, without the consent of our legislatures."

"He has affected to render the military independent of, and superior to, the civil power."Nice use of the Declaration of Independence. We are on the same wavelength here.

[Dex Sinister]

Nearly all the Bill of Rights directly addresses grievances that the colonies held against the King. The colonist saw the new federal government as being on the same level as the King (which is was.) They simply wanted to make sure that this new federal government didn’t do the things that King had tried, so they explicitly stated what could not be done by the federal government.

You can match several of the amendments directly to grievances outlined in the Declaration of Independence or to acts committed against the colonies by the King. And anyone who’s studied the history of the era can tell you that the crown tried to empty the colonies’ armories, and thereby disarm the militia, when it seemed clear that war was going to break out. The Second Amendment was written simply to insure that this wouldn’t happen again...and that’s all. Trying to read any more into it is an exercise in fantasy.

Historically speaking, that's not quite all that the Bill of Rights was doing - although it is certainly true that one can match up amendments with grievances in the Declaration of Independence.

Specifically, the Declaration of Independence was constructed to echo in the mind of the English reader the concerns of violation by King George III of the individual rights of Englishmen guaranteed in the English Bill of Rights of 1689. William and Mary were forced to sign this before assuming the Crown after the English deposed James the II after he converted to Catholicism. By inclusion, this also referenced those rights confirmed by the Magna Carta of 1215.

If you look at what might be called the preamble text of the 1689 Bill of Rights, (http://www.yale.edu/lawweb/avalon/england.htm) it is easy to see the parallel between both the Declaration, and our Bill of Rights.

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;

By committing and…

It is worth noting that the Right to Bear Arms, contained therein, was considered an individual right possessed by all subjects of the Crown by the English in the 1700's.

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

This represents a continuation of the Germanic (Anglo-Saxon) tradition that the people, individually, had the right to freedom, the right to bear arms, the right to be punished only after being convicted in a trial by jury, and the right to elect their own representatives and determine the course of their government.

Most germane to this discussion: The idea that the Founders, who were extremely cognizent of the principles of the English Glorious Revolution of 1689, somehow failed to regard the right mentioned in the 2nd amendment as an individual right is just a little bit silly.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[Gordon Fink]

[Y]ou seem to think that the US has jurisdiction over our fundamental natural rights.

Wrong. I know that neither the U.S. federal government nor the governments of the several states have jurisdiction over any of our natural rights. The Bill of Rights legally protects several from violation by state or federal agency and admonishes the same to respect those rights not listed as well.

Of course, none of this matters in practice, and the Bill of Rights is honored most often in its breach. No document or government can give or take natural rights. Thus the syntax of the Second Amendment has no actual bearing on our right to own and use weapons.

~G. Fink

[hugh damright]

A State, whether it be Virginia or Alabama, is "a political unit having territory, population, and sovereignty over its internal affairs." The population of a state is a component of it, but is not identical with it.

Yes, the word "State" has various meanings. And if we were talking about geography, then it would be appropriate to think of the States as territory, but we are talking about government, and in that sense, a State is a political body, a body of people, and the body of people which is the State is also the body of people which is the militia.

[hugh damright]

Hey ... this is quite a forum! I don't think I knew what I was getting into with this thread .. there seems to be a lot of people here with a lot of knowledge and ... patriotism.

I want to be sure to emphasize the point that if the Second Amendment is viewed as a political right, as a collective right of the people to keep and bear arms to alter or to abolish their government, then it becomes very clear that it cannot be regarding the National Guard. At least I personally do not recognize the right of the National Guard to alter and abolish my government, and I do not see how anyone can take this view, this view where the National Guard has a right to control my State, and call it a "States' Rights" view. That is not a States' rights view! And it has nothing to do with the security of a free State! A free State is ruled by laws consented to by the majority, a free State is not ruled by the National Guard!

I believe that the true States' rights view of the Second Amendment is where Virginians have the collective RKBA, not just the individual RKBA, but even greater than the individual right, we have the collective right to get together and practice and drill and form well regulated militia that is capable of defending our free State. I think that is our natural right, that it existed before the US Constitution, and that the Second Amendment was intended to protect this right.

[antsi]

When people try to re-interpret the second ammendment so that it does not apply to individuals, I am reminded of the phlogistonists and geocentrists.

The geocentrists, when confronted with evidence of a heliocentric solar system, constructed elaborate systems of "eipcycles" - planets moving in circles upon circles upon circles, in order to "explain away" the plain truth of the matter, that was obvious on the face of it, that the planets were moving around the Sun.

Biologists who believed in spontaneous generation invented a magical substance they called "phlogiston" to explain how maggots arise spontaneously from rotting meat and rats arise spontaneously from bins of corn.

In all three cases, you have people weaving elaborate fantasies and constructing patently absurd entities in order to perpetuate belief in something that is just patently prima facie wrong. Folks who want to wish away the second ammendment invent ludicrous notions like "collective rights" and construct complex evasions and hyperventilate about commas, all in order to explain why the second ammendment doesn't mean what it obviously does mean.

It's sad, really.

When people accused Hugh Damright of being a troll, they were being rude but I do sympathize with the eerie "something's not right here" feeling that the accusation reflects. Whenever someone is bending over so far backwards to believe something so patently absurd, you do start to wonder what is motivating them to contort themselves so grotesquely and swallow so many logically indigestible entities - like phlogiston, epicycles, and "collective rights."

[hugh damright]

I think that it's a bit late in the debate to deny the existence of collective rights. Some examples of collective rights are:


the right to form a well regulated militia
the right to alter or to abolish government
the right to establish and ordain a constitution
the right to declare war and peace

Of course, someone will want to reply with some closed circle logic where every collective right is a "power", but it won't hold up. If the US is attacked, will you say that we have a power to defend ourselves but no right to defend ourselves? It does not hold up. There is a collective right to self defense, and that is what the Second Amendment is all about.

Some of you guys better start paying attention, I may throw a pop quiz!;)

[boyd425]

I want to be sure to emphasize the point that if the Second Amendment is viewed as a political right, as a collective right of the people to keep and bear arms to alter or to abolish their government, then it becomes very clear that it cannot be regarding the National Guard.

The national guard came into existence around 100 years -after- the signing of the constitution. This is a hagard old strawman that we don't have to answer with deeper arguments about "collective rights" (of which I dont think there are any ; ) boyd425

[The Real Hawkeye]

I think that it's a bit late in the debate to deny the existence of collective rights. Some examples of collective rights are:


the right to form a well regulated militia
the right to alter or to abolish government
the right to establish and ordain a constitution
the right to declare war and peace
Actually, what he probably meant to criticize is the view that a collective right is to the exclusion of the corollary individual right. I actually, for example, have the right to declare war, as do you. I have waived the exercise of this right, because I have decided that the benefits of doing so outweigh the costs, but the right is still there. If it wasn't there, there could be no collective right to do so in the form of the authority we give to our government. The same principle applies to all of the collective rights you mentioned. They are only collective rights in the sense that we all have the right to act upon them, but either have waived the exercise of them for a greater benefit, or choose to exercise it as a member of a unity, rather than as an individual. For example, the right to form a militia is next to useless when exercised alone, but each individual member is exercising his individual right to be a member of said militia, so the "collective" right is just the sum total of all the individual rights, rather than being to the exclusion of the individual right.

[antsi]

Some examples of collective rights are:


Whatever. You're bending over backwards and tying yourself in knots to argue that where the Constitution says "the sky is blue," it really means "the sky is yellow." It is absurd on the face of it.

The only reason someone would attempt to swallow such a tangle of nonsense is if they had already decided they want to take the people's guns away and were trying to concoct justifications for it.

[geekWithA.45]

Again Hugh, you continue to assert mutual exclusivity where none exists.


:banghead: :banghead: :banghead:

{Why do I bother?}

[hugh damright]

The only reason someone would attempt to swallow such a tangle of nonsense is if they had already decided they want to take the people's guns away and were trying to concoct justifications for it.

I resent that. Just because you cannot conceive of what I am talking about is no reason to insult me by saying that I want to take people's guns away. Perhaps you are not up to walking on the high road and should leave my thread.

[hugh damright]

I think I need to further promote the idea of a political or government perspective.

If we consider the Second Amendment's term "free State", there are different definitions for both the word "free" and the word "State". Generally speaking, the word "free" means "unrestricted" ... and the word "state" can mean "condition", such that a "free State" might refer to an "unrestricted condition", a libertarian society, where everyone is free and has the highest degree of personal liberties.

But if we consider that the Constitution and Bill of Rights are political documents, and use the political definition of words, then a different meaning appears ... politically speaking, a "State" is a body of people under one government, whatever kind of government it might be ... it might be a communist State, a monarchial State, an oligarchial State, a socialist State ... and then there's a "free State", which is a body of people under a specific form of government - free government.

In reference to government, "free" means not subject to the arbitrary rule of a King or aristocracy, but subject only to the rule of laws which are consented to by the people. Free government is based upon consent of the majority, or majoritarianism. It is founded upon the collective right of a people to govern themselves, and to alter or to abolish their government if they find it is no longer to their liking. And it is my assertion that a Bill of Rights enumerates principles which are needed to ensure this majority rule.

The word "rights" also has many meanings, although some people seem to insist that it can only refer to libertarianism. But in a political document, I suggest that the object is political rights - principles which are "right" according to a system of government.

For example, my Virginia Bill of Rights declares that government should have separate branches. That is not a libertarian/individual right. The libertarian view will not hold up if you consider more than one example, if you go beyond the way Madison drafted the US BOR and look at other examples. Virginia's Bill of Rights also declares the right of the majority to alter or to abolish the government ... the individual rights view simply does not hold up. What does hold up is the view of political rights.

I challenge everyone here to read the US BOR and try to imagine if there is some way that the rights enumerated might be principles of free government intended to protect majority rule. It doesn't pop out a first glance, it's a learned view. But just ask yourself, how might a minority take over? Might they take over the presses? Take over the guns? If a minority is taking over and someone speaks up, might they ransack his house, arrest him on false charges and hold him without trial? Might this be why the Bill of Rights says that we must have a free press, an armed people, the right to be secure in our persons, houses, papers, effects, indictment of a Grand Jury, and speedy trials?

[boyd425]

I think that it's a bit late in the debate to deny the existence of collective rights. Some examples of collective rights are:
snip
Some of you guys better start paying attention, I may throw a pop quiz!;)

Quizmeister ; ) the post you replied to mentioned collective rights only in passing with a smiley at the end and -in- -parenthesis-. The -point- of the post was the sentence at the -front-: "the national guard was formed more then 100 years after the constitution"... please pay attention ; ) You used that as the link between the 2nd and the States right. And like I said it's a strawman foisted on us decades ago by handgun control inc. Time to get over that one.
boyd425

[antsi]

I resent that. Just because you cannot conceive of what I am talking about is no reason to insult me by saying that I want to take people's guns away. Perhaps you are not up to walking on the high road and should leave my thread.

Nothing I said was ad hominem.

You're the one who's implying that the only reason I don't agree with you is because I'm too stupid to understand the brilliant complexities of your argument.

Perhaps you are not up to walking the high road yourself.

I do think it's a natural curiousity, if someone is working overtime to establish his legal right to burn down my house, to wonder "why does this guy want to burn my hourse down?" And it's very interesting that you would take such huffy umbrage at such speculation. Even more interesting that you'd come on a gun board expounding a reinterpretation of the second ammendment that basically emasculates it, and you are shocked, shocked you tell us, shocked and horrified when anyone wonders if perhaps you're not in favor of people keeping and bearing arms.

You're a very interesting person, Hugh Damright.

But I will be very pleased to stay out of your thread.

[geekWithA.45]

I challenge everyone here to read the US BOR and try to imagine if there is some way that the rights enumerated might be principles of free government intended to protect majority rule.

I can certainly read it in that way, but Occam's Razor strongly suggests that it is an inferior reading.

The simpler reading from the protected personal rights is more parsimonious, does not offend the Lockean thesis of certain natural powers yeilded to form the animus of government, while retaining other rights not specifically yeilded.

This reading is also more consistent with the bulk of history, legal, and scholarly analysis.

Hugh: We UNDERSTAND what you are saying. We're not dull oafs. WE REJECT IT FOR SOUND REASON.

[hugh damright]

This reading is also more consistent with the bulk of history

No SCOTUS has ever seen it that way ... that reading is antithetical to our constitutional legal history.

[carebear]

cite?

[hugh damright]

I cannot cite that no SCOTUS has ever said something, it would be up to you to cite them saying it. Show me one SCOTUS case that says that the Second Amendment limits the States, or that the US has jurisdiction over the individual RKBA except as an aspect of the collective right to militia.

I can show you cases where the SCOTUS says that the Second Amendment only limits the federal government, and that kind of thing, but I believe I have already done that here ... anyway, if you really want to check it out, see presser v illinois, us v cruikshank, miller v texas, us v miller, and each of those references lots of other cases and off you go.

[carebear]

I cannot cite that no SCOTUS has ever said something, it would be up to you to cite them saying it. Show me one SCOTUS case that says that the Second Amendment limits the States, or that the US has jurisdiction over the individual RKBA except as an aspect of the collective right to militia.

I can show you cases where the SCOTUS says that the Second Amendment only limits the federal government, and that kind of thing, but I believe I have already done that here ... anyway, if you really want to check it out, see presser v illinois, us v cruikshank, miller v texas, us v miller, and each of those references lots of other cases and off you go.

I'm fully aware of the relevant cases, but, in a point of order, YOU were the one making the claim "No SCOTUS has ever seen it that way". I have not made any claim for their decisions, nor that they in particular agree with my position.

Ergo, it is up to you to show that they have in fact stated a position directly supporting you since you are the only one making an appeal to their authority.

Since it has been fairly clearly demonstrated that your assertions to this point depend on a tortuous interpretation of the text, unsupported by general Constitutional scholarship, it would be helpful if you could show that in fact the Supremes have backed your opinion. That would provide at least one credible supporter. :rolleyes:

[Art Eatman]

(Whine) Hardly anybody reads the Preamble to the BOR (or my occasional references to it) which says WHY there is a BOR.

All these arguments against the pro-gun folks' view of the 2nd don't seem rational to me, given the purpose of the BOR.

hugh, I've been away for a few pages. Did you refute my reference to Urriquez-Verdugo, insofar as SCOTUS talking about "the people" meaning individuals throughout the BOR?

Art

[Graystar]

The idea that the Founders, who were extremely cognizent of the principles of the English Glorious Revolution of 1689, somehow failed to regard the right mentioned in the 2nd amendment as an individual right is just a little bit silly.Oh please...half those guys were slave owners. Please don’t elevate them to some special level of enlightenment on rights and government-forming, because they had neither.

Practically every word in the Constitution and Bill of rights was argued over. Some didn’t want a bill of rights at all! Few were happy with the results, as indicated by the fact that the Constitution was barely ratified. It’s a miracle this government ever got off the ground at all.

It is worth noting that the Right to Bear Arms, contained therein, was considered an individual right possessed by all subjects of the Crown by the English in the 1700's. and what of that “as allowed by law” at the end?

[odysseus]

I'm sorta simple-minded, so I have difficulty with angels and pinheads and dances thereupon.

So, it looks to me like I oughta start with the purpose of the BOR. That's pretty obvious from the Preamble; the BOR is to restrain the central government--the "State"--from abuse of power.

Seems to me it's hard to restrain a State if only the employees of the State have guns. Ergo, the citizenry is supposed to be armed.

Next thing is that one fella did most of the writing. I really doubt he wandered through the rose bushes and tulips with several dictionaries, picking and choosing among word meanings. Seems to me that if "the people" is singular one place, it's singular everywhere. That's pretty much what SCOTUS said in 1992 with Urriquez-Verdugo.

We already know that "militia" is just us folks, the male citizenry from, what, 16? on up to around 45 years. I'm too old to now be part of it. (What the heck. I already did my marching, 50 years ago.) Since we're no longer male chauvinist pigs, women are now part of the militia, and high time, I say!

In the Anti-Federalist papers, the proponents of the Second Amendment stated quite boldly that the right to bear arms did not apply to "the insane and those of ill repute". I've yet to hear anybody disagree with the idea that certain crazy people ought to have firearms. I pretty much am forced to assume that "ill repute" at the very least means what we today call "felons". At any rate, even the proponents agreed that there were certain limits to RKBA. The limits, however are well-defined insofar as non-nit-picking everyday english is concerned. (I have faith that there will always be those who envision the picking of nits as a career choice.)

So I have no difficulty in agreeing with the NRA/GOA/JFPO/etc. about the Second Amendment. The view is in accord with the Preamble...

:), Art

+1.

Agenda's aside, I don't see how anyone can read it differently.

[RealGun]

I think it's important to remember that the amendments were drafted by Madison, who had a federalist/nationalist intent of a BOR that would limit the States and federalize individual rights ... but Madison's intent failed, and we got a BOR which only limited the federal government.

Individual rights have since been "federalized" by the 14th Amendment, post Civil War. The 14A has yet to be applied to the 2nd Amendment by way of a Supreme Court ruling. That is to say that States cannot rightfully infringe upon the RKBA, but some will continue to arrest, fine, confiscate, and prohibit until legally challenged to the desired outcome. As we have seen thus far, the federal courts resist granting cert to such cases. That raises the question of whether a denial of cert should require a justifying comment from the Court.

[The Real Hawkeye]

Practically every word in the Constitution and Bill of rights was argued over. Some didn’t want a bill of rights at all! Few were happy with the results, as indicated by the fact that the Constitution was barely ratified. It’s a miracle this government ever got off the ground at all.That's because all sides of the debate were concerned that the form of Constitution the "other guys" wanted would result in a loss of liberty, and they had different ideas about how to prevent that. Both the Federalists and the anti-Federalists wanted a strictly limited Federal Government. The Federalist argued against a Bill of Rights because they believed that 1) it wasn't needed, since the Federal Government does not have plenary power, having its powers limited to those listed, and 2) a Bill of Rights gives the false and dangerous impression that, apart from the restrictions found in said Bill of Rights, the Federal Government's powers are plenary, i.e., that it had all powers not specifically denied to it in writing, the opposite of what either side wanted. The anti-Federalists wanted a Bill of Rights anyway because they believed that all government was deadly dangerous in that they all eventually tend to assume (i.e., usurp) powers not delegated to them, so they wanted a constant reminder, in the body of the Constitution itself, that there were certain powers that they could never claim. Both sides, however, had the same goal. It wasn't as if one side was arguing for an all powerful Federal Government and the other side was arguing for a limited Federal Government.

[hugh damright]

Ergo, it is up to you to show that they have in fact stated a position directly supporting you since you are the only one making an appeal to their authority.

Since it has been fairly clearly demonstrated that your assertions to this point depend on a tortuous interpretation of the text, unsupported by general Constitutional scholarship, it would be helpful if you could show that in fact the Supremes have backed your opinion. That would provide at least one credible supporter. :rolleyes:

I have already done that :rolleyes:. Here, I will repeat myself:

Presser v Illinois - "The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to ... the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.'"


Miller v Texas - "it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts."

Also I could mention US v Cruikshank - "The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, 'the scope and application of these amendments are no longer subjects of discussion here.' They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States."

Again, you guys need to show me one case, one SCOTUS case from all of history, which says otherwise. Put up or ...

[RealGun]

Show me one SCOTUS case that says that the Second Amendment limits the States, or that the US has jurisdiction over the individual RKBA except as an aspect of the collective right to militia.

Making such a demand is probably why the federal courts want to support it. They have simply denied cert to all such cases, recently Silveira v Lockyer. That was a good case but was denied a hearing. Those denials are always without comment or accountability, giving us an imperial court along with good reason to be cynical about due process and to be disrespectful of the Court. It also makes us intensely interested in who is nominated to the higher Courts.

Lousy Court decisions don't trump what the Constitution actually does or does not say. They only establish what the current legal situation might be in practical terms. One appalled at some of these decisions can only hope that at some point the Constitution will be properly acknowledged by some overriding ruling. That will never happen until the Court feels compelled to hear some of these cases which it tries to avoid. So who sits on the Court really matters.

[The Real Hawkeye]

It often amazes me that on certain fundamentals I strongly disagree with RealGun, yet on final conclusions, we almost always agree. This is one such case.

Regardless of decisions to the contrary, the Second Amendment, without setting limits, certainly references a right belonging to the people to keep and bear arms. Additionally, it goes further and establishes as law that this right "shall not be infringed." Unlike the First Amendment, it does not specify that Congress only shall make no law infringing this right, just plainly that it shall not be. But the Federal Government is not, by the Amendment itself, delegated any power to enforce this law of non-infringement against State governments which violate it. Absent such delegated authority, and considering its stated purpose, all limits established in the Bill of Rights must be assumed to apply only to the Federal Government.

In Section 8 of Article I, however, we find that the Congress is delegated the power, by the States, to "call forth the militia." The militia is referenced in the Second Amendment as that body which is necessary for the security of a free State. It is that body's membership (i.e., "the People,") who are guaranteed a general non-infringement of the right to keep and bear arms. Therefore, I would contend, the Federal Government is empowered to fully guarantee the non-infringement of this right, it being central to the availability of a militia, the calling forth of which is one of the powers specifically delegated to Congress. Furthermore, since the Second Amendment states flatly that this right shall not be infringed, it is not only within the powers of Congress to defend the liberty of the people to exercise this right, but a Constitutional mandate to do so.

[Gordon Fink]

Why can’t “Congress” in the First Amendment simply mean a legislature instead of the federal Congress? Either way, Article VI still entreats the several states to obey the First Amendment.

No doubt hugh simply wants his Virginia to be legally allowed to infringe the RKBA of the wrong people.

~G. Fink

[hugh damright]

Lousy Court decisions don't trump what the Constitution actually does or does not say.
I would not care to argue otherwise. However, I am not talking about a case or two, but rather about a principle on which the SCOTUS has held firm throughout our entire judicial history. I think at some point a person has to consider that maybe there's something there, and instead of asking what constitutional law can learn from him, he has to ask what he can learn from constitutional law.


since the Second Amendment states flatly that this right shall not be infringed, it is not only within the powers of Congress to defend the liberty of the people to exercise this right, but a Constitutional mandate to do so.
I was with you ... but this part sounds as if the Second Amendment is not limiting the US powers but rather delegating additional powers to them ... maybe it's just semantics ... often when I look up a SCOTUS case I end up on a findlaw/caselaw site which says this about the Second Amendment:

"Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force." http://caselaw.lp.findlaw.com/data/constitution/amendment02/


Why can’t “Congress” in the First Amendment simply mean a legislature instead of the federal Congress? Either way, Article VI still entreats the several states to obey the First Amendment. No doubt hugh simply wants his Virginia to be legally allowed to infringe the RKBA of the wrong people.
I am not the one trying to misconstrue plain English. Maybe "Congress" really means the States? Get with the program. And if all you can do is repeat the tired, pitiful attempt to demonize me by saying that I want to ban guns, then please get off my thread.

[The Real Hawkeye]

Why can’t “Congress” in the First Amendment simply mean a legislature instead of the federal Congress?Because the Bill of Rights is a list of things the Federal Government cannot do. That is clear from the historical record. They were concerned that the Federal Government would start usurping powers that belonged to the States and the people, so they placed these limits on the Federal Government, not on the States, which each had their own Constitutions placing limits on what they could do, and listing their just powers.

[hugh damright]

Obviously Hawkeye wants to ban guns. :D

[carebear]

I haven't addressed whether the Constitution restricts States as well as the Feds. I've been addressing your contention that the people are covered only as amorphous members as their several States, so your citations aren't on point to my issue.

Although, if I may reference Miller quickly before I head out to shop some more, I would note that at no point did the Justices make mention of Miller's individual right to keep and bear a shotgun, it is implicitly taken as a given.

They apparently felt that that particular weapon's suitability for militia use was the only issue; not whether Miller, with no claimed association with his local State organized or unorganized militia as part of his defense, was entitled to a weapon in general. Miller says they can infringe a particular gun within some limits, not the man's right to one in general under any.

That's pretty strong implication that the Supreme's then agreed "militia" covers all individuals, not just signed up members of a formal (or even informal) State or local group. Which is in line with the US Code and historical definitions of unorganized militia.

[The Real Hawkeye]

I was with you ... but this part sounds as if the Second Amendment is not limiting the US powers but rather delegating additional powers to them ....I was asserting that the Federal Government is empowered to fully guarantee the non-infringement of this right because it is central to the availability of a militia, the calling forth of which is one of the powers specifically delegated to Congress in Article I, Section 8. So, the Second Amendment places a limit on the Federal Government (no Federal laws which infringe on the right of the people to keep and bear arms), while Article I, Section 8 empowers the Congress to call forth the militia referenced in the Second Amendment. The supremacy clause of Article VI empowers the Federal Government to prohibit the States from enacting any laws which have the effect of frustrating the powers granted to Congress. If a State, therefore, were to disarm the militia, this would have the effect of nullifying Congress' power to call forth the militia in response to internal crisis. Therefore, the States are not permitted to disarm the militia (i.e., us), and the Federal Government is empowered to prevent them from doing so.

The Constitution is like a contract between two parties. The States constitute one party, and the Federal Government the other. Both sides are authorized to enforce those parts of the contract which are proper to them, just like any other contract.

[The Real Hawkeye]

I haven't addressed whether the Constitution restricts States as well as the Feds. I've been addressing your contention that the people are covered only as amorphous members as their several States, so your citations aren't on point to my issue.

Although, if I may reference Miller quickly before I head out to shop some more, I would note that at no point did the Justices make mention of Miller's individual right to keep and bear a shotgun, it is implicitly taken as a given.

They apparently felt that that particular weapon's suitability for militia use was the only issue; not whether Miller, with no claimed association with his local State organized or unorganized militia as part of his defense, was entitled to a weapon in general. Miller says they can infringe a particular gun within some limits, not the man's right to one in general under any.

That's pretty strong implication that the Supreme's then agreed "militia" covers all individuals, not just signed up members of a formal (or even informal) State or local group. Which is in line with the US Code and historical definitions of unorganized militia.Good point, CareBear.

[hugh damright]

That's pretty strong implication that the Supreme's then agreed "militia" covers all individuals, not just signed up members of a formal (or even informal) State or local group. Which is in line with the US Code and historical definitions of unorganized militia.

I have never meant to suggest that the militia is only those which are in a formal militia. As I said before, I see a State as a body of people, and the militia as that same body of people.

[hugh damright]

I want to point something out here .. the reason I want it to be up to Virginians is to PRESERVE my RKBA ... and because that is the Constitution.

I think sometimes it helps to imagine a simplified model of the US, one which consists of only three States. If I remember correctly, California, Kentucky, and Wyoming are the 1st, 25th, and 50th in population, so let's go with them. And let's say we all are lucky enough to be living in Kentucky. As a Kentuckian in this simplified US, who would you place your trust in, what people would you consider to be your bulwark of liberty? Would it be your fellow Kentuckians, your State ... or would you want the US to be the bulwark of liberty? Before you decide, please allow me to point out that in this simplified model, using the real populations, the US would be 85% Californians.

[The Real Hawkeye]

I want to point something out here .. the reason I want it to be up to Virginians is to PRESERVE my RKBA ... and because that is the Constitution.

I think sometimes it helps to imagine a simplified model of the US, one which consists of only three States. If I remember correctly, California, Kentucky, and Wyoming are the 1st, 25th, and 50th in population, so let's go with them. And let's say we all are lucky enough to be living in Kentucky. As a Kentuckian in this simplified US, who would you place your trust in, what people would you consider to be your bulwark of liberty? Would it be your fellow Kentuckians, your State ... or would you want the US to be the bulwark of liberty? Before you decide, please allow me to point out that in this simplified model, using the real populations, the US would be 85% Californians.Great minds think alike, Hugh.

[bluto]

I'm late to the party here, but one of hugh's original complaints about the interpretation of the Second Amendment was about removing commas and its effect on the interpretation thereof.

The original version, according to the American Law Division of the Library of Congress, "that was adopted by Congress in 1789 and ratified by the States" contained "only one comma, after the word [I]state[I/] which, by the way, was not uppercase in the original."

The best analysis of the Amendment's meaning according to its syntax (which also addresses the ACLU's interpretation) is short and a must read. It can be found here:

http://webpages.charter.net/mad_prophet/articles/rkba/other/sr000001.html

I browsed this thread and didn't see a reference, but I may have missed it. If so, I apologize:


Reading the Second Amendment

By Sheldon Richman

"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."
--Second Amendment

Is this sentence so hard to understand? Apparently so. Even some of its defenders don’t like how it is worded because it allegedly breeds misunderstanding.

But the Second Amendment of the Bill of Rights is indeed a well-crafted sentence. By that I mean that its syntax permits only one reasonable interpretation of the author’s meaning, namely, that the people’s individual right to be armed ought to be respected and that the resulting armed populace will be secure against tyranny, invasion, and crime. Someone completely ignorant of the eighteenth-century American political debates but familiar with the English language should be able to make out the meaning easily.

My concern is not to demonstrate that what the amendment says is good policy, only that it says what it says. No other fair reading is possible.

The Competing Interpretation

Before proceeding, let’s understand the competing interpretation. As the American Civil Liberties Union of Southern California put it, "The original intent of the Second Amendment was to protect the right of states to maintain militias." Dennis Henigan of Handgun Control, Inc., says the amendment is "about the distribution of military power in a society between the federal government and the states. That's all they [the Framers] were taling about." As he it elsewhere, "The Second Amendment guaranteed the right of the people to be armed as part of a 'well regulated' militia, ensuring that the arming of the state militia not depend on the whim of the central government" [emphasis added].

This interpretation is diametrically opposed to the view that says the amendment affirms the right of private individuals to have firearms. The ACLU, HCI, and others reject this, arguing that the amendment only affirms the right of the states to maintain militias or, today, the National Guard. These competing interpretations can't both be right.

The first problem with the militia interpretation is that the amendment speaks of a right and, or course, the amendment appears in the Bill of Rights. (Powers with respect to the militia are enumerated in Articles I and II of the Constitution.) No other amendment of the original ten speaks of the States having rights. Nowhere, moreover, are rights recognized for government (which in the Framers' view is the servant) but denied to the people (the masters). Henigan and company are in the untenable position of arguing that while the Framers used the term "the people" to mean individuals in the First (the right to assemble), Fourth (the right to be secure in person, houses, papers, and effects), Ninth (unenumerated rights), and Tenth (reserved powers) Amendments, they suddenly used the same term to mean "the States" in the Second. That makes no sense.

More important, the diction and syntax of the amendment contradict Henigan's argument. If the Framers meant to say that States have a right to organized militias or that only people who are members of the militia have a right to guns, why would they say, "the right of the people to keep and bear arms shall not be infringed"? The Framers were intelligent men with a good grasp of the language. As we can see from the Tenth Amendment, they were capable of saying "States" when they meant States and "people" when they meant people. They could have said, "The right of the States to organize and arm militias shall not be infringed," though that would have contradicted Article I, Section 8, which delegated that power to Congress. (Roger Sherman proposed such language, but it was rejected.) Or, they could have written, "The right of members of the state militia to keep and bear arms shall not be infringed," though that would have contradicted Article I, Section 9, which forbids the States to "keep Troops…in time of Peace." They didn't write it that way. They wrote "the people," without qualification. (The Supreme Court said in the 1990 case U.S. v. Verdug-Urquidez that "the people" has the same meaning--individuals--throughout the Bill of Rights.)

But say the gun controllers, what of that opening phrase, "A well regulated militia being necessary to the security of a free state"? Here's where we have to do some syntactical analysis. James Madison's original draft reversed the order of the amendment: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country." Perhaps this version makes Madison's thought more clear. His sentence implies that the way to achieve the well-armed and well-regulated militia that is necessary to the security of a free state is to recognize the right of people to own guns. In other words, without individual freedom to own and carry arms, there can be no militia. As to the term "well regulated," it does not refer to government regulation. This can be seen in Federalist 29, where Alexander Hamilton wrote that a militia acquired the degree of perfection which would entitle them to the character of a well regulated militia" by going "through military exercises and evolutions, as often as might be necessary."

What the Syntax Tells Us

How do we know that the "well regulated militia" is defined in terms of an armed populace and not vice versa? The syntax of the sentence tells use. Madison and his colleagues in the House of Representatives chose to put the militia reference into a dependant phrase. They picked the weakest possible construction by using the participle "being" instead of writing, say, "Since a well regulated militia is necessary…" Their syntax keeps the militia idea from stealing the thunder of what is to come later in the sentence. Moreover, the weak form indicates that the need for a militia was offered not as a reason (or condition) for prohibiting infringement of the stated right but rather as the reason for enumerating the right in the Bill of Rights. (It could have been left implicit in the Ninth Amendment, which affirms unenumerated rights.)

All of this indicates the highly dependent and secondary status of the phrase. Dependent on what? The main, independent clause, which emphatically and unequivocally declares that the people's right to have guns "shall not be infringed." (Note: the amendment presupposes the right; it doesn't grant it.)

Let's go at this from another direction. Imagine that a Borkian inkblot covers the word "well regulated militia." Al we have is: "A [inkblot] being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." To make an intelligent guess about the obscured words, we would have to reason from the independent phrase. We would know intuitively that the missing words must be consistent with the people having the right to keep and bear arms. In fact, anything else would be patently ridiculous. Try this: "A well-regulated professional standing arming (or National Guard) being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." That sentence would bewilder any honest reader. He'd ask why such unlike elements were combined into one sentence. It makes no sense. It's a non sequitur.

Imagine the deliberations of the Committee of Eleven, the group of House members to which Madison's proposed bill of rights was referred. Assume that one member says, "We should have an amendment addressing the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the nation government to respect the right of the State to organize and arm militias." "No," replies another member. "The amendment should reflect the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the government to respect the people's right to bear arms." If both members were told to turn their declarative sentences into the imperative form appropriate to a bill of rights, which one would have come up with the language that came the Second Amendment? The question answers itself.

The Committee of Eleven reversed the elements of Madison’s amendment. But that, of course, did not change the meaning, only the emphasis. In fact, the reversal made it a better sentence for the Bill of Rights. As adopted, the amendment begins by quickly putting on record the most important reason for its inclusion into the Bill of Rights but without dwelling on the matter; that’s what the weak principle, "being," accomplishes. The sentence then moves on to the main event: "the right of the people to keep and bear arms." The framers correctly intuited that in a Bill of Rights, the last thing the reader should have ringing in his mind’s ear is the absolute prohibition on infringement of the natural right to own guns.

I am not suggesting that the Framers said explicitly that the militia reference should go into a dependent participial phrase so that future readers would know that it takes it meaning from the independent clause. They didn’t need to do that. To be fluent in English means that one intuits the correct syntax for the occasion and purpose at hand. Much knowledge of a language is tacit. We have to assume that the Framers knew what they were saying.

What Language Experts Say

This analysis is seconded by two professional grammarians and usage experts. In 1991, author J. Neil Schulman submitted the text of the Second Amendment to A. C. Brocki, editorial coordinator of the Office of Instruction of the Lost Angeles Unified School District and a former senior editor for Houghton Mifflin, and Roy Copperud, now deceased, the author of several well-regarded usage books and a member of the American Heritage Dictionary usage panel. Brocki and Copperud told Schulman that the right recognized in the amendment is unconditional and unrestricted as to who possesses it.

Asked if the amendment could be interpreted to mean that only the militia had the right, Brocki replied, "No, I can’t see that." According to Copperud, "The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people." As to the relationship of militias to the people, Schulman paraphrased Brocki as saying, "The sentence means that the people are the militia, and that the people have the right which is mentioned." On this point, Copperud, who was sympathetic to gun control, nevertheless said, "The right to keep and bear arms is asserted as essential for maintaining the militia."

It is also important to realize that, as a matter of logic, the opening phrase does not limit the main clause. As the legal scholar and philosopher Stephen Halbrook had argued, although part one of the amendment implies part two, it does not follow that if part one doesn’t obtain, part two is null and void. The sentence "The earth being flat, the right of the people to avoid ocean travel shall not be infringed" does not imply that if the earth is round, people may be compelled to sail. The Framers would not have implied that a right can properly be infringed; to call something a right is to say no infringement is proper. As another philosopher and legal scholar, Roger Pilon, has written, the amendment implies that the need for a militia is a sufficient but not a necessary condition for forbidding infringement of the right to have firearms. The sentence also tells us that an armed populace is a necessary condition for a well-regulated milita.

Superfluous Commas

A word about the punctuation: most reproductions of the Second Amendment contain a plethora of commas: "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." But according to the American Law Division of the Library of Congress, this is not how the amendment was punctuated in the version adopted by Congress in 1789 and ratified by the States. That version contained only one comma, after the word state which, by the way, was not uppercase in the original, indicating a generic political entity as opposed to the particular States of the Union. If the superfluous commas have confused people about the amendment’s meaning, that cause of confusion is now removed.

One need not resort to historic materials to interpret the Second Amendment, because it is all there in the text. Nevertheless, it is appropriate to point out that history supports, and in no way contradicts, that reading. Gun ownership was ubiquitous in eighteenth-century America, and the Founding Fathers repeatedly acknowledged the importance of an armed citizenry. They also stated over and over that the militia is, as George Mason, the acknowledged father of the Bill of Rights, put it, "the whole people." Madison himself, in Federalist 46, sought to assuage the fears of the American people during the ratification debate by noting that an abusive standing army "would be opposed [by] a militia amounting to near half a million citizens with arms in their hands." That would have comprised the entire free adult male population at the time. There’s no question that at the center of the American people’s tacit ideology was the principle that, ultimately, they could not delegate the right of self-defense to anyone else and thus they were responsible for their own safety.

Perhaps the deterioration of American education is illustrated by the high correlation between the number of years a person has attended school and his inability to understand the words "the right of the people to keep and bear arms shall not be infringed." It is more likely, though, that those who interpret the Second Amendment to preclude an individual right to own guns are driven by their own political agenda. Whichever the case, they do themselves no credit when they tell us that a simple, elegant, sentence means the opposite of what it clearly says.

[hugh damright]

I was asserting that the Federal Government is empowered to fully guarantee the non-infringement of this right because it is central to the availability of a militia

OK, I'm with you ... but what individual right is central to the availability of miltia? For instance, I would say that if a State banned CCW, banned .25 pocket pistols, and banned bb guns, that it would not impact the militia. If I stretch it as far as it will go without breaking, a State might ban every gun but one model of semi-auto rifle and require people to keep it locked up with the ammo stored separately. Ugly as it is, my point is that the people could still each unlock their one rifle and load it with their separately stored ammo and ... revolt.

In my opinion, the US should not accept a State banning semi-auto rifles, "assault weapons", because it seems clear to me that these are militia type weapons. But instead of the US keeping the States from banning these weapons, the US did it for them. Now that the US ban expired, I see the proper context restored, where if Californians want to ban guns then they ban their own guns, and Virginians are not impacted.

[The Real Hawkeye]

OK, I'm with you ... but what individual right is central to the availability of miltia? For instance, I would say that if a State banned CCW, banned .25 pocket pistols, and banned bb guns, that it would not impact the militia. If I stretch it as far as it will go without breaking, a State might ban every gun but one model of semi-auto rifle and require people to keep it locked up with the ammo stored separately. Ugly as it is, my point is that the people could still each unlock their one rifle and load it with their separately stored ammo and ... revolt.

In my opinion, the US should not accept a State banning semi-auto rifles, "assault weapons", because it seems clear to me that these are militia type weapons. But instead of the US keeping the States from banning these weapons, the US did it for them. Now that the US ban expired, I see the proper context restored, where if Californians want to ban guns then they ban their own guns, and Virginians are not impacted.The Second Amendment does not say only that the right of the people to keep certain arms shall not be infringed. Since there is a nexus between this right guaranteed in the Second Amendment, and the power of Congress to call forth the militia, I think that the Federal empowerment goes all the way to defending the full right as described in the Amendment. Naturally, you and I both know that the Federal Government will not do that. We have enough trouble keeping them from outlawing all our guns. So, like you, I see our best hope being at the State level, where we can have more of a direct influence on our governance, while attempting to hold the Federal Government to its intended limits. It is the nature of Federalism that some States will be more liberal regarding its citizen's rights, and some will be more restrictive, but that is almost completely up the citizens of their States, since the Federal Government was not designed to be a guarantor of the free exercise of individual rights. In fact, the Founders felt that the biggest threat to our continued liberty would come from the Federal Government, which is why they tied it up in the chains of the Constitution and left most internal powers to the States, and from what I have observed, I tend to agree with them.

[carebear]

Yep,

If we have to have laws, better they be at the lower levels of governance where we as individuals can more easily control their creation and enforcement (and removal if necessary).

[hugh damright]

The original version, according to the American Law Division of the Library of Congress, "that was adopted by Congress in 1789 and ratified by the States" contained "only one comma, after the word state which, by the way, was not uppercase in the original."

Can this be seen online? I found a website where I could search the library of congress, and what I found was yet another version of the Second Amendment, with one comma, but a capital "S" for "State". http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=144

[RealGun]

States are too corrupt historically to be entrusted with anyone's rights. The tyranny of the local majority is not to be trusted either. The federal government and its Constitution serves as the higher power to keep the "United" in the US. At least we have an appellate process. That is actually how things work, imperfect process though it might be, despite someone else's little fantasy land description, which serves mainly to justify the Confederacy.

[antsi]

I think sometimes it helps to imagine a simplified model of the US, one which consists of only three States. .

I share your concerns and I like your goals here, but I don't think as a practical matter it would work out the way you think. Even if KY had a clearly worded individual RKBA in KY's state constitution, I doubt that would stop the CA-dominated feds from trampling all over it. They don't hesitate to trample all over the US 2nd Ammendment, so why would they balk at passing federal restrictions over the KY state constitution?

These days, it seems the feds can do pretty much anything they want to the states. I'm not saying it should be like that, but it is like that. An example is the Assault Weapons Ban. Many states have very clearly worded RKBA, but that didn't stop the feds from cramming the NFA and AWB down their throats.

As an Indiana resident, I'd love to see my state's legislation trump the feds especially on RKBA. But that's not the way our political dynamics are working these days.

[The Real Hawkeye]

I share your concerns and I like your goals here, but I don't think as a practical matter it would work out the way you think. Even if KY had a clearly worded individual RKBA in KY's state constitution, I doubt that would stop the CA-dominated feds from trampling all over it. They don't hesitate to trample all over the US 2nd Ammendment, so why would they balk at passing federal restrictions over the KY state constitution?

These days, it seems the feds can do pretty much anything they want to the states. I'm not saying it should be like that, but it is like that. An example is the Assault Weapons Ban. Many states have very clearly worded RKBA, but that didn't stop the feds from cramming the NFA and AWB down their throats.

As an Indiana resident, I'd love to see my state's legislation trump the feds especially on RKBA. But that's not the way our political dynamics are working these days.Interesting points. I seem to remember reading a Supreme Court case once which ruled that States were within their just powers to provide their citizens with a greater degree of rights protection than the Federal Government, but not a lessor degree. I believe the case involved Fourth Amendment protections. You have to wonder why this does not seem to apply to firearms rights.

[The Real Hawkeye]

States are too corrupt historically to be entrusted with anyone's rights. The tyranny of the local majority is not to be trusted either. The federal government and its Constitution serves as the higher power to keep the "United" in the US. At least we have an appellate process. That is actually how things work, imperfect process though it might be, despite someone else's little fantasy-land description, which serves mainly to justify the Confederacy.Why so hostile, my friend? You can disagree with someone without invectives.

[Art Eatman]

The BOR is a PACKAGE of restraints on the central government, aka the State. It says so in the Preamble.

So, answer me this: How can a package of restraints upon the State at the same time be restraints upon the populace? How?

That notion of any duality of restraint seems to me to be dumber'n dirt. It's an interpretation that's miles outside the personal writings/discussions of meaning by those who were alive and involved at the time of the writing of the BOR.

ALL the Amendments speak to the rights of individuals. I again reference the 1992 Urriquez-Verdugo SCOTUS comments on that subject.

Art

[Dex Sinister]

The idea that the Founders, who were extremely cognizent of the principles of the English Glorious Revolution of 1689, somehow failed to regard the right mentioned in the 2nd amendment as an individual right is just a little bit silly.
Oh please...half those guys were slave owners. Please don’t elevate them to some special level of enlightenment on rights and government-forming, because they had neither.
Lord Acton (http://en.wikipedia.org/wiki/Lord_Acton) makes the claim that there has been only one revolution in all of history which was fought solely to achieve an idea. The revolution: Ours. The Idea: Freedom.

Now, I am certainly aware that they had flaws. I'm also aware that at that point in history, we seem to have chanced to find a combination of brilliant men who led the US into a system of government of a sort that had never before existed, based on an idea that had never before had the sort of promenence that they gave it.

It sounds as if you are judging the Founders through the lens of modern morality. It's a subtle trap.

The generation that participated in the American revolution was the most free and lightest taxed population in the entire world of their time. And yet, they went to war with the greatest military power in the world over the ideological issue of freedom - and won. Sorry, I have to conclude that they earned a bit of historical respect; even the ones who owned slaves.


It is worth noting that the Right to Bear Arms, contained therein, was considered an individual right possessed by all subjects of the Crown by the English in the 1700's.
and what of that “as allowed by law” at the end?
Yes, what of it? The fact that (as all English rights are, given their nature as exceptions to absolute government power) the right was limited says nothing about the fact that it was individually held by individual Englishmen [who were members of the Protestant religion, and as determined to be suitable to their station].

You appear to have missed the point, which was not directed at you anyway. My point was, the founders of our country were Englishmen, possessing English rights, one of which was to have arms for their defence suitable to their conditions and as allowed by law.

So these Englishmen, possessing this right, start a revolution because they aren't satified with even the minimal and reasonable restraints that they have under the English Crown, and fight a war to get more freedom. Having achieved this, they sit down and write a constitution and a Bill of Rights.

Now: Everybody who really thinks that a bunch of people who just fought a war for greater freedom sat down and wrote an amendment to the Constitution that talked about the individual RTBA that they possessed as Englishmen but that these same people actually meant to protect/reconfirm State's rights raise your hand.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[Dex Sinister]

Which simply takes you into the wilderness of 14th amendment jurisprudence
My intent here is to promote an understanding of, and respect for, free government. The 14th "Amendment" is a reconstruction amendment, intended to reconstruct our free government into something else.

By the way, I certainly don't mind playing the "assume arguendo" game, but may I inquire as to exactly what relevance you think this discussion has to the here & now? Sure, if you wish to argue pre-14th jurisprudence one can do that all week - but you seem to be attempting to draw some relevance to modern day out of your interpretation of the 2nd.

At which point, I think you've departed from your argument assumption such that it is no longer relevant.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[hugh damright]

They don't hesitate to trample all over the US 2nd Amendment, so why would they balk at passing federal restrictions over the KY state constitution?

Although I think the simplified model of the US helps illustrate certain principles, I cannot imagine how the Framers would have formed a Union of three States with Californians being 85% of the population. I assume they would have come up with a different form of government than what we have ... actually I tend to think that they would have just formed the State of California rather than the US in the first place, or else California might have divided into smaller States to make an American Confederacy feasible.

It might seem like the majority will always, in the end, conquer the minority ... but I believe that there is another side to our nature which checks this tendency. I believe that people form a collective for their common good, and that a collective has to be some certain size to provide the best benefit, and I believe that despite generations of reconstruction propaganda, that the natural American instinct, is that we want States. The State is the proper size collective for us here in our situation. Not everyone thinks so, and the people of one particular region tend to have a different instinct ... but I cling to the belief that enough people believe in their State to keep the American instinct alive. I see it here in some of you.

If the States are consolidated into one sovereignty, if we are all one people, then we will not be able to hold onto free government ... Madison said "the obvious tendency and inevitable consequence ... would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy". Jefferson said the same thing. Robert E. Lee said there was no doubt but that the resulting US would be too aggressive in foreign affairs and too despotic with domestic affairs.

At some point, the thing that can ensure the separation of State and federal powers, the thing that can ensure State sovereignty, is what the Declaration of Independence called "the laws of Nature and Nature's God" - the right of one people to be free and independent from another.

[hugh damright]

Sure, if you wish to argue pre-14th jurisprudence one can do that all week - but you seem to be attempting to draw some relevance to modern day out of your interpretation of the 2nd.

Under constitutional law, the 2nd Amendment still, today, here and now, does not limit the States. It has not been "incorporated". The incorporation doctrine is real and has modern relevance. There is no point in pretending that it doesn't exist. Besides, the cases I quoted came AFTER the 14th, so they have some relevance in post-14th jurisprudence. US v Cruikshank, Miller v Texas, Presser v Illinois, US v Miller ... they all came after the 14th.

[Gordon Fink]

And if all you can do is repeat the tired, pitiful attempt to demonize me by saying that I want to ban guns, then please get off my thread.

I never said you wanted to ban guns, but you seem to want that power reserved for your Virginia. However, your state must still legally abide by the Second Amendment in accordance with Article VI. That said, I fully recognize that neither the federal government nor the government of Virginia abide by that amendment.

~G. Fink

[Gordon Fink]

Because the Bill of Rights is a list of things the Federal Government cannot do. That is clear from the historical record. They were concerned that the Federal Government would start usurping powers that belonged to the States and the people, so they placed these limits on the Federal Government, not on the States.…

Then explain away Article VI.

~G. Fink

[Dex Sinister]

Sure, if you wish to argue pre-14th jurisprudence one can do that all week - but you seem to be attempting to draw some relevance to modern day out of your interpretation of the 2nd.
Under constitutional law, the 2nd Amendment still, today, here and now, does not limit the States. It has not been "incorporated". The incorporation doctrine is real and has modern relevance. There is no point in pretending that it doesn't exist.

Yes, I know. That wasn't my point. One can't just shift from delicate interpretive analysis to "case law says" whenever one isn't getting one's way.

You appear - or appeared when I first noted that your analytical "conclusions" lead to a "under the 2nd, States can do mostly what they like, unmolested by the federal government"-type conclusion - to be ignoring the fact that as soon as one finishes such an argument, given the existence of the 14th, one must them start anew with a debate of what the correct effect of the 14th amendment would be on "libertarian enforcement" of the 2nd against the states.

You said you wanted to keep the discussion pure, I said okay and didn't press the issue - but you appear to keep coming to here & now conclusions about the meaning of the 2nd. My contention is that you can't have it both ways: Either you have to keep the discussion on a "maybe the founders meant thus-and-such," level - precluding dragging the issue into the here & now, or, you have to continue on and deal with the proper interpretation of the 14th.

The fact that the Supremes have avoided incorporating the 2nd says absolutely nothing about the validity thereof. The Slaughter-House Cases nulifying the 14th's powers against the states were pathetic from a legal philosophy standpoint - right up there in intelligence with Dred Scott. And of course Dred Scott was one of the reasons the 14th was written in the first place. Corfield v. Coryell (the Article 4, Section 2, Priviliges and Immunities case) was a piece of work as well.

The legislative intent of the 14th was, at a minimum, to apply the first 8 amendments against the states. We know specifically that the authors of the 14th intended to protect 2nd amendment rights (at least of blacks in the South) against the States because that was one of the major issues that they debated.

I have nothing particularly against the Incorporation Doctrine, except that it is a prime example of our inability to get past the wonderful fiction that some SC decisions are just plain stupid, but even if we simply go with incorporation, there is no philosophical reason why the 2nd isn't as worthy for inclusion as any of the others that have been re-adopted piecemeal.

And then, there one is again with the Federal government protecting, in libertarian fashion, the citizens of states against state laws.

Besides, the cases I quoted came AFTER the 14th, so they have some relevance in post-14th jurisprudence. US v Cruikshank, Miller v Texas, Presser v Illinois, US v Miller ... they all came after the 14th.
US v Miller is not really a very comfortable decision in terms of gun restrictions, if one actually reads the decision, as opposed to reading later interpretations of it. That is even assuming that one should attempt to draw some valid philosophical conclusion about the doctrines raised in a case where one side was not represented, nor presented any arguments, and where the US Attorney, Clinton R. Barry, indirectly lied to the Supreme Court in presenting his argument.

As you likely recall, Barry argued that "The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia." That was the government's argument - as indeed it had to be, since Miller was not represented and no briefs were filed on Miller's side.

Then Barry argued that the particular shotgun in question, serial number 76230 had never been used in a militia. Which is, of course, hardly the point, given the previous argument. Shotguns in general are of course perfectly appropriate for use in an organized militia, as they've been used in every war in history since their developement.

There are things that are common enough for judges to take judicial notice of [stuff that judges can "take for granted" in a case to avoid needing testimony and proof in court to establish, for non-lawyers] and there are things that are not. The court ruled that the question of whether shotguns were an appropriate militia weapon was not one that it could take judicial notice of.

As a matter of legal philosophy, I don't really put much stock in cases where the government has to obscure the truth in order to win, when the other side isn't even there.

You might also want to remember the district court's decision in Miller was framed as a question of federal police powers:
The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved for the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution...."
That's rather important, from a philosophical viewpoint, since the Supremes have made it rather clear of late that federal police powers are the one thing that they're willing to admit that the federal government doesn't possess.

Miller, taken as written, merely establishes iron-clad protection of all military-type weapons appropriate for use in an organized militia.

US v Cruikshank
Not a comfortable anti-gun-rights case either - from a legal philosophy viewpoint.

First, it's (at least theoretically) a "violation of rights by other citizens, not State action" case: As the Supremes point out, in 1875 there were no federal police powers, so it's a State venue when other citizens do things to you. Somehow I doubt that if a white terror organization murdered 100 blacks today that the federal courts would fail to be involved, however.

Even if one buys the "In 1875 the federal government just couldn't do anything about the murder of 100 blacks, sorry," argument, one is still left with The right...specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

Given that this was tried in 1875, two years after the Slaughterhouse cases, the question of the 14th didn't come up - as the Supremes were busy pretending that the 14th didn't exist. But of course that still leaves the rather embarassing "The second amendment declares that shall not be infringed; but this, as has been seen, means no more than that shall not be infringed by Congress."

Oddly enough, if it means no more than "bearing arms for a lawful purpose shall not be infringed by Congress" it still [b]means that "bearing arms for a lawful purpose shall not be infringed by Congress."

Just for fun, if you put them together you get: "The Second Amendment protects...the ownership of military-type weapons appropriate for use in an organized militia, and this shall not be infringed by Congress."

Presser v Illinois
Did you mean this?
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

I thought that was what Hawkeye had been telling you over and over.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[The Real Hawkeye]

Then explain away Article VI.

~G. FinkArticle VI deals with powers constitutionally delegated to the Federal Government. I was speaking of Federal usurpations of power, i.e., the assumption of powers not delegated.

[The Real Hawkeye]

Yes, I know. That wasn't my point. One can't just shift from delicate interpretive analysis to "case law says" whenever one isn't getting one's way.

You appear - or appeared when I first noted that your analytical "conclusions" lead to a "under the 2nd, States can do mostly what they like, unmolested by the federal government"-type conclusion - to be ignoring the fact that as soon as one finishes such an argument, given the existence of the 14th, one must them start anew with a debate of what the correct effect of the 14th amendment would be on "libertarian enforcement" of the 2nd against the states.

You said you wanted to keep the discussion pure, I said okay and didn't press the issue - but you appear to keep coming to here & now conclusions about the meaning of the 2nd. My contention is that you can't have it both ways: Either you have to keep the discussion on a "maybe the founders meant thus-and-such," level - precluding dragging the issue into the here & now, or, you have to continue on and deal with the proper interpretation of the 14th.

The fact that the Supremes have avoided incorporating the 2nd says absolutely nothing about the validity thereof. The Slaughter-House Cases nulifying the 14th's powers against the states were pathetic from a legal philosophy standpoint - right up there in intelligence with Dred Scott. And of course Dred Scott was one of the reasons the 14th was written in the first place. Corfield v. Coryell (the Article 4, Section 2, Priviliges and Immunities case) was a piece of work as well.

The legislative intent of the 14th was, at a minimum, to apply the first 8 amendments against the states. We know specifically that the authors of the 14th intended to protect 2nd amendment rights (at least of blacks in the South) against the States because that was one of the major issues that they debated.

I have nothing particularly against the Incorporation Doctrine, except that it is a prime example of our inability to get past the wonderful fiction that some SC decisions are just plain stupid, but even if we simply go with incorporation, there is no philosophical reason why the 2nd isn't as worthy for inclusion as any of the others that have been re-adopted piecemeal.

And then, there one is again with the Federal government protecting, in libertarian fashion, the citizens of states against state laws.


US v Miller is not really a very comfortable decision in terms of gun restrictions, if one actually reads the decision, as opposed to reading later interpretations of it. That is even assuming that one should attempt to draw some valid philosophical conclusion about the doctrines raised in a case where one side was not represented, nor presented any arguments, and where the US Attorney, Clinton R. Barry, indirectly lied to the Supreme Court in presenting his argument.

As you likely recall, Barry argued that "The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia." That was the government's argument - as indeed it had to be, since Miller was not represented and no briefs were filed on Miller's side.

Then Barry argued that the particular shotgun in question, serial number 76230 had never been used in a militia. Which is, of course, hardly the point, given the previous argument. Shotguns in general are of course perfectly appropriate for use in an organized militia, as they've been used in every war in history since their developement.

There are things that are common enough for judges to take judicial notice of [stuff that judges can "take for granted" in a case to avoid needing testimony and proof in court to establish, for non-lawyers] and there are things that are not. The court ruled that the question of whether shotguns were an appropriate militia weapon was not one that it could take judicial notice of.

As a matter of legal philosophy, I don't really put much stock in cases where the government has to obscure the truth in order to win, when the other side isn't even there.

You might also want to remember the district court's decision in Miller was framed as a question of federal police powers:

That's rather important, from a philosophical viewpoint, since the Supremes have made it rather clear of late that federal police powers are the one thing that they're willing to admit that the federal government doesn't possess.

Miller, taken as written, merely establishes iron-clad protection of all military-type weapons appropriate for use in an organized militia.


Not a comfortable anti-gun-rights case either - from a legal philosophy viewpoint.

First, it's (at least theoretically) a "violation of rights by other citizens, not State action" case: As the Supremes point out, in 1875 there were no federal police powers, so it's a State venue when other citizens do things to you. Somehow I doubt that if a white terror organization murdered 100 blacks today that the federal courts would fail to be involved, however.

Even if one buys the "In 1875 the federal government just couldn't do anything about the murder of 100 blacks, sorry," argument, one is still left with

Given that this was tried in 1875, two years after the Slaughterhouse cases, the question of the 14th didn't come up - as the Supremes were busy pretending that the 14th didn't exist. But of course that still leaves the rather embarassing "The second amendment declares that shall not be infringed; but this, as has been seen, means no more than that shall not be infringed by Congress."

Oddly enough, if it means no more than "bearing arms for a lawful purpose shall not be infringed by Congress" it still [b]means that "bearing arms for a lawful purpose shall not be infringed by Congress."

Just for fun, if you put them together you get: "The Second Amendment protects...the ownership of military-type weapons appropriate for use in an organized militia, and this shall not be infringed by Congress."


Did you mean this?


I thought that was what Hawkeye had been telling you over and over.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gifGood analysis, Dex. One minor point of possible disagreement, though, regarding the following passage:Given that this was tried in 1875, two years after the Slaughterhouse cases, the question of the Fourteenth didn't come up - as the Supremes were busy pretending that the 14th didn't exist.In my considered opinion, the early post-Fourteenth Amendment decisions were actually the only correct decisions the SCOTUS has made regarding the Fourteenth Amendment, and its effects on federalism as envisioned by the Founders. The incorporation doctrine was something that was developed only later, as a pretext for providing the Federal Government with powers not delegated to it, essentially turning federalism on its head, so as to get its way in certain State matters. I am not saying that the Fourteenth Amendment did not delegate new powers to the Federal Government, only that it did not have the legal effect of converting the Bill of Rights into a series of restrictions on the States, enforceable by the Federal Government, which is essentially what incorporation doctrine pretends.

[Graystar]

If you look at what might be called the preamble text of the 1689 Bill of Rights, (http://www.yale.edu/lawweb/avalon/england.htm) it is easy to see the parallel between both the Declaration, and our Bill of Rights.If you compare the entire documents side by side, you'll see that there are far, far more differences than similarities. And the similarities that are there are there simply because of similar subject matter. When read and understood, the two documents not only have different messages (which is expected) but different organization and word structure. That the two documents present lists is about all I can see that is similar.

Most germane to this discussion: The idea that the Founders, who were extremely cognizent of the principles of the English Glorious Revolution of 1689, somehow failed to regard the right mentioned in the 2nd amendment as an individual right is just a little bit silly.I never said they didn't. What I'm saying is that the concern was more practical than based on theoretical considerations of the rights of individuals.

As I recall, previous revision of the amendment made mention of individuals, but those were removed. I wonder why...

[Graystar]

Now: Everybody who really thinks that a bunch of people who just fought a war for greater freedom sat down and wrote an amendment to the Constitution that talked about the individual RTBA that they possessed as Englishmen but that these same people actually meant to protect/reconfirm State's rights raise your hand.I'm not saying that's what they thought, and I'm not saying that's what they didn't think. *My* point is that the considerations given were based far more on practicalities than on aloof theories of rights and freedoms. As you say, they had just fought a war, and they fought that war because they were suffering the very violations against rights and freedoms that are outlined in the Bill of Rights.

[RealGun]

I am not saying that the Fourteenth Amendment did not delegate new powers to the Federal Government, only that it did not have the legal effect of converting the Bill of Rights into a series of restrictions on the States, enforceable by the Federal Government, which is essentially what incorporation doctrine pretends.

That isn't correct. The 14th Amendment forced States to be part of a whole and consistent with it.

[The Real Hawkeye]

That isn't correct. The 14th Amendment forced States to be part of a whole and consistent with it.I disagree with your analysis of the incorporation doctrine. The States were already part of the whole, in accordance with the principles of federalism that were incorporated into the Constitution by the Founders. The effect of incorporation doctrine was to transfer restrictions meant for the Federal Government to State governments.

The primary concern of the Founders was that the Federal Government would assume powers proper to States, i.e., powers over the internal affairs of States. They conceived the Constitution and the Bill of Rights with this concern foremost in their minds. You cannot just ignore Federalist No. 45, as if it does not represent the intentions and understanding of the Founders with regard to the Constitution visa vis federalism, viz.The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. -Madison

[RealGun]

The effect of incorporation doctrine was to transfer restrictions meant for the Federal Government to State governments.

I don't disagree with that. You are saying the same thing, sort of a violent agreement.

What I would take issue with is ignoring the Civil War and its effect on State powers. States were too corrupt and self serving, undermining the welfare of the Union. You just can't look back to FF sentiments and ignore the Civil War. I don't mean to justify exactly how the secessionists were brought back into the fold, or how the Constitution was used, abused, or ignored in the process, but one cannot be describing reality by ignoring the War Between The States and its aftermath.

[hugh damright]

US v Miller is not really a very comfortable decision ... US v Cruikshank is not a comfortable anti-gun-rights case eitherAm I supposed to care about whether or not you are "comfortable" with constitutional law? I am not looking for "comfortable" cases or "anti-gun-rights" cases, I am just looking for cases. Go find one that says the Second Amendment limits the States, or give it up.

Re: Presser v Illinois, did you mean the part about "it is undoubtedly true that all citizens capable of bearing arms constitute the reserved militia ...the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." ... I thought that was what Hawkeye had been telling you over and over.Mister, you need to turn on another light or something, because you continue to box with shadows. I quoted that part about Presser over fifty posts ago. I think the issue here is that you "are not comfortable" with Presser saying:

But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

You just can't look back to FF sentiments and ignore the Civil War. I don't mean to justify exactly how the secessionists were brought back into the fold, or how the Constitution was used, abused, or ignored in the process, but one cannot be describing reality by ignoring the War Between The States and its aftermath.
I do not see how I am ignoring the aftermath by recognizing the incorporation doctrine. Heck ... the incorporation doctrine *is* the aftermath, and I am not the one ignoring it.

Maybe you think the SCOTUS is ignoring the aftermath, or that constitutional law has it all wrong. Frankly, it seems to me like some people are trying to ignore the FF sentiments, and our body of constitutional law, and pretend that the US is some kind of monarchy founded by King Lincoln.

[RealGun]

Maybe you think the SCOTUS is ignoring the aftermath, or that constitutional law has it all wrong. Frankly, it seems to me like some people are trying to ignore the FF sentiments, and our body of constitutional law, and pretend that the US is some kind of monarchy founded by King Lincoln.

I never responded to you directly and am not pleased about being in your sights. You sound more and more like a troll. That's up to you to back off a notch and have a calm debate.

In response, I certainly do think the SCOTUS has been ignoring the aftermath, in that they have been rigorous about keeping guns out of the hands of blacks, very careful to avoid direct confrontations with the Second Amendment. The 14A would loom over any such case, obliging States to acknowledge all provisions of the US BoR.

Actually I prefer to ignore some of our "body of law", since some of the rulings are well known to be ludicrous.

I don't know about King Lincoln, but the States ratified the 14th Amendment, along with some other changes which addressed the War or its results.

[geekWithA.45]

Hugh,

I don't believe Dex was refering to his own comfort with these decisions, I read him to mean that these decisions provided little comfort to those who sought to use them for anti gun ends.

You keep intermixing constitutional LAW with constitutional JURISPRUDENCE, deeming them to be one thing.

They are not.

There is a difference, and it is important. While constitutional jurisprudence has a profound practical impact on the current application of the law, it is not the law itself.

The map is not the territory.

To put it another way, for example, the Laws of Mathematics state that 2+2=4. The assertion of the National Academy of Math that 2+2=5 does not make it so, even if schools started grading tests such that 4 is deemed to be the wrong answer. Practical application does not a truth make.


FURTHERMORE,

You keep waiting for someone to say, "I can't find a SCOTUS case that limits the State on 2A grounds", so you can jump up and down shouting "AHA! 2A's RKBA is a the sole and exclusive property of a Free State!"

Your premise that 2A protects the RKBA of the state EXCLUSIVE of the individual DOES NOT INNEVITABLY FOLLOW the supreme court's refusal to apply 2A to the States.

The state of constitutional jurisprudence is such that the matter is unsettled, not foreclosed.


We do, however, find many examples of State supreme courts overturning State legislation, finding in favor of individuals on...wait for it... federal second amendment grounds.


Most notably, there is Nunn v Georgia. ( 1846 Nunn v. State (1 Ga. 243))

Isn't that fascinating? Here we have a state court, in a state that at the time did NOT have an RKBA clause, finding in favor of an individual because of the Federal Bill of Rights.

I think that tells us something.

[Dex Sinister]

I think the issue here is that you "are not comfortable" with Presser saying:

But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

<sigh> Fine, I'll quote the entire passage.

But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542, 553,
...in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

Well gee, that adds a lot to the discussion. You might want to note that the passage I originally quoted is below the passage that you quoted - which merely reiterates Cruikshank's pitiful logic.

Am I supposed to care about whether or not you are "comfortable" with constitutional law? I am not looking for "comfortable" cases or "anti-gun-rights" cases, I am just looking for cases.

No, theoretically you are supposed to care about whether various cases represent valid exercises in legal philosophy, or whether they are interesting excuses for racism cloaked in constitutional language.

I'm quite comfortable with Constitutional law, thanks. The distinction that I was making was that Miller actually supports a strong 2nd amendment interpretation, and that combined with Presser would actually suggest - as Hawkeye has noted numerous times - that if the Second Amendment protects the ownership of military-type weapons appropriate for use in an organized militia at the federal level, and the states "cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government," then by extension, the states cannot prohibit the people from keeping military-type weapons appropriate for use in an organized militia because such would interfere with the Constitutionally-specified federal power to call forth the militia.

Whether the 2nd applies to the states is a question of 14th amendment jurisprudence. Cruikshank has the convenience of having addressed both 1st and 2nd amendment rights, and has, of course, been overturned as far as federal protection of state-limited speech. QED, given the rationale used for federal protection of the 1st, logic dictates that the 2nd should be treated no differently on a basis of purely constitutional logic.

Selective incorporation is no more than a sham excuse for pretending that the SCOTUS wasn't just plain wrong in the Slaughter-house cases. However, if you'd like to mount an argument that the 2nd is somehow so different from the rest of the amendments that are currently being protected against state action, feel free.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[Dex Sinister]

Go find one that says the Second Amendment limits the States, or give it up

You don't really want me to do that, do you?

That would of course be the infamous Dred Scott case, the results of which the 14th amendment was passed to overcome. The Taney court did helpfully list all the horrifying rights as federal claims against State action that negros would possess if they were considered citizens, however.

But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, will all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding.

And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.

[...]

More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

But I would hope, Hugh, that you already knew that.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[Graystar]

Cruikshank has the convenience of having addressed both 1st and 2nd amendment rights, and has, of course, been overturned as far as federal protection of state-limited speech.Exactly what, of Cruikshank, has been overturned?

[hugh damright]

You sound more and more like a troll
Bud, I think it's a bit late in the thread for such an accusation. I have worked my butt off here. If you think I am a troll, then like the moderator suggested a long time ago, leave the thread.

I don't know about King Lincoln, but the States ratified the 14th Amendment
They most certainly did not. The 14th Amendment failed the House, the Senate, and the States. It failed every step of the amendment process. Of course, under constitutional law it is still recognized as a valid amendment. But please do not tell me that it passed the States.

then by extension, the states cannot prohibit the people from keeping military-type weapons appropriate for use in an organized militia because such would interfere with the Constitutionally-specified federal power to call forth the militia.
Which I have already said, I think twice. But at the same time, I said that if a State was to ban .25 pocket pistols, bb guns, and CCW, then that would not impact the militia. The height of this discussion is ... what aspect of the individual RKBA is necessary to the concept of militia and therefore federally protected?

That would of course be the infamous Dred Scott case
I have read the Dred Scott case, and I do not remember it being about the Second Amendment. The way I remember it, a man had a slave and they traveled to a non-slave State, so in that State their relationship was not master/slave but rather "travelling companions". Later they moved back to their original State, and the black man was again a slave. He wanted the SCOTUS to rule that he was still free because they had visited a non-slave State, and the SCOTUS said that was not our Constitution. If you want to construe this to mean that the Second Amendment limits the States, then I beg that you open a thread on the subject, because it's going to take a lot of explaining. Or perhaps I am completely confused on the case, but the way I remember it, Dred Scott was right, and if you want to discuss it, I think it is too far removed from the subject matter here and requires a separate thread. Please.

[Graystar]

Seems to me it's hard to restrain a State if only the employees of the State have guns. Ergo, the citizenry is supposed to be armed.Are there any states that restrict the possession of rifles?

[hugh damright]

Sorry ... I will try to reply re: Dred Scott and the RKBA ... I am wary that race issues are going to become the topic, so that is why I was inclined to dodge the issue ...

Yes, in Dred Scott, they did specifically mention the individual right of a citizen to carry arms everywhere he goes as one of the rights that citizens possess, and say that such rights are federally protected. That was not a ruling that the Second Amendment limits the States, it was part of an explanation of why blacks were not Citizens.

Clearly, at the very least, a member of the SCOTUS writing the opinion believed that rights were federally protected, and I agree with him to a very high degree ... but I do not agree that we have a federally protected right to carry arms everywhere we go. Do you guys believe that? I think a State might restrict the RKBA in banks, bars, churches, court houses ... pretty much whatever they fancy to make themselves comfortable as long as it does not impact "the militia".

[hugh damright]

Are there any states that restrict the possession of rifles?

Not that I am aware of. I believe that would be beyond a States power, something that goes beyond their internal police powers.

If, for instance, California doesn't allow CCW, I cannot imagine how that harms Virginia, so I think it is their intrastate business. But if California banned rifles, I can imagine a scenario in which it would result in Virginia, and every State, being conquered by a foreign nation ... and so I think it becomes a Union/federal matter.

Good question. Maybe somebody else knows more about it ...

[Gordon Fink]

I do not agree that we have a federally protected right to carry arms everywhere we go.…

So what does “bear arms” mean exactly? What does “shall not be infringed” mean?

~G. Fink

[Dex Sinister]

Exactly what, of Cruikshank, has been overturned?

Starting in 1925, SCOTUS began incorporating BoR rights individually into application under the 14th, through the 14th's due process clause, since they had nullified the 14th's priviliges and immunities clause. Gideon explains it as well as any:

"This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment."

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[Graystar]

Starting in 1925, SCOTUS began incorporating BoR rights individually into application under the 14th, through the 14th's due process clause, since they had nullified the 14th's priviliges and immunities clause. And what does that have to do with Cruikshank?

[hugh damright]

So what does “bear arms” mean exactly? What does “shall not be infringed” mean?

Now I am seeing trolls.

The Second Amendment only limits the US and not the States. You cannot say "bear arms means bear arms" and "shall not infringed means shall not infringed" and rewrite the Second Amendment. The intent was to limit the federal power over the militia, and I think we have a limited consensus here now that the only federal protection of the RKBA is as it relates to militia. That seems to be the high ground here.

Is it your assertion that you can come into my State of Virginia and disregard our gun laws, carry a gun anywhere you want despite our laws, and then go to the SCOTUS and have them declare that you are right and Virginia must allow everyone to carry a gun everywhere they go with no restrictions? I am confident they would not even hear such a case, because it is not their jurisdiction.

[The Real Hawkeye]

Now I am seeing trolls.

The Second Amendment only limits the US and not the States. You cannot say "bear arms means bear arms" and "shall not infringed means shall not infringed" and rewrite the Second Amendment. The intent was to limit the federal power over the militia, and I think we have a limited consensus here now that the only federal protection of the RKBA is as it relates to militia. That seems to be the high ground here.

Is it your assertion that you can come into my State of Virginia and disregard our gun laws, carry a gun anywhere you want despite our laws, and then go to the SCOTUS and have them declare that you are right and Virginia must allow everyone to carry a gun everywhere they go with no restrictions? I am confident they would not even hear such a case, because it is not their jurisdiction.Just because they wouldn't hear such a case would not make them right in not hearing it. Since the Federal Government is authorized to ensure the availability of the militia, it is also authorized to prevent ANY and ALL State laws which tend to infringe on the right of the militia's members (the people) to keep and bear arms. Naturally, this point is moot since, as I said, we have enough trouble preventing the Federal Government from outlawing all of our guns, let alone defending our right to keep and bear them as against State laws.

[RealGun]

Now I am seeing trolls.

Perhaps we are.

Is it your assertion that you can come into my State of Virginia and disregard our gun laws, carry a gun anywhere you want despite our laws, and then go to the SCOTUS and have them declare that you are right and Virginia must allow everyone to carry a gun everywhere they go with no restrictions? I am confident they would not even hear such a case, because it is not their jurisdiction.

We have heard all this before. You could have saved everyone a lot of time and effort by starting here instead of asking rhetorical questions. You have incorporated nothing from the discussion, only sought to confirm what you already believed.

It's very simple. If you can't freely carry in VA, then the Constitution, neither that of the US nor that of the State of Virginia, means what it says.

[hugh damright]

You have incorporated nothing from the discussion, only sought to confirm what you already believed.
What's to incorporate? That the original documents in the national archives have the wrong punctuation? That the incorporation docrtine doesn't exist? That the BoR is a living document that used to mean one thing but now means something else? I've tried to take the high road here, maybe I faltered once or twice, but I am proud of my journey, and yes, I have learned things.

Since the Federal Government is authorized to ensure the availability of the militia, it is also authorized to prevent ANY and ALL State laws which tend to infringe on the right of the militia's members (the people) to keep and bear arms
Well let's be specific. Are you saying that all CCW laws are unconstitutional because CCW is needed for militia? Are .25 pocket pistols needed for militia? Are bb guns needed for militia? I think it is a cop out to admit that the only federal protection is as it pertains to militia, and then insist that everything pertains to militia. A cop out. Hawkeye, I can tell that you have more integrity than that, so I am confused and thinking I must be misunderstanding you somehow.

[The Real Hawkeye]

Well let's be specific. Are you saying that all CCW laws are unconstitutional because CCW is needed for militia? Are .25 pocket pistols needed for militia? Are bb guns needed for militia? I think it is a cop out to admit that the only federal protection is as it pertains to militia, and then insist that everything pertains to militia. A cop out. Hawkeye, I can tell that you have more integrity than that, so I am confused and thinking I must be misunderstanding you somehow.You did misunderstand me, apparently. I never said that the keeping and possessing of any and all arms is a right guaranteed by the US Constitution, even if it is a right belonging to each individual. I merely said that the Federal Government is authorized by Articles I and VI (taken in conjunction with the Second Amendment's reference to militias) to enforce the right of each person within our national boarders to keep and bear arms, without restriction by State law. Because they are authorized to do so does not mean that they will do so, or are Constitutionally required to do so.

There is a way to read it so as to imply an obligation on the part of the Federal Government to enforce the right of the people to keep and bear arms, though I am aware that this is a bit of a stretch. What I am certain of, however, is that the Federal Government, while being prohibited from passing any restrictions on the ownership or carrying of any and all arms, is also authorized to fully enforce the right of the people to keep and bear any and all arms, as any and all arms could be useful to a militia, the calling forth of which Congress is authorized to do.

[hugh damright]

I merely said that the Federal Government is authorized by Articles I and VI (taken in conjunction with the Second Amendment's reference to militias) to enforce the right of each person within our national boarders to keep and bear arms, without restriction by State law.

I am having trouble making the distinction ... do you believe that police powers were reserved to the States, and that these reserved police powers include gun control powers? Would you be so kind as to give examples of what gun laws you think a State might pass without exceeding their reserved powers?

[The Real Hawkeye]

I am having trouble making the distinction ... do you believe that police powers were reserved to the States, and that these reserved police powers include gun control powers? Would you be so kind as to give examples of what gun laws you think a State might pass without exceeding their reserved powers?Hugh, I suspect that the reason you are having difficulty understanding me is that you have not studied the jurisprudence of the supremacy clause. Read up on it. Basically, from what I recall from law school, the Federal Government can override State laws in those areas only where the Federal Government is delegated powers to act. Now, if the Federal Government chooses to act in such a way regarding these powers so as to conflict with State law, the State law is overridden, at least to that extent, and Federal Law prevails. Clearly, the Congress is delegated certain authority over the militia of the United States, which militia is made up of a portion (depending on need) of each State's militia. Should the Federal Government choose not to act at all then, for that period of time during which they do not act, the States may exercise full authority regarding their militias, even to the point of disarming them entirely. However, the Congress, because of Articles I and VI, is within its just powers, though not required, to pass laws preventing this, if it so chooses (I think it could be argued that Congress is Constitutionally bound to prevent a total disarmament of the militia, but being Constitutionally bound to do something hasn't made much difference with the Federal Government in the past, at least not since the passage of the Seventeenth Amendment). That is all I'm saying. Short of the Federal Government choosing to defend the right of individuals to keep and bear arms, the States are not prevented by the Constitution from outlawing them all. If the Congress does choose to defend the individual right of Americans to keep and bear arms, however, their laws in this regard would trump State laws to the contrary. I don't think that you are at risk of the Federal Government twisting the arms of your State representatives to prevent them from infringing on our right to keep and bear arms, however, so you can relax.

[RealGun]

I am having trouble making the distinction ... do you believe that police powers were reserved to the States, and that these reserved police powers include gun control powers? Would you be so kind as to give examples of what gun laws you think a State might pass without exceeding their reserved powers?

You didn't ask me, but the Constitution doesn't recognize the more modern concept of police or police powers. You would have to read that into the document or follow case law. In any event, police powers could not violate rights guaranteed by the COTUS, per the 14th Amendment. That's what everyone is waiting to have established by the Supreme Court and why State CCW licensing or gun control in general offends many people. This is what the Constitution says, yet the operative law is something else, conveniently ignoring the Constitution or explaining it away.

[RealGun]

Short of the Federal Government choosing to defend the right of individuals to keep and bear arms, the States are not prevented by the Constitution from outlawing them all.

The States ARE prevented by the Constitution. You avoid the 14th Amendment. I don't. Your persistent propaganda cannot change what the 14th Amendment says, backed up by well qualified opinions of constitutional law specialists, Hallbrook et al. The States are not prevented "from outlawing them all", because the Federal Government (sic) has chosen not to defend the right of individuals to keep and bear arms. They do that primarily by denying cert to gun cases or by very narrow rulings that avoid addressing the Second Amendment directly. They are also fond of citing ludicrous prior rulings, a self justifying house of cards in direct conflict with what the Constitution actually says.

[hugh damright]

Your persistent propaganda cannot change what the 14th Amendment says, backed up by well qualified opinions of constitutional law specialists, Hallbrook et al.

It is not propaganda, it is constitutional law, and I think that has been demonstrated. I see no point in pretending that the incorporation doctrine doesn't exist, but I've already said that, and the pretense continues.

[natedog]

I've always interpreted the 2A as a list of rights-

"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."

1. The right of States to maintain well regulated Militias
1A. This is necessary to the security of a free state

2. The people (individual citizens) have a right to keep and bear arms

3. All of the above shall not be infringed upon by law

[hugh damright]

All of the above shall not be infringed upon by law

I agree except that I would say that all of the above shall not be infringed upon by Congress. And my State Constitution says it shall not be infringed upon by my State. And that seems to cover it.

[cosine]

I agree except that I would say that all of the above shall not be infringed upon by Congress. And my State Constitution says it shall not be infringed upon by my State. And that seems to cover it.

Well, that would have made it easier in the first place if you had carefully made that distinction about what you believed. :rolleyes:

[RealGun]

It is not propaganda, it is constitutional law, and I think that has been demonstrated. I see no point in pretending that the incorporation doctrine doesn't exist, but I've already said that, and the pretense continues.

You are making the responses too personal. I was quoting someone else.

[The Real Hawkeye]

You are making the responses too personal. I was quoting someone else.Yeah, but this is Hugh's thread.

Just kidding, Hugh.

[RealGun]

It is not propaganda, it is constitutional law, and I think that has been demonstrated. I see no point in pretending that the incorporation doctrine doesn't exist, but I've already said that, and the pretense continues.


The incorporation doctrine is not the Constitution. It may be "established law", but so is gun control. The only justification for it is to manage the social consequences of suddenly confronting the States with all of the Bill of Rights. The Supreme Court made that up out of thin air.

[The Real Hawkeye]

The States ARE prevented by the Constitution. You avoid the 14th Amendment. I don't.I don't avoid the Fourteenth Amendment at all. I interpret it the way the SCOTUS interpreted it before they distorted it to fit in with Welfare State leftism. That is to say, I interpret it as it reads in straightforward English. Nowhere in the Fourteenth Amendment does it say that Constitutional federalism is now to be turned on its head, in contradiction to the founding purpose of the Constitution. Had it actually said that, it would not have been ratified, if it ever was really ratified, which is in serious doubt. It is doubtful whether the Federal Government would have had soldiers march State representatives from Pennsylvania and Massachusetts into their respective voting chambers with instructions to vote for ratification or be shot, even if that was what they did in the Southern States.

[hugh damright]

Real Gun, if I am not mistaken, you make derogatory remarks using words like "fantasy" and "propaganda", and then complain when you are confronted. If you do not want to be confronted, don't be so confrontational. Thank you. The rest of this thread is not directed at you personally, it is just general comments ...

I can imagine how a "14th Amendment man" would think the incorporation doctrine was not worthy of respect. He might feel that the 14th Amendment view is the original intent, or should have been, and that anything to the contrary is an impediment to the ends of government.

If I try to view things in that light, then the way I would look at the incorporation doctrine is this ... the 14th attempted to change our society, culture, and government, all in one day. The SCOTUS had a duty to check the Congress, and so they created the incorporation doctrine to slow things way down, to "throttle" the 14th, and phase it in over a reasonable period of time, which might be a couple hundred years! This is a little simplified, and I don't actually see things in this light, but I hope to raise a point here ...

I think this introduces a concept of constitutional law which is new to me. Normally, if a law is found to be unconstitutional ... if for example the SCOTUS ruled that the national gun free school zone was unconstitutional ... then I think of it as having been unconstitutional all along. But if the SCOTUS should ever incorporate the Second Amendment ... if for example the SCOTUS ruled that all State CCW laws were unconstitutional ... then I believe that would not mean that they had been unconstitutional all along, but that they were being deemed unconstitutional from then forward ... it's more of a "legislation from the bench".

Personally, whenever people talk about the intent of the 14th Amendment, sometimes I get lost in all the views, and in fact I just bought a 750 page book on the reconstruction amendments, so I hope to learn more about the intent. But I think the bottom line is, the original intent of the 14th Amendment was that it fail.

[RealGun]

Real Gun, if I am not mistaken, you make derogatory remarks using words like "fantasy" and "propaganda", and then complain when you are confronted. If you do not want to be confronted, don't be so confrontational. Thank you.

You are mistaken.

[hugh damright]

I may have to start an ignore list. Real Gun, why do you keep making this worse? You said:

despite someone else's little fantasy land description, which serves mainly to justify the Confederacy

And you also said:

Your persistent propaganda cannot change what the 14th Amendment says

These were posts #185 and #225 in this thread.

I said that you were making derogatory remarks using words like "fantasy" and "propaganda", and you said I am mistaken. I will give you the benefit of the doubt and assume that there must be more than one person using your account and appearing as "Real Gun". But I may have no choice but to create an ignore list and put "Real Gun" on it. I hope you can understand my position.

[Graystar]

I hoped you learn your lesson Hugh. The Second Amendment is gospel around here. It is an individual right and no other meaning can be associated with it. Attempting to do so is to invite a jihad upon yourself.

I don’t even try any more. It’s a shame too...as long as people continue to cling to the Second Amendment we’ll never get our right to possess firearms for personal protection recognized.

[RealGun]

I said that you were making derogatory remarks using words like "fantasy" and "propaganda", and you said I am mistaken. I will give you the benefit of the doubt and assume that there must be more than one person using your account and appearing as "Real Gun". But I may have no choice but to create an ignore list and put "Real Gun" on it. I hope you can understand my position.

Neither quote was referring to you. You haven't been around long enough to follow what I meant. Ths kind of dialogue should be done off line. Unfortunately, I don't accept PMs, so perhaps you could just get back on topic. If I was on your ignore list, perhaps it wouldn't make any difference.

[The Real Hawkeye]

Hugh, unless I am mistaken (and I don't think that I am), RealGun was directing those disparaging remarks at yours truly. Has something to do with his argumentative style, I think.

[Dex Sinister]

And what does that have to do with Cruikshank?

Hmmm. Let's see - I'm just not sure what I'm not answering?

Cruikshank:

Is currently considered good law as applied to the 2nd amendment.
Was decided after the 14th was passed (and therefore the 14th was relevent)
held that the 1st Amendment right to assembly "was not intended to limit the powers of the State governments in respect to their own citizens"
held that the 2nd Amendment "has no other effect than to restrict the powers of the national government".
was rendered partly invalid by later decisions, based on the incorporation doctrine interpretation of the 14th


Now, why is it interesting? Because it dealt with both the 1st and 2nd in the same lawsuit (very unusual) and because it describes both rights in essentially the same manner:

The 1st: The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It 'derives its source,' to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection.
The 2nd: The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, [...] 'powers... called internal police,' 'not surrendered or restrained' by the Constituton of the United States.

The 2nd amendment explanation is directly below the 1st amendment explanation, possibly the reason for more brevity.

Now why can't the federal courts protect either of them?
Because:

1st The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id. 203, subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone.
2nd: This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, [...] 'powers... called internal police,' 'not surrendered or restrained' by the Constituton of the United States.


So, in Cruikshank SCOTUS looks at both and says something along the lines of, "Sorry guys, we'd like to help see'n as how those white people massacred you and all, but first of all you didn't claim they were acting on behalf of the state, second you didn't specifically list what exactly they did, and third the Constitution not only didn't invent these rights, but it didn't grant us any police powers to enforce them against states or individuals." (More or less.)

Which of course leaves the interesting question of who exactly is supposed to enforce the rights that pre-exist government, if governments violate them.

[more later.]

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[Dex Sinister]

I don’t even try any more. It’s a shame too...as long as people continue to cling to the Second Amendment we’ll never get our right to possess firearms for personal protection recognized.

Meaning what?

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[Dex Sinister]

Is it your assertion that you can come into my State of Virginia and disregard our gun laws, carry a gun anywhere you want despite our laws, and then go to the SCOTUS and have them declare that you are right and Virginia must allow everyone to carry a gun everywhere they go with no restrictions? I am confident they would not even hear such a case, because it is not their jurisdiction.

Why not? We do it in the cases of drivers licences and marriages under the "full faith and credit" clause.

Let us suppose that I have a CA CCW license (which I realize is not "with no restrictions", but let's ignore that, arguendo.) Why shouldn't I have a valid claim under the federal Constitution when VA attempts to arrest me for carrying a concealed weapon given that the Constitution commands that VA give full faith and credit to CA's legislative act?

I could do so if VA attempted to prosecute me for bigamy because I had obtained a divorce in CA, or if they arrested me for driving without a license because they refused to recognize my CA driver's license.

Certainly I realize that they wouldn't hear such a case, but not because it is outside their jurisdiction.

Dex http://home.pacbell.net/ajoule/firedevil_smiley.gif

[RealGun]

Hugh, unless I am mistaken (and I don't think that I am), RealGun was directing those disparaging remarks at yours truly. Has something to do with his argumentative style, I think.

I don't think we can justify personal sparring. I will just say that a willingness to challenge nonsense is not fairly described as being argumentative. Some are easily snowed and some are not. If one is customarily dogmatic while being the contrarian, he might be challenged on occasion.

[The Real Hawkeye]

Nice analysis of Cruikshank, Dex. Reminds me of the case reports I had to do in law school way back when. You had to have it in front of you when the prof called on you to answer one of his questions, and if you didn't have one, he'd give you a dime (just like the movie) and would tell you to go call your mother to bring you home, or some such thing. Good work. You get to stay in class today.

[The Real Hawkeye]

I don't think we can justify personal sparring. I will just say that a willingness to challenge nonsense is not fairly described as being argumentative. Some are easily snowed and some are not. If one is customarily dogmatic while being the contrarian, he might be challenged on occasion.I think I will leave the judgment whether I'm dogmatic to the general membership here at The High Road, rather than accepting your opinion as dogma. Believing that words have meaning is not the same as being dogmatic, in my opinion. If I recall correctly, it was when I asserted that liberty, in the political sense, means simply one's legal authority to do what it is already his right to do, and that a right was what one ought to, under law, be at liberty to do, that "provoked" you into calling me dogmatic. I didn't provide a source for this, as you insisted, because it seemed ludicrous to require one for such fundamental concepts, but since you have repeated the charge of dogmatism in this thread, here's the definition of political liberty provided by the Web Dictionary, viz., "one's freedom to exercise one's rights as guaranteed under the laws of the country." There, does that make me less dogmatic? The clear implication of the definition is that rights preexist law, and that laws are either in conformity with them (as they ought) or not. When they are in conformity with them, that is called political liberty. When they are not, that is called tyranny. Now, you are not going to make me cite definitions of that word too, are you?

PS I responded to the charge of being "dogmatic" in this thread, because it was repeated in this thread, and had something to do with the subject of this thread. No intention to hijack.

[coat4gun]

Many argue that, while the 2nd protects our personal right from Federal infringement, States are free to stomp all over that "Right" as they see fit. This seems almost contradictory in my eyes... in fact it is almost hippocritical. How can it be said that a "right" is protected... Oh, but not at the State level. Is the right protected or not? I see nowhere in the wording of the 2nd that it only applies to Federal control... like it does specifically say in the 1st.

My contention is that all States agreed to be bound by the Constitution and BOR when they signed said document and therefore have no legal ground to override its contents. I realize that historically it has not been looked at this way... but I am a citizen of the United States and therefore should have the protections of its highest law, the Constituion and BOR.

[The Real Hawkeye]

Many argue that, while the 2nd protects our personal right from Federal infringement, States are free to stomp all over that "Right" as they see fit. This seems almost contradictory in my eyes... in fact it is almost hippocritical. How can it be said that a "right" is protected... Oh, but not at the State level. Is the right protected or not? I see nowhere in the wording of the 2nd that it only applies to Federal control... like it does specifically say in the 1st.

My contention is that all States agreed to be bound by the Constitution and BOR when they signed said document and therefore have no legal ground to override its contents. I realize that historically it has not been looked at this way... but I am a citizen of the United States and therefore should have the protections of its highest law, the Constituion and BOR.Well, the answer to your question has to do with the type of government with which the Founders provided us. We do not live in a unitary republic called the United States of America. We live in a number of smaller republics which are united only in certain respects by a document: the Constitution. The purpose of that document was to provide certain specified powers to the Federal Government (Some of which are exclusive to same), while reserving all other powers for the States.

Additionally, we have the Bill of Rights. This document was an amendment to the document which created the Federal Government. Its purpose was to place restrictions on the Federal Government. Each State already had their own Constitutions with their own restrictions and lists of just powers. That's why, although the Second Amendment refers to a right belonging to the people, it does not also empower the Federal Government to be a guarantor of that right. The Second Amendment just tells the Federal Government that none of its laws can have the effect of infringing (i.e., interfering with) our right to keep and bear arms. It was expected that the self-governing peoples of the States would be their own guarantors of that right, via their control over their local and State governments.

Madison described it this way:The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. -Federalist No. 45

[coat4gun]

Well, the answer to your question has to do with the type of government the Founders provided us with. We do not live in a unitary republic called the United States of America. We live in a number of smaller republics which are united only in certain respects by a document: the Constitution. The purpose of that document was to provide certain specified powers to the Federal Government (Some of which are exclusive to same), while reserving all other powers for the States. Additionally, we have the Bill of Rights. This document was an amendment to the document which created the Federal Government. Its purpose was to place restrictions on the Federal Government. Each State already had their own Constitutions with their own restrictions and lists of just powers. That's why, although the Second Amendment refers to a right belonging to the people, it does not also empower the Federal Government to be a guarantor of that right. The Second Amendment just tells the Federal Government that none of its laws can have the effect of infringing our right to keep and bear arms. It was expected that the self-governing peoples of the States would be their own guarantors of that right, via their control over their local and State governments.

Making interstate travel extremely hazardous to us carriers. When crossing a State line could mean 10 years in prison and being labeled as a criminal.... all in the same country.... just because I take my responsibility of protecting my family and myself seriously... Its just wrong. Ok... rant off. Thanks for the well stated reply.

[The Real Hawkeye]

Making interstate travel extremely hazardous to us carriers. When crossing a State line could mean 10 years in prison and being labeled as a criminal.... all in the same country.... just because I take my responsibility of protecting my family and myself seriously... Its just wrong. Ok... rant off. Thanks for the well stated reply.You're welcome. Read it again, though. I've modified and extended it.

[Graystar]

was rendered partly invalid by later decisions, based on the incorporation doctrine interpretation of the 14thI don't see how Cruikshank could possibly be rendered invalid by the incorporation doctrine.

The jist of Cruikshank is that rights violations against individuals, by individuals, is the domain of the state, not the federal government. And this is correct. If a person is robbed or killed (the worse rights violation of all) does that go to federal court? No. The state protects our rights. When the state fails to do so then the federal government will force the state protect our rights. That was the problem with Cruikshank. The proper course of action was to appeal the conviction, and eventually end up in federal court with Louisiana on the hook for not protecting the rights of its citizens.

Which of course leaves the interesting question of who exactly is supposed to enforce the rights that pre-exist government, if governments violate them.That question is clearly answered in Cruikshank:
The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.A perfect example of this principle at work is the Roe v. Wade. A woman felt that the state was violating her rights and tried to get the state to change their ways. When the state wouldn’t, she took the matter to the federal government, which forced the state to protect her rights. That is EXACTLY what Cruikshank says.