"collective" right?


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WeedWacker
January 16, 2009, 08:48 AM
Ok, I have heard this several times about the second ammendment and each time I have this go through my mind:

If collective refers to the people, then as a collective right wouldn't that imply that all people have a right to bear arms?

If the "collective" right refers to organizations it would seem more like a police state is what is being striven for as only those approved/registered with the government may bear arms

If the "individual" right vs "collective" indicates an individual may exercise the right, wouldn't that make the collective people able to exercise the right as well?

Wait, what's the question?



Anyway that's how it always ends up during the middle of graveyard shift (which may be the source of the confusion :banghead:).

I suppose it all depends on what your definition of the word "is" is... in this case I suppose "is" refers to collective.


So my question: What is implied by "collective" in "collective right?"

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everallm
January 16, 2009, 09:09 AM
Heller drew a line in the sand and removed the whole militia/collective issue when we talk about 2A.

No longer a question.

(Caveat.....At least as pertains to a limited self rule, federal enclave such as DC, until 2A becomes incorporated.......)

greenr18
January 16, 2009, 09:14 AM
Here's the second amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Here's my interpretation: We are allowed weapons to defend ourselves, if this amendment was for the purpose of establishing a militia, then we should be able to own at least whatever modern small arms exist in our current standing army, and shall not be infringed means no law can be made to restrict any type of weapon. However the government clearly disagrees with my interpretation. As far as I can see the second amendment has been infringed upon to the extreme, there really aren't any more militias, there's the national guard which is completely government controlled as far as I know. The point of a militia was that there would be a large standing civilian force so that if the government ever became tyrannical the militia could easily take on the standing army. Of course in 1776 they couldn't possibly imagine tanks, helicopters or computer guided missiles, it'd be impossible now a days for a civilian force to compete with the United States Army and because of the '86 ban and the NFA infringements, its awfully hard for the average citizen to arm themselves with the same type of weaponry that our standing army uses. Maybe I got a little side tracked there... uhh my point is the second amendment was established so the people could defend themselves and it clearly says the right to bear arms shall not be infringed but uhh well, it is infringed on.

Edit: i'd like to add i find it disgusting that some people (though i doubt anyone on this board) interpret the second amendment as meaning the GOVERNMENT has a right to bear arms, not people. whats even more sickening is the fact that some people think the second amendment has no meaning now a days (again doubt anyone on this board)

oh and if im getting too side tracked or ranty please tell me once i get into second amendment debates i sort of go on and on and on

expvideo
January 16, 2009, 10:08 AM
No longer a question.
+1. DC vs Heller determined this in 2008. That is why that case was such a historic and momentous event for the RKBA.

Besides, the modern literal translation of the second amendment would read:

"Because the citizens may need to be called upon to defend freedom, they must not be restricted in any way from owning and carrying modern weapons."

This is exactly what the 2nd amendment means, and translating it any other way is twisting the words and pretending that it was written in an unclear language, which it was not. The 2nd amendment is written in very firm and clear language.

The blue text is a translation of "shall not be infringed". This is also very clearly written and should not need explaining. Shall Not is the firmest negative in the English language. It is the wording that God used in the 10 commandments, and those words were chosen carefully when the 2nd amendment was written to reflect the lack of flexibility of the 2nd amendment.


The red text is what Militia means, and it is what Militia meant at the time. It did not mean the National Guard or the military.

The green text is what "keep and bear" means. I think that one is pretty obvious. You'd have to have a pretty active imagination to come up with another meaning.

The magenta text is what "arms" means. I hear the argument a lot that "they didn't know we would have high-capacity magazines/assault weapons/machineguns/whatever" and that they only intended this to apply to single shot muskets. Well that was what people had at the time, but it is also what the government and the military had. That means that the people were armed with the same weapons that the government was.

RDak
January 16, 2009, 10:22 AM
To me, after Heller, it means there is both a collective and individual right to keep and bear arms.

expvideo
January 16, 2009, 10:34 AM
To me, after Heller, it means there is both a collective and individual right to keep and bear arms.
It seems to me that if it is an individual right it is also a collective right by default, since the collective is made up of individuals. Of course that would make too much sense, so God only knows how the supreme court would feel about that.

RDak
January 16, 2009, 10:41 AM
I think the collective means the well regulated militia members. So, maybe that is a little separate from a private individual?

Edit: Of course, it doesn't matter anymore!! We were so LUCKY to get Heller decided before Obama got into power. :D

TexasRifleman
January 16, 2009, 10:48 AM
So my question: What is implied by "collective" in "collective right?"


As mentioned, it was the idea that the right of "the people" meant the "people" as a whole, represented by their government.

Therefore only the government's organized armies/militias could have firearms.

Clearly wrong and no longer a valid agrument post Heller.

It wasn't ever a valid argument anyway.

If you were to take any of the other Bill of Rights and read them with "The People" meaning only the government itself they would sound silly.

Heller settled it, though the hardcore anti gun people still cling to it since they don't really have anything else.

RDak
January 16, 2009, 10:51 AM
And one of those hardcore people still clinging to it Texas is the soon to be Attorney General, Eric Holder. :mad:

Duke of Doubt
January 16, 2009, 12:48 PM
expvideo: "Shall Not is the firmest negative in the English language. It is the wording that God used in the 10 commandments, and those words were chosen carefully when the 2nd amendment was written to reflect the lack of flexibility of the 2nd amendment."

1. "Will not" is firmer, but "shall not" is more appropriate to the context.

2. God did not speak modern English.

3. "Congress shall make no law respecting" (from the First Amendment) is a stronger prohibition than "shall not be infringed" (from the Second Amendment. "No soldier shall" from the Third Amendment is even stronger -- closer to "will not."

TexasRifleman
January 16, 2009, 12:58 PM
God did not speak modern English.

No but King James did, close enough :)

(just kidding, kidding)

legaleagle_45
January 16, 2009, 01:09 PM
Collective right theory is not a precise description, as there are different approaches within this general category.

"Pure collective right" asserts that the 2nd only protects the right of the states to arm their militia... this view is exemplified by the 9th Circuit holding in Hickman v Block. It is now a totally rejected thesis, since all 9 judges in Heller rejected same.

The "sophisticated" collective right theory holds that it is an individual right, but that individual right is restricted to active militia members of a well regulated militia (thus avoiding the problems associated with statutory recognition of the unorganized militia) and protects only the arms used by said militia members in fulfillment of their militia duties. That was the consensus opinion of the dissent in Heller.

expvideo
January 16, 2009, 01:15 PM
expvideo: "Shall Not is the firmest negative in the English language. It is the wording that God used in the 10 commandments, and those words were chosen carefully when the 2nd amendment was written to reflect the lack of flexibility of the 2nd amendment."

1. "Will not" is firmer, but "shall not" is more appropriate to the context.

2. God did not speak modern English.

3. "Congress shall make no law respecting" (from the First Amendment) is a stronger prohibition than "shall not be infringed" (from the Second Amendment. "No soldier shall" from the Third Amendment is even stronger -- closer to "will not."
1. I disagree. The 10 commandments are written with "shall not". This wording was intentional in the bill of rights to give a firm stance. "Will not" is a promise that the government won't do something. "Shall not" is a direction or an order to the government and the people. They have different meanings. This is because the bill of rights supercedes all law, so "will not" does not fit. "Will not" would be a decision made by the government. "Shall not" is a decision made by God. "Shall not" draws a line in the sand, so that the people know when the government has superceded it's power.

2. Well I don't speak aramaic, so it's a good compromise. Since this is an English speaking board, I think we'll have to deal with this arguement in English.

3. The constitution was written with its wording intentionally. Each word of each amendment was carefully picked for emphasis. Remember that the bill of rights is a list of inalienable human rights, not a promise from the government. It is a list of directions. "Shall not" is a direction. "Will not" is a promise. "Shall not" indicates that the rights set forth in the bill of rights are not for the government to promise, because they supercede the government's authority. The government can promise not to do something all they want. The bill of rights tells them without flexibility what they can or can not do.

Cyborg
January 16, 2009, 01:30 PM
I think a great (the greatest?) part of the confusion over the 2nd Amendment is the "well regulated militia" clause. Language changes over time. Meanings of words and prases evolve and change over decades and centuries. The biggest problem - as I see it of course - is is the difference between what we generally understand "well regulated" to mean today and what people in the late 18th century understood it to mean. If we are to have any understanding of the 2nd amendment we MUST understand "well regulated" in as close to the way the framers of the constitution understood it as possible.

We live in era where government "regulations" abound and very few aspects of our lives are not impacted by some sort of government "regulation" be it federal regulations governing the operation of airlines to city ordinances governing whether or not I can put a patio (or build a tool shed or put up a fence) in my own back yard. We think of "regulated" as meaning controlled by some sort of outside agency or device - you have a voltage "regulator" in your PC. The people making and enforcing rules at the FCC and other agencies arereferred to as "regulators". And we think of "regulation" as either a process of control or a rule that is made to accomplish that control. I remember the first time I noticed the word "regulated" on the back of a wristwatch. I was surprised that they had government rules for THAT, too.:rolleyes:

But in the late 18th century "well regulated" did NOT mean a process that had a large number of rules and laws to control it. In that time "well regulated" meant "properly functioning". Yes, it might be functioning properly because it was adjusted or had elements in its process than made it function properly but the phrase was primarily an indication of how well something operated. A "well regulated" militia was not a militia functioning within a large set of rules and laws. It was simply a properly functioning militia. Of paramount importance to that proper functioning was the necessity for individuals to be able to own and carry weapons of sufficient lethality and technology to enable a militia comprised of those individuals and using their own weapons to function properly.

A deer rifle would make a nice sniper's weapon. It would be terrible for defending a fixed position. It would not be especially useful for rooting out insurgents/invaders who had gone to ground in a neighborhood. The armed forces have the tools to do that. Individual citizens who might possibly have to be part of the force rooting out the badguys need the same tools. While a "properly functioning" might INCLUDE drill and training in tactics and such, absent tools to actually DO the job properly - i.e. firearms of sufficient lethality and technology - the rest is useless. I suspect that is why the founding fathers insisted in prohibiting Congress from passing any law that reduced the likelyhood of a militia having proper, military-style weapons - i.e. from functioning properly.

But then on a similar note, in that time they had "well tempered" musical instruments. That does not mean their instruments were mellow and easy to get along with. It means they were properly tuned.

Of course some people have agendae that can only be advanced in a climate where the language of the 2nd amendment is unclear or misinterpreted. As a corollary, I suggest you research the original meaning of Jefferson's "wall of separation" between church and state.

Thus endeth the lesson. (drat! I wish I could write with a scots burr)

Cyborg

expvideo
January 16, 2009, 03:07 PM
A lot of people on the Brady side of the debate prefer to read the 2nd amendment as:

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

Cyborg
January 16, 2009, 03:40 PM
I am not a hebrew scholar (the majority of the Jewish bible - i.e. the Old Testament - was written in Hebrew) and I surely do hate to rain on expvideo's parade but "shall not" is not in the Hebrew text of the decalog (10 commandments). The original wording was literally more like "no murder", "no stealing", "no coveting" etc. It's kinda like the rules posted on the fence at the local swimming pool - No running, No diving in the shallow area etc. When the translators of the Hebrew text did/do their work they wanted to bring the meaning into English. The Hebrew phrases that are translated in the King James version as "Thou Shalt Not" etc. carry an absolute prohibition. Creator God said in the strongest possible terms "DO NOT DO THAT."

The language in the 2A is the same sort of simple, complete, absolute, unequivocal prohibition. The militia clause aside and irrespective of WHY Congress is prohibited from doing it, the 2A absolutely prohibits the Congress of the United States from passing any law that infringes on the right of the people to own and carry firearms. Our esteemed Attorney General Nominee - just this week - confirmed that he does not believe that prohibition to be absolute and that - despite Heller - he thinks making the assault weapons ban permanent would be permitted

Nuff said.

Cyborg

expvideo
January 16, 2009, 04:28 PM
2. God did not speak modern English.
God didn't write the bill of rights either.

natman
January 16, 2009, 09:01 PM
So my question: What is implied by "collective" in "collective right?"

The collective interpretation of the Second Amendment was that in the 2nd Amendment, the phrase "right of the people" allied to the people collectively, i.e. only under special circumstances as when "the people" were under government supervision in the National Guard or other government controlled activity.

Note that the collective notion only applied to the 2nd Amendment. Trying to apply the collective right model to other amendments shows just how ridiculous it was; imagine having the right of free speech, but only under government supervision, or the right to assemble, but only with government permission.

The Heller decision drove a stake in this idea, burned it to ashes and buried it under a crossroads at midnight. It has been thoroughly discredited and has been relegated to the ash heap of ideas, along with communism and eugenics.

FromMyColdDeadHand
January 16, 2009, 09:09 PM
The way I take on the "collective" arguement is to plug the word state into the other amendments where it says people. It gets silly really fast.

OMDP
January 17, 2009, 08:20 AM
I believe the reason why there is a collective rights theory is because of the arguements of the second amendment.
The amendment is about the militia, that is why the militia is put first in this amendment.
The reason to have the right to keep arms, is so the militia, and only the militia as prescribed in the constitution, has a ready source of arms available that does not come from government sources.
The reason to have the right to bear arms is so this militia has the individuals to use these weapons when the time is needed. So the aim of the amendment is to protect something that is collective, the militia which also works for the collective. This is collective defence as opposed to individual defence, ie self defence.
So take this collective view of the second amendment, claim that it is a collective right, therefore individuals are not protected, only the militia is protected, as it is the weapons of the militia and the personnel of the militia that are protected. Then claim that this means that only the militia weapons are protected and you have yourself a collective right.
Okay, the falicy of the argument is that you need to have individuals with gun, and their right (or duty) to keep them and to serve in the militia protected on an individual basis otherwise the federal government will walk rings around this militia.

The problem seems to be over analysis of the amendment. The term "the people" is obviously collective, made up of individuals and the supreme court defined the term "the people" and everyone was able to make it say what they wanted it to say.
The simple fact is that the founders' intentions on this matter were clear, and anyone looking at what was going on at this time will be clear in the matter.

Take the different versions of the 2A

June 8th 1789
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.

August 17th 1789
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

Being religiously scrupulous of bearing arms is said in connection with rendering militiary service, or a synonym of this is "bear arms"
This was clear that bearing arms was rendering military service and the context of the amendment is the well regulated militia. It is clear that bearing arms was a collective defence. This is what would have been protected by this amendment.

Bear arms CAN mean something different to this, but the founders did not use it in this way. Two state constitutions at the time also had collectiveness within their RBA

North Carolina’s constitution of December 18, 1776

XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

In the Massachusetts declaration of rights of 1780
XVII.--The people have a right to keep and to bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Mr Gerry also came out and said something along these lines too in the First Congress discusion on this matter.

Does it therefore matter whether "the people" is collective or individual in this case? Not really, the importance is that it does not say "the government" or "the militia" it refers to the non governmental mass of the people.

I also don't think the "well regulated militia" part is confusing, it think this is clear, it should be taken in context with article 1 section 8. It is only confusing if you don't know what you are talking about.
I think what is most confusing is not the wording of the amendment at all, but the ways that people attempt to claim that the amendment reads "The right of individuals to keep arms and to use them for self defence, hunting etc, shall not be infringed".
The claim that the first part of the amendment is a preamble is ridiculous. It is as much a part of the amendment as the second part, the reason to call it a preamble is to claim that the RKBA should not be taken in the context of the well regulated militia, when it should.

An individual can keep arms, that does not mean they can keep all arms, nuclear weapons a clear case, it does not mean anything in the way of useage of the arms, it just means the govt cannot prevent you from obtaining them, so the buying and selling and transporting of the weapons, also the storing of them, but the govt can ban certain weapons as long as they do not artificially increase the price of weapons to make them unobtainable. They can also ban hunting, and things like this.
(This is taken without the argument that the govt does not have the powers to do this in the first place, which is a separate matter and i explain it in this way to make it clearer, hopefully)
The bearing of arms does not mean the use of arms, except when under militia control. It is clear that if an individual can bear arms in any way they choose then the parading of arms through the streets would be protected, yet the supreme court deal with this a long time ago.


PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886)

“We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.”

So the basics are, an individual is protected to keep arms, and be in the militia. ANything else may be allowed, but is not protected by this amendment.
There is the issue of self defence as well. I believe that the right to self defence exists, but not purely from this amendment. That the 9th and 10th play a part, but that because individuals have guns, they are allowed to use them (even illegal guns are allowed to be used in self defence legally).

SCKimberFan
January 17, 2009, 09:46 AM
Why, in the other 9 Amendments of the Bill of Rights, does it speak to an individual right with the same language, yet in the 2nd, it refers to a 'collective' right?

I have never understood that. Perhaps someone can shed some light...

gc70
January 17, 2009, 11:09 AM
The claim that the first part of the amendment is a preamble is ridiculous. It is as much a part of the amendment as the second part, the reason to call it a preamble is to claim that the RKBA should not be taken in the context of the well regulated militia, when it should.

Luckily, SCOTUS does "ridiculous" things like recognizing an individual right to arms, not dependent on participation in a militia.

Cyborg
January 17, 2009, 10:27 PM
OMDP, The militia clause in the 2A is not a preamble. It is in fact the reason for the amendment. Let me remind any who have forgotten that "well regulated" meant properly functioning. If you look at the earlier drafts of the amendment and other contemporaneous writings it is clear that the Founding Fathers considered a well armed armed populace essential to the security of a free nation. Without a well armed populous, there was no possibility of having an effective, properly operating militia.

An armed populous does not guarantee that a nation will remain free, but without an armed populous the chance of a nation being taken over by an invading army increase drastically. Absent an armed (and well armed at that) populous, once an invading army has breached the screen of a nation's armed forces, the nation is effectively defenseless. If the populous is well armed, then the invader faces a nightmare of guerilla warfare. Look at our own Revolutionary War. To the best of my knowledge, the Continental Army never won a single pitched battle. And that is no insult to them. They faced arguably the finest army on the planet at that time. Infantry tactics required a high degree of discipline and training to work.

What made the British sue for peace was the fact that we made it too expensive for them to continue the war. Had our populous been unarmed it would have been a different story. After a couple of battles Washington would have been forced to surrender. He didn't because groups led by men such as Francis Marion (read about him here: http://en.wikipedia.org/wiki/Francis_Marion ). It was the Kentucky - and other - rifle not the Brown Bess that won the war. An unarmed populous would not have had access to rifles.

No sir, RKBA is an individual right because it is armed individuals who can continue to fight for freedom even after the army has been defeated. A properly functioning militia is only possible if the common man is not only armed but WELL armed.

That being said, I see no special reason why the common man needs fully automatic weapons. In the scenario where an invader has breached the screen of defending armed forces, fully automatic weapons would not be terribly useful. Semi-automatic weapons would - IMO - be more useful. But all the weapons of modern war are available at your friendly neighborhood National Guard Armory so there should be time to break in and obtain such if needed - if for no other reason that to deny them to the invader.

Cy

cbrgator
January 17, 2009, 10:37 PM
Why, in the other 9 Amendments of the Bill of Rights, does it speak to an individual right with the same language, yet in the 2nd, it refers to a 'collective' right?

I have never understood that. Perhaps someone can shed some light...

Because none of the other 9 amendments have a prefatory clause. The 2A has both a prefatory and operative clause. The prefatory clause is, "A well regulated . . . free state." So what people who argue a collective right say is that because it's the only amendment with this type of clause, it is there for a reason or they would have left it out. And the clause in question refers to none other than what? . . . a militia!!

Art Eatman
January 17, 2009, 11:57 PM
SCOTUS. Enriquez-Verdugo. 1992? 1993? It speaks to "the people" and individual rights meanings of the phrase. It enumerates some Amendments as examples. Among them, IIRC, is the Second.

Ohio Gun Guy
January 18, 2009, 12:17 AM
A LOT OF THIS WENT DOWN IF FLAMES WITH HELLER....

Dont keep it alive. The collective right argument was un-abashed Bull CRAP. :banghead:

If it were true, our right to free speach would be collective, and the press would speak for us. - OH one more thing. the 2nd amendment is not about hunting! It may cover hunting, but it is about my right to defend myself from you, criminals, invasions, and yes.....our goverernment (If it ever came to that). :fire:


Continues to preach to the choir......only your not obligated to listen. Carry-on! :o

cbrgator
January 18, 2009, 12:45 AM
SCOTUS. Enriquez-Verdugo. 1992? 1993? It speaks to "the people" and individual rights meanings of the phrase. It enumerates some Amendments as examples. Among them, IIRC, is the Second.

Not really. In that case, they are basically saying that "the people" are Americans. I mean, it goes a little beyond that (resident aliens, etc.), but it isn't clarifying individual rights. Its clarifying who "the people are." Basically this case says that the 2A isn't guaranteed to illegal aliens and the like, but it doesn't settle the collective/individual debate. I don't mean to call you out but I don't want you misquoting the case to an anti who is up on their Constitutional law.

Here is an excerpt:

The Fourth Amendment provides:

265*265 “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.”

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of **1061 art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law ... abridging ... the right of the people peaceably to assemble”) (emphasis added); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words*266 266“person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

OMDP
January 18, 2009, 07:31 AM
Cyborg OMDP, The militia clause in the 2A is not a preamble. It is in fact the reason for the amendment.

I totally agree with you. Though it has been said, even in the Heller case i believe that the first part is a preamble. The RKBA must be seen within the context of the militia, so the right to bear arms is not about self defence, but about the common defence that the militia is there to protect!

legaleagle_45
January 18, 2009, 11:54 AM
The RKBA must be seen within the context of the militia, so the right to bear arms is not about self defence, but about the common defence that the militia is there to protect!

HI OMDP!!

Your position seems to assert what I call the "expansive" sophisticated collective right thesis. This thesis has some strong support in the historical record and I, at one time was a subscriber thereto.

Essentially, this theory asserts that what we have is an individual right which is applicable to and protects almost everyone. The purpose is to provide a source of militia weapons independent of any governmental influence, either malovent or neglegent... A relevant well known quote which exemplifies this view is "the 2nd amendment aint about duck hunting".

Under this view, the Heller court was correct in holding the handgun ban unconstitutional, but was incorrect in holding the safe storage laws unconstitutional.

A careful reading of Miller indicates that this was what SCOTUS was asserting in 1939. The primary (and only) case that they cite to assert that the weapon must have some reasonable relationship to a well regulated militia is Aymette, which is a precise deliniation of this expansive sophisticated collective right thesis. Thus they state: The citizens have the unqualified right to keep the weapon, it being of the character before described, as being intended by this provision.

Have you read that case? If not, you should because it is very interesting. Here is a link:

http://www.guncite.com/court/state/21tn154.html

The restrictive sophisticated collective right is substantially different. It asserts that the right only protects active members of a "well regulated militia" and only protects those weapons which are used by said active militia members in fulfillment of their militia duties.

This restrictive sophisticated collective rights view is an invention of the antigun movement and has no support in either caselaw or legal treatises during the 19th century...

BTW, my current view can be summed up as follows : The 2nd amend aint JUST about duck hunting...:neener:

Art Eatman
January 18, 2009, 12:59 PM
Thanx, cbrgator.

How about this view: The Preamble to the Bill of Rights explains its purpose. "...to prevent the abuse of power by the State..." (I don't have my copy in front of me at the moment.)

So: The BOR is a package of restraints upon the central government, so how can it also be any restraint upon a citizen? Next, if the people at large perceive abusive power on the part of the government such that some recourse to arms is needed, what legal mechanism is inherent in the BOR or the Second Amendment to call out some sort of Militia?

That is, if it is not an individual right, there is no way for the Second Amendment to fulfill its stated purpose as set out in the Preamble.

legaleagle_45
January 18, 2009, 01:12 PM
How about this view: The Preamble to the Bill of Rights explains its purpose. "...to prevent the abuse of power by the State..." (I don't have my copy in front of me at the moment.)

Here is the relevant quote:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

http://www.billofrights.org/

What it is referring to is abuse of powers granted under the constitution. Now, who were granted powers under the Constitution and who had reliqueshed power under the Constitution?

Carl N. Brown
January 18, 2009, 01:39 PM
The militia clause is an exemplar clause, not a limiting clause. One of the reasons, but not the only reason, that "the right of the people" (see Amendments 1 and 4 for context of "right of the people") to keep and bear arms shall not be infringed, is that volunteer forces (militia) are the best security of a free state.

At the time the 2ndA was writ, the common-law purposes of keeping and bearing arms--self-defense to hunting--were considered pretty much self-evident.

Tennessee state attorney general opinions and state supreme court rulings on Article 1 Section 26 RKBA recognise that RKBA is not limited to self-defense or militia service, but includes all common uses of guns including hunting, protecting livestock, etc. The Heller decision actually echoes this prior opinions and rulings.

Also, check the appearance of the phrase "collective right": it was not used in the 1780s when the Constitution was written. I think it first appeared in the writings of . . . . Satan! No, Vladimir Lenin (who sorta resembled Satan).

cbrgator
January 18, 2009, 01:42 PM
Is that Bill of Rights Preamble actually a part of the Constitution? The only place I've seen it written is that link legal eagle posted.

If it is actually a part of the document, then Art, I would say the argument for an individual right is strengthened. But again it's an inference as it is unclear as legaleagle pointed out, just like the 2A itself,

OMDP
January 18, 2009, 02:52 PM
Legaleagle
BTW, my current view can be summed up as follows : The 2nd amend aint JUST about duck hunting...

Carl n Brown
At the time the 2ndA was writ, the common-law purposes of keeping and bearing arms--self-defense to hunting--were considered pretty much self-evident.

I think these two statements deal with the same issue. I feel personally that there is a right to self defence in the BoR, but that this does not come wholy from the 2A, but mainly from the 9A and 10A.
Under common self defence existed and still exists to a certain extent. The founders however were dealing with a specific issue when writing the 2A, which is why they began the 2A with the term "A well regulated militia".
Self defence was so self evident that it did not and still does not require an amendment in a BoRs to tell everyone that it exists.

The process from british common law to american law saw a large jolt in the area of firearms. To the point where self defence, according to some, went from the right to keep arms to being the right to bear arms.


Tennessee state attorney general opinions and state supreme court rulings on Article 1 Section 26 RKBA recognise that RKBA is not limited to self-defense or militia service, but includes all common uses of guns including hunting, protecting livestock, etc. The Heller decision actually echoes this prior opinions and rulings.

The main reason why i cannot accept this view is that the second amendment has the word "arms" written in it, but that does not mean all things to do with arms are protected. That is like saying that the 1A protects everything to do with religion, like sacrifice, coporal mutilation, bigamy and things like that. It says the word "religion".
The 2A is not about everything to do with guns, and i have heard that argument that says everything legal is protected, which is hilarious, because as soon as the govt bans it, it is no longer protected and essentially a waste of time.
Basically an individual can keep arms. If they are not banned from hunting or from self defence, then they can use these arms in these activities.
But carry and conceal is not protected by the 2A, so just because the word "arms" is there does not mean it protects everything to do with arms.

gc70
January 18, 2009, 03:25 PM
Self defence was so self evident that it did not and still does not require an amendment in a BoRs to tell everyone that it exists.

Many do not find the right to self-defense to be either self-evident or fundamental. To far too many, anything not spelled out in excruciating detail in the Constitution does not exist, making a mockery of the 9th and 10th Amendments. When government denies the tools or opportunity for self-defense, or prosecutes people for defending themselves in other than the most narrowly-defined ways, the right to self-defense becomes little more than theoretical.

I believe that the Founders viewed self-defense as so fundamental and self-evident that it did not need to be enumerated in the Constitution. I also believe that the 2nd Amendment was predicated on ensuring the availability of arms for militia use. But in an environment of a "living Constitution" in which our opponents would limit the 2nd Amendment to only militia-related uses, we must fight to ensure that the 2nd Amendment embraces the broader, but not explicitly stated, fundamental right of self-defense.

But carry and conceal is not protected by the 2A

Do you believe that having the tools and opportunity to defend yourself are part of the fundamental right of self-defense?

ZombieHunter
January 18, 2009, 03:40 PM
got to love those "the 2a doesn't apply to modern weapons!" arguments. Too bad the "then the first amendment doesn't apply to the internet or TV!" response has been made into a cliche :(

conw
January 18, 2009, 03:57 PM
Why does it never occur to anyone to look "regulated" up in the dictionary?

If you have a halfway decent hardcopy dictionary, one of the synonyms of "regulated" is "equipped."

wuchak
January 18, 2009, 04:30 PM
What if the1st began."Well educated government officials being necessary for the security of a free state,..."

Would we take that then to mean that the rest of the amendment applied only to government officials?

The whole notion of a collective right was ridiculous. You can't do it, I can't to do it, but somehow when we get together we have the right to do it? Nonsense. Rights exist only at an individual level.

OMDP
January 18, 2009, 04:42 PM
gc70 we must fight to ensure that the 2nd Amendment embraces the broader, but not explicitly stated, fundamental right of self-defense.


I think you should change the "2nd Amendment" for the Bill of Rights. It's far easier to claim the right to self defence through not only the 2nd but also the 9th and 10th. It may seem like people ignore this, but in the world people ignore politics. How many people voted for Obama? 60 million, out of 200 million people eligable to vote and from a populous of 300 million. Only about 115 million, just over one half can be bothered to vote, and how many of them understood the issues at stake? Probably not many.
The fact the SUpreme Court does take the 9th and 10th seriously is evident in the right to privacy, which is not mentioned in the BoR, nor did it seem to exist prior to last century, yet exists.

Friendly, Don't Fire!
January 18, 2009, 05:06 PM
Well President Elect Obama took the train ride that Lincoln took, and he will be taking oath on Lincoln's Bible.

He realizes what rights are and this is essentially a turning point for our country.

If he realizes what rights are, why does he not recognize the right to bear arms?

It seems that some people like to pick and choose what rights are meant to be (and what rights are not meant to be) to satiate their own agenda, if you will.

legaleagle_45
January 18, 2009, 05:17 PM
cbrgator wrote:

Is that Bill of Rights Preamble actually a part of the Constitution?

No. It was part of the resolution referring the BoR's to the states for ratification, but the preamble itself was not ratified because no one ever thought to ratify it. As such, it has equal weight as an act of congress and is documentary evidence of the legislative intent of the BoR's but it is not part of the constitution.

OMDP wrote:

Under common self defence existed and still exists to a certain extent.

The english right to arms pursuant to the english bill of rights contained a self defense component... at least according to Blackstone:

THE fifth and last auxiliary right of the subject,that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

It is interesting to note that the terminology employed by Blackstone indicates two separate and distinct natural rights, those being the natural right of resistance and the natural right of self-preservation. Blackstone is quite consistent in the use of that terminology throughout his entire work. Whenever he uses the terminology self-preservation, he is invariably referring to the individual right of self defense, whether it be in his treatment of the Absolute Rights of Individuals or whether it is contained in his chapters on Homicide. Conversely, when Blackstone uses the terminology resistance, he is invariably referring to objections to the exercise of real or presumed authority, and regardless of whether the resistance is made by an individual or by another group.

Now, what if the recommended right to arms proposals at the state ratifying conventions (and the minority reports proposals) were drafted prior to any argument or debate that the feds may disarm the militia or that they may fail to adequately arm the militia? What if the proposals were merely included as part of a laundry list of the ancient and honored rights of englishman which they were familiar with and were not otherwise motivated by any express fear as you suggest motivated the creation of the 2nd?

:cool:;):D

Al Norris
January 18, 2009, 05:51 PM
The main reason why i cannot accept this view is that the second amendment has the word "arms" written in it ... But carry and conceal is not protected by the 2A ...
This is where I think a lot of people become confused. The amendement does not say, Keep or bear arms, it says, Keep and bear arms

Common English and legal construction inextricably links Keep/Bear together, as one right. Not two separate rights, but one. This type of construction was known and used as much in 1789 as it is known and used today.

One could expand upon that, but I think you see where this would go.

legaleagle_45
January 18, 2009, 06:07 PM
Common English and legal construction inextricably links Keep/Bear together, as one right.

Disagree:

unreasonable searches and seizures

speedy and public trial

cruel and unusual punishments

Each ot the above are considered seperately and not jointly... you can have an unreasonable search without a seizure... A speedy trial which is not public is a violation as is a public trial which is not speedy. A punishment may be cruel without being unusual and vice versa...

OMDP
January 18, 2009, 06:19 PM
Legaleagle
THE fifth and last auxiliary right of the subject,that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

The problem here is one of wording. Having arms, such as are allowed by law and suitable to their condition.
Now what i would say he is talking about here is more, there exists a right to self defence, and as such arms are protected.
The 2A is clear in what it wants. It talks about the militia. Is what Blackstone talking about from the common law right to self defence which then lead to the second amendment, or is the second amendment something completely different whose only link is that fact that the term "arms" appears in both?

Whenever he uses the terminology self-preservation, he is invariably referring to the individual right of self defense, whether it be in his treatment of the Absolute Rights of Individuals or whether it is contained in his chapters on Homicide. Conversely, when Blackstone uses the terminology resistance, he is invariably referring to objections to the exercise of real or presumed authority, and regardless of whether the resistance is made by an individual or by another group.

So as i have claimed, we have self defence which has existed in common law, has been passed over to the US constitution through the 9A and 10A, and we have the protection of the right to resistance through the 2A.


Now, what if the recommended right to arms proposals at the state ratifying conventions (and the minority reports proposals) were drafted prior to any argument or debate that the feds may disarm the militia or that they may fail to adequately arm the militia? What if the proposals were merely included as part of a laundry list of the ancient and honored rights of englishman which they were familiar with and were not otherwise motivated by any express fear as you suggest motivated the creation of the 2nd?

We know that a right to bear arms existed in three state constitutions prior to 1791.
We know that Pennsylvania decided to protect the right to bear arms for the defence of themselves. ANd also that North Carolina and Massachusetts had the bearing of arms protected for one reason and one reason only.
Therefore there is no possible way that two constitutions from 1776 and one from 1780 would not have been completely ignored by the founding fathers, and that the right to bear arms was merely part of a laundry list of ancient rights.
Now the question is, which did the founders follow? They certain did not write anything in the 2A that implies self defence like pennsylvania did, and they changed their clause in 1790, one year before the ratification of the BoR so that it was the right of citizens to bear arms for themselves.
They also did not write in "common defence" or "the defence of the state", however, the first part of the amendment reads "A well regulated militia, being necessary to the security of a free state" and these seems to read a lot more like North Carolina and Massachusetts' clauses. They talk about the security of the free state.

The fact that the word militia also appears in this amendment makes it clear there was some kind of fear. Why protect the militia if there is no reason to? If you just want to protect the rights of individuals to carry on using their guns like they always did, then you would write that. Unless i am just assuming that the founders properly thought out the BoR rather than just stumbling across it by accident.

WHy did the representatives in the house, and probably in the senate, have such a problem with the terminology of the religiously scrupulous part of the amendment?

Mr Gerry said "Now, I am apprehensive that this clause would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous and prevent them from bearing arms."

They did not want the federal government being able to prevent people from being in the militia.

In fact the whole debate on the second amendment was about the effectiveness of the militia. Not on individual rights to self defence or hunting.

OMDP
January 18, 2009, 06:24 PM
Al norris

Common English and legal construction inextricably links Keep/Bear together, as one right. Not two separate rights, but one. This type of construction was known and used as much in 1789 as it is known and used today.

Mr Scott said in the debates in congress on the future 2A "This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms" clearly talking about the right to keep arms.

If you read about what was going on in congress at this time, bear arms and keep arms were often, if not always used as separate entities.

cs133atom
January 18, 2009, 06:50 PM
Many interesting interpretations here; try Schulman's control out:

"A well-schooled electorate, being necessary to the education of a free State, the right of the people to keep and read Books, shall not be infringed.'

"My questions for the usage analysis of this sentence would be,

"(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

"(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' _only_ to 'a well-educated electorate' -- for example, registered voters with a high-school diploma?" or does it apply to all of the people?

Just food for thought!

Enjoy!

C

cbrgator
January 18, 2009, 06:54 PM
"A well-schooled electorate, being necessary to the education of a free State, the right of the people to keep and read Books, shall not be infringed.'

Lovin' that.

legaleagle_45
January 18, 2009, 07:07 PM
The problem here is one of wording. Having arms, such as are allowed by law and suitable to their condition.

Yep, it also was restricted to protestants. No such limitations on this right to arms appears in the 2nd. Have you read the commentaries of St George Tucker on this subject?

The 2A is clear in what it wants. It talks about the militia.

The 1st talks about the press, does that mean religion is not protected also? The 1st deals with various related topics... all dealing with an underlying concept of freedom of conscience. The same analysis can be performed for the 4th, 5th, 6th, 7th and 8th... The natural right of resistance is the "militia right", it is a "related right" and therefore both are combined in the same amendment.

Is what Blackstone talking about from the common law right to self defence which then lead to the second amendment, or is the second amendment something completely different whose only link is that fact that the term "arms" appears in both?

Blackstone is describing what is protected by the English Bill of Rights. The right of self defense is not an "auxillary right", but a natural "unalienable right", according to Blackstone. The auxillary rights described by Blackstone serve to enhance and protect the underlying unalienable right.

So as i have claimed, we have self defence which has existed in common law, has been passed over to the US constitution through the 9A and 10A, and we have the protection of the right to resistance through the 2A.

Blackstone believed that the right to arms protected both. I believe that is what was intended by the 2nd also.

We know that a right to bear arms existed in three state constitutions prior to 1791.

Actually 4, if you include Vermont's declaration of rights adopted in 1777:

That the people have a right to bear arms for the defence of the themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

ANd also that North Carolina and Massachusetts had the bearing of arms protected for one reason and one reason only.

Agree with respect to North Carolina, disagree with respect to Mass. North Carolina was deemed "imperfect" and was not emulated by any other state."

these seems to read a lot more like North Carolina and Massachusetts' clauses.

Massachusetts, but not North Carolina... which of course brings us to "keep arms"....

Why protect the militia if there is no reason to?

You will never, ever, see me say that the militia is not part of the reason for the 2nd. It needed protection for the same reason they protected the right to a jury trial.... It was part and parcel of the laundry list of ancient and honored rights of englishmen.

WHy did the representatives in the house, and probably in the senate, have such a problem with the terminology of the religiously scrupulous part of the amendment?

You of course realize that "keep" is not part of that clause?

Mr Gerry said "Now, I am apprehensive that this clause would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous and prevent them from bearing arms."

What is your take of this:

Mr. SCOTT objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He said, if this becomes part of the constitution, we can neither call upon such persons for services nor an equivalent; it is attended with still further difficulties, for you can never depend upon your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army.

???

Not on individual rights to self defence or hunting.

See the above quote from Scott...:cool:

Cyborg
January 18, 2009, 07:26 PM
Folks, what any or all of us think the 2A means could not be less relevant. WE THE PEOPLE are not in charge here. I am not sure if we ever were. Those of us on the right are definately not in charge. The left has a virtually unassailable majority in both houses of congress PLUS it has the White House. With the loss of even one conservative SCOTUS AJ, the left would have total control of all the levers of power. The soon to be occupant has come to power with a message of change. He's gonna have to start making good on some of those promises pretty soon or it will get ugly real fast.

Me, I'm gettin ready to hunker down. Absent the rise of a local Francis Marion if the fertilizer impacts the wind machine, I plan to lie low and protect my family. The people in power do not give a fig for what the constitution really means. They are far less concerned with what it means than how it can BE a means to achieve their socialistic goals. They will soon have a national police force in place (they call it a "national security force") that will be "just as powerful, just as strong, just as well-funded" as the armed forces whom the left does believe it can rely on "to achieve the national security objectives [they]'ve set."

"When a small man casts a long shadow darkness is near." We got some mighty small folks castin LOOOOOOOOONNNNNNNGGGGG shadows these days. I reckon darkness ain't far away.

Cyborg
Keep your friends close and your enemies at greater than 7 yards.

legaleagle_45
January 18, 2009, 08:56 PM
A LOT OF THIS WENT DOWN IF FLAMES WITH HELLER....

Agreed, but there is one last remaining remnant that still survives and may be of importance to the incorporation debate....

Consider this quote from Heller:

The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep
and bear arms, so that the ideal of a citizens’ militia would be preserved....But the threat that
the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.”

In Nordyke, the attorney representing Alameda County used this quote to argue against incorporation. Essentially, the argument goes like this:

The 2nd was "animated" by a desire to protect the militia, and the militia only, from federal action. The purpose of the right is to protect a state institution and is therefore not subject to incoporation.

In short, the collective rights argument has undergone an evil mutation. The argument now is that the 2nd protects an individual right but for purely a collective purpose....

The collective rights theory is not dead... it is sorta like all them awful Friday the 13th movies where Jason always comes back...:what::fire::banghead:

cbrgator
January 18, 2009, 09:20 PM
The argument now is that the 2nd protects an individual right but for purely a collective purpose....

Hate if you must, but I honestly don't think that is wrong. That IS what the 2A was for. It was for the people to be able to band together and overthrow an oppressive government. Can you do that by yourself? The only people I know that can do that are some characters that Stallone, Schwarzy, and Willis have played. Being an individual right for a collective purpose still means its an individual right. It's been said 1000 times, the 2A isn't about hunting. I don't care what purpose they want to attach to my right, as long as it remains my RKBA.

legaleagle_45
January 19, 2009, 12:02 AM
That IS what the 2A was for.

IMHO it is only one of the reasons for the 2A... but not the only reason for the 2A. Remember that Blackstone termed the english right to arms as consisting of two components... the right of resistance (which would be the "collective" purpose) and the right of self preservation (which would be the wholly individual right of self defense).

I don't care what purpose they want to attach to my right, as long as it remains my RKBA.

The thesis you are employing will give the antis an opening to defeat incorporation....

cbrgator
January 19, 2009, 12:20 AM
The thesis you are employing will give the antis an opening to defeat incorporation....

No, because then it would no longer remain my right. Or at least COULD no longer remain my right, depending on the jurisdiction. My point is that I don't care for what reason anybody wants to provide for allowing me to possess, carry, and use my guns, as long as I can do those things. If its for protection against the government, for self defense, for recreation, etc.The reasons can be whatever you want. Just don't touch my stuff.

legaleagle_45
January 19, 2009, 12:27 AM
My point is that I don't care for what reason anybody wants to provide for allowing me to possess, carry, and use my guns, as long as I can do those things.

Dang pragmatist, always messing with those who wish to justify the pragmatic result with theoretical justifications which will be accepted by them dudes and dudettes who wear them funny long black dresses....:)

cbrgator
January 19, 2009, 12:31 AM
Haha. :) I'm all for principle and Con law was my favorite class last semester, but at the end of the day, I'm just a guy who likes his guns. Hopefully they'll leave us alone so I don't have to incite a revolution and use the 2A for what it was meant for!

BHP FAN
January 19, 2009, 12:34 AM
Y'all are worried about the wrong tidbit.The tidbit that should be worrisome is the bit about ''reasonable restrictions''.That's the bugger.What if they decide a single shot farm gun in 12 ga. is all that we ''reasonably'' need?

cbrgator
January 19, 2009, 12:38 AM
You are right. Sorta. We DO need to be worried about what "reasonable restrictions" constitute. OTOH, the Heller court said a handgun ban was unreasonable, so that becomes the floor. We need not worry about single shot 12 gauges. Our worries are more along the lines of an AWB, caliber restrictions, full registration, ammo serialization, CCW, to name a few.

legaleagle_45
January 19, 2009, 12:39 AM
Y'all are worried about the wrong tidbit.The tidbit that should be worrisome is the bit about ''reasonable restrictions''.That's the bugger.What if they decide a single shot farm gun in 12 ga. is all that we ''reasonably'' need?

That is the next battle. The current battle is incorporation. If we do not win incorporation, Heller will basically be a footnote in constitutional history.

cbrgator
January 19, 2009, 12:47 AM
legaleagle, are you a lawyer? If so, do you mind me asking what/where you practice?

legaleagle_45
January 19, 2009, 12:55 AM
legaleagle, are you a lawyer?

Lucky for you that truth is an absolute defense to any action for defamation...

If so, do you mind me asking what/where you practice?

Primary field of "real" work involves real estate (transactional and litigation), business (ditto), bankruptcy and tax ... however, I have been know to do a little pro bono work on 2nd Amend issues. I am located in Oregon.

cbrgator
January 19, 2009, 01:04 AM
How do you like real estate law? That (at the moment) is one of my top choices, granted I am only a 1L. Is there any kind of special info I should consider?

legaleagle_45
January 19, 2009, 01:10 AM
How do you like real estate law? That (at the moment) is one of my top choices, granted I am only a 1L. Is there any kind of special info I should consider?

First year they scare you to death, 2nd year they work you to death and 3rd year they bore you to death...

Property law is the oldest branch of the law. I found it fascinating because I am also a history nerd. Beware of the rule against perpetuities...:cool:

cbrgator
January 19, 2009, 01:16 AM
Thank you I appreciate it. They certainly scared me to death last semester. I'm not so intimidated anymore though, I think I have a good grip on it now. Anyway, we are really off topic. It's an individual right!

ants
January 19, 2009, 01:40 AM
I'm no lawyer or student. I'm just a guy.

I don't remember the use of 'collective right' in the public debate about guns until the nation debated the Gun Control Act of 1968. In all my high school and college courses about the constitution and its origins, I found no reference to 'collective right'. It seems to be a fairly new concept.

I do see the concept of collective rights in international law, regarding the right to self-governance of an oppressed ethnic minority within a geographic region of a nation dominated by single oppressive majority. But I don't find collective right intrinsic to American law.

I do see the concept of collective rights creeping into the American system regarding institutionalized discrimination, disability rights, and so forth. But its application as a justification for gun control is very, very unique. In fact, it's probably a misuse of the concept.

Can any of you learned folks shed light?

cbrgator
January 19, 2009, 01:51 AM
The concept is wrong. Flat out, 100% wrong. The argument at its core does not make sense. The modern collective argument is as follows:

Premises
1. RKBA is tied to service in a militia.
2. We have no militia today, closest equivalent is the National Guard.
Conclusion: Join the National Guard if you want to shoot guns.

My problem:
There are two forms of militia - organized and unorganized. The Militia Act of 1903 clarifies this by saying that every person not in an organized militia such as the National Guard is part of the unorganized militia.

The national guard is a quasi-federal organization. I hardly believe that the 2A was enacted in order to prevent the government from disarming itself. What sense would that make? It was enacted to protect the unorganized militia comprised of you and I, and all other average citizens.

OMDP
January 19, 2009, 10:28 AM
cs133atom

"A well-schooled electorate, being necessary to the education of a free State, the right of the people to keep and read Books, shall not be infringed.'

"My questions for the usage analysis of this sentence would be,

"(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

"(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' _only_ to 'a well-educated electorate' -- for example, registered voters with a high-school diploma?" or does it apply to all of the people?

I would say that the wording of the amendment is important, but the manner in which it is written is less so.
The term "bear arms" means what?
In the memorandum for the attorney general under bush, they claimed that bear arms meant things like hunting, self defence, carry and conceal, because the people are bearing arms at the time. Oh so true.
But then put this term in the context of the second amendment. All of a sudden the term bearing arms only seems to take on ONE of these meanings. This is normal in the english langauge for context to make the word mean one thing or something completely different.
The founders used the term "bear arms" whilst talking about the second amendment only in terms of being able to be in the militia. In fact

"but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

Is synonymous with

"but no person religiously scrupulous shall be compelled to bear arms."

And i think it is here that some people have a problem. The actual construction is simple enough, though some might try to make it say something it is not.

OMDP
January 19, 2009, 11:05 AM
Legaleagle

Yep, it also was restricted to protestants. No such limitations on this right to arms appears in the 2nd.

Which tells us one thing, that the 2A is not a direct translation from british common law on the issue of weapons. Changes were made, not only deliberatly, but also because in the near 100 years and the differing land that the americans were on, the whole situation shifted.

The 1st talks about the press, does that mean religion is not protected also? The 1st deals with various related topics... all dealing with an underlying concept of freedom of conscience. The same analysis can be performed for the 4th, 5th, 6th, 7th and 8th... The natural right of resistance is the "militia right", it is a "related right" and therefore both are combined in the same amendment.

Of course it is. But i see the right of resistance as being protected through the right to keep and bear arms. It is protected by default almost.

Blackstone is describing what is protected by the English Bill of Rights. The right of self defense is not an "auxillary right", but a natural "unalienable right", according to Blackstone. The auxillary rights described by Blackstone serve to enhance and protect the underlying unalienable right.

Although the "unalienable right" was not considered so "unalienable" in England. This was something that began to appear more and more and the americans were the ones who made it more "unalienable" than it had ever been.
But the point i am making is this. Is there a direct corrolation between this right to self defence in england that was asserted in the English BoR, to the introduction of the second amendment 100 years later?
Or, is there a direct corrolation between the ENglish BoR and the 9A and 10A?

Blackstone believed that the right to arms protected both. I believe that is what was intended by the 2nd also.

I have come across little if no evidence to suggst this. I would say that pennsylvania also believed this and those in the process of writing and passing the 2A had sufficient knowledge of what was going on in pennsylvania to make this clear in the 2A, but they did not. WHy not? That is a question that may be unresolvable.

But certainly there were two groups at the time, one which saw the right to bear arms as being for personal defence and those which saw it only for the defence of the state.
Which did the 2A follow?

Actually 4, if you include Vermont's declaration of rights adopted in 1777:

Well yes, which is just another reason to ask why the founders did not use the phrase "the people have a right to bear arms for the defence of themselves and the State".

Agree with respect to North Carolina, disagree with respect to Mass. North Carolina was deemed "imperfect" and was not emulated by any other state."

WHy do you not agree with me about massachusetts? North Carolina may have been deemed inperfect, but then they obviously knew what they wanted, you would have thought.

You of course realize that "keep" is not part of that clause?

Yes of course. And i know where you are going with this. Your claim that the right to keep arms inherently holds the right to self defence.
I disagree. I think that the changes that went on at the time lead to a divergence. That the right to self defence was protected by the 9A and 10A.
The first version of the amendment was separated by a semi colon, the RKBA and the religiously scrupulous part. The second was not. The third was, the fourth was not, then they took out the religiously scrupulous part.

What exactly are the similarities between the rights present in the English BoR and those that made it into the 2A? Almost nothing.
DId the founders share the view that the right to keep arms was a protection of the right to self defence from english common law, or were they more interested in protecting the right of people to keep arms so they could have an effcient militia?

As with the previous post where i have said that bearing of arms can mean many things but due to the context of the amendment it means only that individuals can be in the militia. I would also suggest that the context of the amendment also suggests that what is protected is only the right to keep arms, so that the militia can have a ready source of weapons.

What is your take of this:

Quote:
Mr. SCOTT objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He said, if this becomes part of the constitution, we can neither call upon such persons for services nor an equivalent; it is attended with still further difficulties, for you can never depend upon your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army.

The first part is simple, he did not want people able to exclude themselves. Obvious in the light of the 1792 militia act which could force people to be in the militia.
I would also say that the he uses the term "keeping arms" in the sense of having a recourse to a standing army, ie, with the weapons kept by individuals there is a ready source of arms for the militia.
You cannot depend on the militia, quite true, does it exist in the USA today? is a question many people ask, because the militia at present is almost non-existant. SO individuals with arms means that the militia exists in spirit but is not deemed necessary in the circumstances (and maybe i should add a "yet" to that).

The one thing i am not really able to get around is why preventing people bearing arms would lead to the violation of the keeping of arms. I can only assume that he would think that if the US govt could prevent people from being in the militia then there is no point in them having guns, so the feds could prevent this. Makes you wonder exactly what he did say.

OMDP
January 19, 2009, 11:14 AM
I have been know to do a little pro bono work on 2nd Amend issues.

What he wants to say is......

Cbrgator
My problem:
There are two forms of militia - organized and unorganized. The Militia Act of 1903 clarifies this by saying that every person not in an organized militia such as the National Guard is part of the unorganized militia.

My problem is this. If the govt can take away the arms of everyone, who is there to defend when it is really needed? If the govt has taken away the arms of everyone this is when it is needed.
The 2A is the last and ultimate check and balance on the govt, it is needed at the times of the worst possible govt, this being a time when they are most likely to take away the guns.

What if they decide a single shot farm gun in 12 ga. is all that we ''reasonably'' need?

Impossible. If the feds change the market too much, then it is unconstitutional. There is a fine line somewhere, but basically individuals have to be able to gain arms at an affordable price, otherwise they are not able to keep them, and with just one type of weapon, the price will probably go up, because it is a monopoly.

Gungnir
January 19, 2009, 12:06 PM
Brady interpretation from expvideo
A well regulated people, being necessary to the security of a free state, the right of the militia to keep and bear arms shall not be infringed."

I read this as an oxymoron, Stalin's Russia had a well regulated people, so did Hitler's Germany, both could not be considered free states as we think about them.

RKBA has further implications, in other areas, for protection of enemies foreign AND domestic. Remember back in 1776 the British were DOMESTIC. So hypothetically since the National Guard (our perceived militia although in reality a legal recognized military army, the same as Army/Navy/AF) can be called up and ordered directly by the President (against a 50-0 vote from state Governors)

One final comment on "Well Regulated Militia" I agree that given the language of the time this was common parlance for working well (a well regulated watch, or steam engine, etc.). However further the 2A does not implicitly or explicitly give explanation are to who regulates the militia if you use modern parlance. The assumption that the militia is regulated by Federal or State government is just that, question is, is this assumption right, would Benjamin Franklin (my personal favorite), Thomas Jefferson, or George Washington agree with that? I suspect not, if they did the Revolutionary war would have been very short.

"We rebel"
"You're a militia, controlled by the government, we order you to return to your homes."
"Oh didn't think of that, lets go home, Damnit!"

legaleagle_45
January 19, 2009, 12:55 PM
Which tells us one thing, that the 2A is not a direct translation from british common law on the issue of weapons.

Of course not. Most of our rights trace their lineage to the english common law and the English Bill of Rights but are much more expansive, rather than restrictive. For example, free speech in the English Bill of Rights only applied to speeches made in Parliament. I consider the English version to be more in the nature of the "grandfather" rather than the "parent" ... a direct lineal ancestor, but removed by one generation.

But i see the right of resistance as being protected through the right to keep and bear arms. It is protected by default almost.

I do not disagree that that the right of resistance is protected by the 2nd. I assert that it is not the only thing protected by the 2nd.

Although the "unalienable right" was not considered so "unalienable" in England.

Actually, during the time of Blackstone, it was. Restrictions on the exercise of that right is of more recent vintage. The UK has been moving towards a "proportionality" standard for self defense... this concept would have been absurd to Blackstone.

Well yes, which is just another reason to ask why the founders did not use the phrase "the people have a right to bear arms for the defence of themselves and the State".

Because the keep right was already there.

WHy do you not agree with me about massachusetts?

Because of what I know about John Adams who wrote the Massachusetts declaration. He was one of the top lawyers in the colonies and even succesfully represented the British Troops involved in the Boston Massacre based upon the theory of self defense. He was certainly well versed in Blackstone and he was certainly well versed in the abuses associated with the English game laws and he was most assuredly familiar with the line of english case law exemplified by Rex v Gardner.

North Carolina may have been deemed inperfect, but then they obviously knew what they wanted, you would have thought.

It was considered at the time an oversight. North Carolina was the first... it used "bear" only terminology. Every subsequent state which employed that model inserted an addition to include "for themselves" or similar language while maintaining "the "state" language. None of the states which employed the "keep and bear" model inserted such a modifier until Texas did so following the civil war... almost 100 years removed from the BoR's. So, what we have is that every one of the pure "bear" states (except NC) sought to protect self defense, while none of the "keep and bear" states thought self defense was important.... I find that conclusion to be untenable and thus it is strong evidence that "keep" means a bit more.

I would also say that the he uses the term "keeping arms" in the sense of having a recourse to a standing army, ie, with the weapons kept by individuals there is a ready source of arms for the militia.

Impossible. Read the debates a bit more with a view towards the debates concerning "pay for a substitute". Those that were actually religiously scrupulous would not pay for a substitute either and for the same religious reasons... they certainly would not provide arms for the cause for the same religious reasons... So why would their right to "keep arms" be protected?

The one thing i am not really able to get around is why preventing people bearing arms would lead to the violation of the keeping of arms.

Are you familiar with the Test Acts?

I can only assume that he would think that if the US govt could prevent people from being in the militia then there is no point in them having guns, so the feds could prevent this.

Do you think he considered this a good thing or did he consider it a "violation" of the right to keep arms? If the latter, why would the 2nd protect that right if the arms protected would have no use in the militia? What possible use could they have which is protected by the keep right?

BTW, did you see how Scalia handeled the bear issue? His method is totally consistant with the religiously scrupulous clause, yet implicates self defense in the bear language... ingenious. I guess that is why he is on SCOTUS and not me LOL. I had certainly never thought of that before, but Ieyasu had and he agrees with Scalia's formulation.

legaleagle_45
January 19, 2009, 01:10 PM
I don't remember the use of 'collective right' in the public debate about guns until the nation debated the Gun Control Act of 1968.

The collective right thesis of the 2nd Amendment first reared its ugly head in City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905). It was a theory enunciated sua sponte from the court as niether side in that case had briefed it... because no other case or legal treatise before had even thought it a viable legal doctorine.

Art Eatman
January 19, 2009, 02:14 PM
cbrgator, I figure that there had to be a reason, a purpose for the BOR. To me, the Preamble, written by the folks who wrote the Constitution, explains why they put the BOR into it. That, therefore, takes me back to my argument I made in my earlier post.

Next is the idea that the writers had a good command of the language. Further, their own definitions of words were consistent. So, my question then is, how could "the people" be singular in one amendment and collective in another? The writers did not play hopscotch with the language.

Last, Jefferson is credited with doing much of the writing of the BOR. (And Adams?) If we look at other writings of Jefferson and Adams on the subject of firearms, we find that they believed that individuals should have the RKBA. How, then, could the 2A have any meaning other than that espoused by us and the NRA--or by Jefferson, himself?

gc70
January 19, 2009, 02:23 PM
Last, Jefferson is credited with doing much of the writing of the BOR.

Madison actually drafted the initial proposal for the Bill of Rights. Madison's draft was certainly influenced by Jefferson, with whom he frequently corresponded. Jefferson was probably instrumental in swaying Madison from being an opponent of a Bill of Rights during Constitutional ratification to being its major proponent in Congress.

OMDP
January 19, 2009, 02:25 PM
Legaleagle

Of course not. Most of our rights trace their lineage to the english common law and the English Bill of Rights but are much more expansive, rather than restrictive. For example, free speech in the English Bill of Rights only applied to speeches made in Parliament. I consider the English version to be more in the nature of the "grandfather" rather than the "parent" ... a direct lineal ancestor, but removed by one generation.

Sure, and i agree. However i am not sure the 2A expands on everything that had anything to do with firearms under british common law.

Actually, during the time of Blackstone, it was. Restrictions on the exercise of that right is of more recent vintage. The UK has been moving towards a "proportionality" standard for self defense... this concept would have been absurd to Blackstone.

As far as i can tell from history, rights were viewed in contrast to the god given rights and powers held by the king that kings like James I believed he had, this only came about from the time of Henry VIII for obvious reasons, and certainly this was not the view in Scotland. Now, there are only a few Kings down the line until we get to the ENglish BoR which was in essence saying that the monarchy had gone too far and they should not be allowed to do this. It was a mere power game. Now perhaps Blackstone was a bit the like the french philosophers and was trying to impliment this kind of thinking upon people, but i am not sure that in England it was thought of in this manner by all.

Because the keep right was already there.

AH, but then we get onto the arguments of the federalist v. anti-federalists where one side believed they did not need a BoR because these rights existed and should not be trodden on, but the realisation that something did need to be written down.
All of the rights of the BoR already "existed", what they were doing was protecting these rights, so why did the founders not feel the need to specifically protect the right to defend oneself through the 2A?

Because of what I know about John Adams who wrote the Massachusetts declaration. He was one of the top lawyers in the colonies and even succesfully represented the British Troops involved in the Boston Massacre based upon the theory of self defense. He was certainly well versed in Blackstone and he was certainly well versed in the abuses associated with the English game laws and he was most assuredly familiar with the line of english case law exemplified by Rex v Gardner.

I have two points to make. The first is, if Adams was so powerful and this was not his view, then how did "The people have a right to keep and to bear arms for the common defence." get into the massachusetts declaration of rights 1780? And the second is, perhaps this is because the way i am saying it is, they wanted a protection for the defence of the nation and so they had the RBA clause, but did not feel the need to protect something else, the right to self defence because either it was so self-evident or because of other reasons.

It was considered at the time an oversight. North Carolina was the first... it used "bear" only terminology. Every subsequent state which employed that model inserted an addition to include "for themselves" or similar language while maintaining "the "state" language.

Except also massachusetts. Now, i would suggest that after 1791 states actually tried to copy the 2A or at least take from the principles of this.

Impossible. Read the debates a bit more with a view towards the debates concerning "pay for a substitute". Those that were actually religiously scrupulous would not pay for a substitute either and for the same religious reasons... they certainly would not provide arms for the cause for the same religious reasons... So why would their right to "keep arms" be protected?

I am not sure what point you are trying to make here. Why would someone's right to keep arms be protected when they are not willing to bear arms?

Mr Sherman spoke about this. "because there are men amongst the quakers who will turn out, notwithstanding the religious principles of this society, and defend the cause of their country."

The question here is WHO is going to be someone useful for keeping arms for the militia and who is not? Well you might have thought that someone who will not bears will also not give arms, but then you never know. Maybe someone would give up their arms to the militia, but for religious reasons not fight.

Are you familiar with the Test Acts?

A little, you have told me about them before but i think i was unable to find enough information on them to be able to make an informed decision. I know you have a few quotes on them but i would like to be able to see the whole context, little snipets can be misleading.

Do you think he considered this a good thing or did he consider it a "violation" of the right to keep arms? If the latter, why would the 2nd protect that right if the arms protected would have no use in the militia? What possible use could they have which is protected by the keep right?

I thought that was where you might be trying to go. As i have pointed out, the founders feared that the govt would blanket prevent people joining the militia for religious reasons, but also that they would force quakers to pay even though they were willing to fight.
A person who did not fight would still have guns that could be used, confiscated by the militia, for the militia was not bound by the 2A, only the feds were/are.
The right to keep arms, with the aim of providing arms for the militia, was not infringed upon criminals at the beginning. Why would the feds allow criminals to keep and bear arms, when now they will not?
Lastly, it is probably a matter of fairness that a right is given to all and for them to lose in the courts. A religious person who did not want to be in the militia, may not be doing his duty, but still had the right. Now a religious person who did not keep a gun, may not be doing their duty but still had the right. If the Federal govt came and took guns away from an individual because they would not join the militia, then they were infringing on the right before due process, regardless of whether the person would give up their gun to the militia or not.
The 2A protects the right to own a gun, regardless of militia status or willingness to give up arms to the militia. It is what it protects. It does not protect other things like carry and conceal that the person might actually do.
In modern life this is even more exaggerated. Who keeps a gun so the militia has weapons? Probably nobody. Who keeps a gun so they can carry and conceal? QUite a lot. Does this mean carry and conceal IS protected and keeping arms for the militia is not? No chance.


BTW, did you see how Scalia handeled the bear issue? His method is totally consistant with the religiously scrupulous clause, yet implicates self defense in the bear language... ingenious. I guess that is why he is on SCOTUS and not me LOL. I had certainly never thought of that before, but Ieyasu had and he agrees with Scalia's formulation.

I always thought it a little strange that self defence came under keep. I do not agree with Scalia, he makes one big error in his reading of the 2A, and it seems to be a political one, that came through from the memorandum to the attorney general. Just because "Bear arms" can mean to carry a gun, does not mean that is what it means in the 2A. This is like saying that the word "Stool" always means an impliment to sit on, no matter what the context of the language is.
I guess that is why he is on SCOTUS, because he also knows how to play the political game.

legaleagle_45
January 19, 2009, 02:31 PM
Madison actually drafted the initial proposal for the Bill of Rights.

George Mason is given equal credit for drafting the BoR's. His master draft created prior to the Virginia ratifying convention was adopted almost verbatim by Virginia. The Virginia proposal was, in turn, nearly identical to the proposals advanced by Madison in the first Congress.

gc70
January 19, 2009, 03:12 PM
The Virginia proposal was, in turn, nearly identical to the proposals advanced by Madison in the first Congress.

You, sir, are correct.

I must say that I like Madison's initial proposal better than the final amendments as adopted. Editing the language of the Constitution to reflect the Amendments' changes would have placed everything into context better than the Amendments as adopted.

MT GUNNY
January 19, 2009, 04:05 PM
weedwhacker; I see your Point. whether you believe the right is collective or Individual, it still takes an Individual to make a Collective.
Even if a person insists that the Militia is the Collective, the Above still applies, it takes Individuals to form a Militia. The Word Regulation Doesn't Mean Government. There is also the Phrase "The Right of the People" Again It take Individuals to make the People.

Logic Trumps all in this matter, you could say that the Right is Both Individual and Collective. In a argument one could say that if it is a collective Right then Individuals would be Required to Own a Firearm!

All that being said I believe its a Individual Right Ordained buy a natural Right to Protect and Provide Sustenance

legaleagle_45
January 19, 2009, 04:25 PM
Sure, and i agree. However i am not sure the 2A expands on everything that had anything to do with firearms under british common law.

Can you name any other portion of the BoR's that provided less protection than that protected by the English BoR's and the english common law? Of course I realize that this does not prove anything, at best it is circumstantial evidence...

As far as i can tell from history, rights were viewed in contrast to the god given rights and powers held by the king that kings like James

You have that right. Two competing theories of government were in conflict. The divine right of kings and the social contract-natural law theories of Hobbes and Locke. The glorious revolution denoted the total defeat of the divine right theory and the ascendicy of the social compact-natural law theory, at least in England.

if Adams was so powerful

Adams wrote it. Adams was not a fan of what I call "the insurrectionist" theory. That a mass uprising would be protected. His views on this subject are exemplified by this quote:

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.

Note that Adams is not opposed to revolution, he is merely opposed to chaotic revolution. This view was shared by Madison as exemplified by Federalist #46. As you might suspect, such a view was not shared by others... Sam Adams, for example.

Now, i would suggest that after 1791 states actually tried to copy the 2A or at least take from the principles of this.

Not really. You might think that would have been the case and I found it surprising that it was not the case. The pure "bear" provisions substantially dominated the landscape. Here is a link to a chronological listing of the various right to arms provisions found in state constitutions:

http://www.law.ucla.edu/volokh/beararms/statedat.htm

I am not sure what point you are trying to make here. Why would someone's right to keep arms be protected when they are not willing to bear arms?

Exactly my point. The only rational explanation is that the right to keep arms implicates a use other than bearing arms.

The question here is WHO is going to be someone useful for keeping arms for the militia and who is not? Well you might have thought that someone who will not bears will also not give arms, but then you never know. Maybe someone would give up their arms to the militia, but for religious reasons not fight.

You are presuming a narrow justification based upon your initial premise. Point in fact, the primary religious sect that was contemplated by this clause was the quakers. They would have been similarly opposed to paying for a substitute as they were to actually bearing arms... and they would also be similarly opposed for lending their arms to support the cause. Thus the question arises why would anyone care if their right to keep arms be violated. Why did Sherman express such a concern? I will tell you that the quakers were not opposed to hunting, nor were they opposed to self defense so long as it did not involve using force against another human. They were free to use firearms to kill bears or wolves in self defense without violating their religious principles. BTW, interesting factoid... Daniel Boone was raised in quaker family.

A little, you have told me about them before but i think i was unable to find enough information on them to be able to make an informed decision.

Start here:

http://en.wikipedia.org/wiki/Test_Act

Then keep in mind that every colony had corollary "test acts"... not identical, but similar in nature to the result of the English Test Act. Those who passed the "Test Act" requirements were considered part of the body politic and could vote, hold pubic office, sit on juries, be able to engage in certain professions and the like. There were duties associated with being a member of the body politic which included militia duty. One of the rights reserved to members of the body politic was the right to keep arms... I can not provide you with an internet source which you can access for the exact wording of those laws... However, and if you are interested there is an interesting debate between Saul Cornell (historian funded by the Joyce foundation) and Robert Chuchill (another historian who is unafilliated with any organization that I am aware of). The test acts are discussed in detail therein. Cornell originally asserts that the right to keep arms was dependant upon taking an oath of feality to the colony and therefore proclaims it can not possibly be a right. Churchill totally destroys him by pointing out that the oath was the entry way to the body politic and all of the rights associated with that membership were subject to the same oath of feality. There is a lot more than test acts involved in the debate so you will have to dig through it, but you can find it here:

http://www.historycooperative.org/journals/lhr/25.1/index.html

One cautionary comment about Cornell... Do not take anything he says at face value. He has been known to bend, if not break the truth, to suit his objective, which is to eliminate the 2nd as any barrior to gun control. I will provide you with one example.

Cornell asserts (in his very last article on the above linked page) that he has had access to the unpublished papers of St George Tucker:

The proper place to begin any analysis of Tucker's thinking about the right to bear arms is his unpublished William and Mary law lectures delivered shortly after the Second Amendment was ratified... Tucker viewed the Second Amendment as a concession made to Anti-Federalists to assuage their fears that the state militias might be disarmed. Tucker's comments are not only the earliest known commentary on the meaning of the Second Amendment by an important legal theorist, but they provide one of the most forceful statements of a states' rights conception of this provision of the Bill of Rights. There is nothing in Tucker's earliest writings to support Churchill's claims about an expansive individual right to keep arms.... Tucker's thinking on this issue obviously evolved in the years between writing his law lectures and publishing his monumental study of Blackstone in 1803. In his published work, Tucker greatly expanded his original discussion of the Second Amendment and elaborated his original thinking in light of the constitutional and political developments of the 1790s.

Ok Saul, this is the quote from 1803 which you claim was influenced by political developments of the 1790's and does not appear in his original unpublished notes which were made contemporanious with the 2nd amend ratification:

"This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."

http://www.lonang.com/exlibris/tucker/tuck-1d6.htm

Now let us take a look at the unpublished notes to which Cornell refers, and which are now published (much to Cornell's chagrin, I am sure):

The right of the people to keep and bear arms shall not be infringed – this may be considered as the palladium of liberty. The right of self defense is the first law of
nature. In most governments it has been the study of rulers to abridge this right with the narrowest limits. Where ever standing armies are kept up & the right of the people to bear arms is by any means or under any colour whatsoever prohibited, liberty, if not already annihilated is in danger of being so. – In England the people have been disarmed under the specious pretext of preserving the game. By the alluring idea, the landed aristocracy have
been brought to side with the Court in a measure evidently calculated to check the effect of any ferment which the measures of government may produce in the minds
of the people. -- The Game laws are a [consolation?] for the government, a rattle
for the gentry, and a rack for the nation.

The text is in an upcoming law review article at Northwesern Law School and is available to down load here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1284475

Wow! I have rambeled on for far too long... sorry.

Master Blaster
January 19, 2009, 04:32 PM
No Such Thing.

The Government has powers, granted by the people.
The people have rights, rights that are not to be trampled or compromised.
The peoples rights should be absolute limitations on the governments powers.

Collective rights are a way of saying government power grab.:fire:

OMDP
January 20, 2009, 10:57 AM
Legaleagle
Can you name any other portion of the BoR's that provided less protection than that protected by the English BoR's and the english common law? Of course I realize that this does not prove anything, at best it is circumstantial evidence...

Though i guess this is also a matter of interpretation of whether there are more protections or less, considering everyone is protected in the 2A, and not everyone was in the English BoR.

Note that Adams is not opposed to revolution, he is merely opposed to chaotic revolution. This view was shared by Madison as exemplified by Federalist #46. As you might suspect, such a view was not shared by others... Sam Adams, for example.

Which seems to confirm my theory that the reason why the bearing of arms means that your right to be in the militia is protected and nothing else, is that a revolution takes place under the command of the officers chosen by the states, with the manpower of the general population.
No constitution should bring about its own downfall.

Not really. You might think that would have been the case and I found it surprising that it was not the case. The pure "bear" provisions substantially dominated the landscape. Here is a link to a chronological listing of the various right to arms provisions found in state constitutions:

Hmm, interesting. To note that the first two states that introduced a RKBA after 1791, Tennessee and Maine both do so for the "common defence". This suggests nothing about the right to keep arms as being for self defence, but merely so the state has a ready supply of weapons.


Exactly my point. The only rational explanation is that the right to keep arms implicates a use other than bearing arms.

Of course, except i am not sure on your usage of the word "use". Not all rights protected actions, the right to property for example, and why not the right to keep a gun, an action in grammatical terms but perhaps not in every day life. Though the buying and selling are protected.

I will tell you that the quakers were not opposed to hunting, nor were they opposed to self defense so long as it did not involve using force against another human. They were free to use firearms to kill bears or wolves in self defense without violating their religious principles.

The question is this though. If the RKA also involved self defence, then surely no one would have had a problem with the religiously scrupulous clause as they would be able to take part in self defence.
If however the right to keep arms was about keeping arms only for the militia, which is what i suggest, then surely the founders would have had a problem with this as it would mean that individuals could have their guns taken off of them, even though self defence was probably important in those times against animals and injuns etc!


I have been through a little of what Churchill says, this is interesting:

The first interpretation of the meaning of the "right to keep and bear arms" came in a discussion of the rights recognized by the Massachusetts Constitution of 1780. The seventeenth article of that constitution's declaration of rights declared in part that "the people have a right to keep and bear arms for the common defense." When the constitution was sent to the towns for ratification, the inhabitants of Northampton and Williamsburg raised objections to this formulation. The inhabitants of Northampton complained that the article "is not expressed with that ample and manly openness and latitude which the importance of the right merits." They suggested that the article be altered to read "The people have a right to keep and bear arms as well for their own as the common defense." The inhabitants of Williamsburg offered almost identical language, but explained their objections at greater length: "that we esteem it an essential privilege to keep arms in our houses for our own defence and while we continue honest and lawful subjects to government we ought never to be deprived of them." They warned that without more explicit protection of their right to keep arms, the legislature might mandate the public storage of guns.75 Of 225 towns ratifying the Constitution of 1780, only these two expressed reservations over article seventeen. The constitution was declared ratified without further amendment.

It suggests that the people of this time saw that what Massachusetts had written and would pass into their constitution, did not protect the bearing of arms for personal reasons, and that some people actually wanted this but did not get it.

legaleagle_45
January 20, 2009, 12:22 PM
Though i guess this is also a matter of interpretation of whether there are more protections or less, considering everyone is protected in the 2A, and not everyone was in the English BoR.

I, of course, am speaking to the scope of the right itself, rather than to those who are protected by the right.

Which seems to confirm my theory that the reason why the bearing of arms means that your right to be in the militia is protected and nothing else, is that a revolution takes place under the command of the officers chosen by the states, with the manpower of the general population.
No constitution should bring about its own downfall.

Perhaps. There is certainly evidence of that view, although it is somewhat incomprehensible to modern sensibilities. Cornell actually comes close to this position, but he is unable or unwilling to articulate same as an individual right. He calls it a "civic right". If he were to stop there, I would not quibble with the terminology employed, but (of course) he does not stop there. He claims the "civic right" is dependent upon tight regulation of arms and without the existence of a true citizens militia the civic right disappears.... A logical disconnect if you really think about it, but beyond the capacity of this message board to let me explain in detail. I failed to follow up on my earlier comment on what Scalia had to say about "bear". Scalia indicated a definition of "bear" as (to paraphrase) to carry in anticipation of a confontration with anoter person... whether it be for self defense or for warfare. If you use that definition, the problems associated with the religious clause disappear.

Which seems to confirm my theory that the reason why the bearing of arms means that your right to be in the militia is protected and nothing else, is that a revolution takes place under the command of the officers chosen by the states, with the manpower of the general population.
No constitution should bring about its own downfall.

Perhaps... but it says nothing about keeping arms....

Hmm, interesting. To note that the first two states that introduced a RKBA after 1791, Tennessee and Maine both do so for the "common defence". This suggests nothing about the right to keep arms as being for self defence, but merely so the state has a ready supply of weapons.

But both have "keep".

Of course, except i am not sure on your usage of the word "use".
Not all rights protected actions, the right to property for example, and why not the right to keep a gun, an action in grammatical terms but perhaps not in every day life. Though the buying and selling are protected.

The right to property necessarily implicates a right to use that property. For example, if you were to own some land and the EPA passes regulations which prohibits any substantial use of that land, it is considered a taking of property. The right to own and the right to use are inextricably tied together.

If the RKA also involved self defence, then surely no one would have had a problem with the religiously scrupulous clause as they would be able to take part in self defence.

Sure they would, but for the reasons articulated by Gerry.

I have been through a little of what Churchill says, this is interesting:

This is what is known as the "scribble-Scrabble" debate...

It suggests that the people of this time saw that what Massachusetts had written and would pass into their constitution, did not protect the bearing of arms for personal reasons, and that some people actually wanted this but did not get it.

Or it suggests that the right was already there and no amendment was necessary.:D

OMDP
January 20, 2009, 01:11 PM
Scalia indicated a definition of "bear" as (to paraphrase) to carry in anticipation of a confontration with anoter person... whether it be for self defense or for warfare. If you use that definition, the problems associated with the religious clause disappear.

I would say that this is true, except for the context of the 2A.
The fact is the problem with the religious clause was not cleared up in this fashion, but by rejecting it totally.

Perhaps... but it says nothing about keeping arms....

No, the Massachusetts constitution did not have anything about keeping arms.
But does that mean that even if self defence is considered to be a part of keeping arms, why did they not introduce this, why dd they not feel the need to protect self defence in the constitution?

But both have "keep".

I am not sure what you want to get at. Yes they both have keep and they both have keep arms for the common defence, seems clear in this context that the weapons were protected so individuals would keep them and they could be used by the militia in times of need.


The right to property necessarily implicates a right to use that property. For example, if you were to own some land and the EPA passes regulations which prohibits any substantial use of that land, it is considered a taking of property. The right to own and the right to use are inextricably tied together.

Would it not be better said that an individual can use their land in any way that is LEGAL? And individual has the right to keep arms protected. They can also do anything legal. For example, you have the right to keep arms and you can carry and conceal your weapon (in most states). Does that mean that carry and conceal is protected by the 2A? No it does not. It means you have a weapon that is protected and you can legally do things with it.

Can you use your property to kill people, grow illegal drugs and such things? No.


Sure they would, but for the reasons articulated by Gerry.

I don't see the connection between this and what the other guy was saying.

Or it suggests that the right was already there and no amendment was necessary.

Very much so. Now it is my interpretation of the 2A that self defence was already there and no amendment was necessary, whereas the protection of the constitution, nation and people was deemed far more necessary and through the 2A they protected this.

expvideo
January 20, 2009, 02:29 PM
This thread must die.

hugh damright
January 20, 2009, 03:35 PM
If collective refers to the people, then as a collective right wouldn't that imply that all people have a right to bear arms?
I think that a collective right is a general right and not a select right. I cannot even think of an example of a select right ... it's not as if only a select group gets to vote, or run for office, or speak freely. But at the same time, I don't agree that a collective RKBA embraces every individual, I think a State might for instance disarm violent felons without disarming the people.


how could "the people" be singular in one amendment and collective in another? The writers did not play hopscotch with the language.
I disagree.When Madison proposed the USBOR, his first amendment regarded the right of the people to alter/abolish government, and so he began the USBOR by using "the people" in a collective sense. Yet in other instances "the people" is singular.


The argument now is that the 2nd protects an individual right but for purely a collective purpose....
It seems to me that the right in question is protected by the federal militia power regardless of the Second Amendment.

legaleagle_45
January 21, 2009, 01:03 PM
The fact is the problem with the religious clause was not cleared up in this fashion, but by rejecting it totally.

And such rejection neither supports your position nor does it support my position (actually Scalia's position).

No, the Massachusetts constitution did not have anything about keeping arms.

Yes it did.

But does that mean that even if self defence is considered to be a part of keeping arms, why did they not introduce this

Because it was there in the keep portion of the declaration. No need to duplicate it elsewhere.

Yes they both have keep and they both have keep arms for the common defence,

I read it thusly: "The right of the people to keep arms and bear said arms for the common defense...". The only possible reservation thereon would be the military usefulness issue discussed in Miller.

Would it not be better said that an individual can use their land in any way that is LEGAL?

No because the government can not pass legislation which makes all uses illegal. That would clearly be a taking. Additionally, there are certain things that a government must not make illegal... such as self defense. I know you are not a fan of natural rights theory, but I believe that is based more on not understanding what natural right theory is all about. Natural right theory looks at what it means to be human... our natural tendencies and instincts. It then classifies these tendencies and instincts as "natural rights". That is definitional within the theory itself. Once you understand that as the definition, instead of someother definition which you might other wise ascribe to the term "rights", everything else follows logically and makes perfect sense. Under natural law theory, it is perfectly proper to state: "breathing is an inalienable natural right", because it is under the definition employed in natural right theory. It would therefore be improper for the government to pass a law which prohibited people from breathing... The right to arms is not such an inalienable right. As explained by Blackstone, the right to arms is an auxillary right... or a derivative right, which inhances the underlying inalienable right of self preservation. There are actually few "unalienable rights" within the BoR's... primarily they are all auxillary rights which enhance underlying natural rights.

I don't see the connection between this and what the other guy was saying.

Exactly my point. Gerry was concerned that the government might use the clause as a pretext to prevent people from bearing arms whether they were actually religiously opposed to bearing arms or not. That objection would have merit regardless of anything else we have discussed.

Very much so. Now it is my interpretation of the 2A that self defence was already there

Self defense was there, but not the auxillary right of arms to enhance the right of self defense. You may still get there under a "necessity" argument which provide a legal excuse to employ firearms, but I do not think that was what was intended.

Protection of the militia from fedral disarmament was actually a Johnny come lately argument that was articulated only after the amendments proposed by the various state raifying conventions (and minority proposals) had been drafted. 5 states proposed a Blackstonian right to arms amendment.... that is more than any other proposed amendment for inclusion in a Bill of Rights. That the 1st Congress may have been concerned with this new argument so as to strengthen the emphasis on the militia, I do not need to dispute. What I do dispute is that it is the sole or only reason for the inclusion of the 2nd... the Blackstonian right is still there, IMHO.

CAPTAIN MIKE
January 21, 2009, 07:07 PM
Now that the 2008 Heller decision has put a fine point on it, the Supreme Court of the United States has delivered its ruling - and the law of the land is clear that the right to keep and bear arms is NOT a collective right, but rather an Individual right. The same as all the other parts of the Bill of Rights.

It is pointless to go over this again and again. The Supreme Court has made it clear. The individual right to keep and bear arms is the law of the land. 'Nuff Said'.

Millwright
January 21, 2009, 10:43 PM
Who are the Militia ? They consist now of the whole people."
George Mason, member from Virginia that refused the sign the Constitution without the addition of the BoR.....

....a "militia, when properly formed as in fact the people themselves".....Federal Farmer

We need to be guided by the principles evolved during the arguments leading up to the ratification of the Constitution whenever the "intent" seems vague in these more distant times. >MW

cbrgator
January 21, 2009, 10:47 PM
Who are the Militia ? They consist now of the whole people."
George Mason, member from Virginia that refused the sign the Constitution without the addition of the BoR.....

....a "militia, when properly formed as in fact the people themselves".....Federal Farmer

Millwright, while you are absolutely right about the militia, you need not quote non legal sources. The only definition of militia that matters is the legal one. This is provided in the Militia Act of 1903. There is no argument stronger than that for who comprises the militia.

OMDP
January 22, 2009, 11:29 AM
Because it was there in the keep portion of the declaration. No need to duplicate it elsewhere.

Unless of course you view the constitution as a document that is supposed to be understandable to the common person who can read.
Also that the amendment has the context of the militia, that the right to bear arms is in the context of the militia and that it does not and has never protected the bearing of arms in a non-militia context, such as carry and conceal, parading armed through the streets and so on.
So why would the right to keep arms not also be within this context?

I read it thusly: "The right of the people to keep arms and bear said arms for the common defense...". The only possible reservation thereon would be the military usefulness issue discussed in Miller.

But then it does not say that. It is all very well wanting this to be said, but it simply does not. It also raises the question of whether keeping arms for the common defence can include the right to self defence. I would say this is impossible.
Now my reading of this clause is the same as the 2A. You have the right to keep arms, so that the militia will have a ready source of arms. ANd you have the right to bear arms, so the militia has ready personnel.
I still suggest that the right to self defence was lost from the right to keep arms under the English a hundred years previously, that it moved into its own sphere of influence and became it's own separate right.

I know you are not a fan of natural rights theory, but I believe that is based more on not understanding what natural right theory is all about. Natural right theory looks at what it means to be human... our natural tendencies and instincts. It then classifies these tendencies and instincts as "natural rights".

My reasons for not liking rights in general is because they try and claim something exists, when this is simply not the case.
As a human being i can speak, it is something almost inherent within a human being. A government can tell me not to say things, i either ignore them and hope for the best, or do what they say.
The whole rights issue came about through the fight between parliament and the monarchy in England, they said "we want to be able to say what we like" and somehow managed to get that to mean that the govt cannot prevent them saying what the like, within reason.
So what do we have? A right given, inherent? Or merely an understanding between people and positions?

I understand the different theories on rights, and i generally work within the basis that a right in the US constitution (written or not) is one that because it is protected, is deemed to be a right, and is therefore a constitutional right, it has a legal basis. All the other rights that are not accepted by the US constitution or other bodies, have no standing in the legal sphere, and are therefore irrelevant to any discussion i may actually need to take part in, so i am basically looking at something that is more solid than a law, because of the constitution.

There are actually few "unalienable rights" within the BoR's... primarily they are all auxillary rights which enhance underlying natural rights.

Yes, but is there in fact, under law, much difference between an "unalienable right" and an auxilary right? Does it make a difference to this argument? Fact is this, there is a protection of what some call a right, others might call it a want or a need, to keep and bear arms. Now what that means in the context of 1789-91 is important. Are you claiming that because this is an auxilary right, that it must contain the right to self defence?


Exactly my point. Gerry was concerned that the government might use the clause as a pretext to prevent people from bearing arms whether they were actually religiously opposed to bearing arms or not. That objection would have merit regardless of anything else we have discussed.

And how do you relate this to the keeping of arms? If there was no clause that could be deemed to prevent individuals keeping arms regardless of their religious scruples or not, then the govt could do nothing about it.

What I do dispute is that it is the sole or only reason for the inclusion of the 2nd... the Blackstonian right is still there, IMHO.

I am not arguing that the Blackstonian view was not around at the time, nor that it did not impact on the politics at the time. But the whole situation was a give take federalists v. anti-federalists and in general the federalists won, even though there seems to be a lot more anti-federalist material around.

New Hampshire wanted this "TWELFTH Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion."
Does this sound like the right to keep arms? If you disect the right to keep arms, it is that the government shall make no law, or action that will disarm individual citizens. Basically different wording, same meaning, except from your point of view one thing missing, there is no self defence.

Now the line of reasoning seems to suggest that there was a proposed amendment that went through many changes. Did the original views of some come out at the end, or is what we have in the 2A the product of what congress made it?

OMDP
January 22, 2009, 11:33 AM
Captain Mike

It is pointless to go over this again and again. The Supreme Court has made it clear. The individual right to keep and bear arms is the law of the land. 'Nuff Said'.

The Supreme Court said that Abortion was legal, was that the end of the matter? WHile i agree that the 2A is an individual right, i do not think this will be the end of the matter, merely that it is easier to claim and prove the individual right. But do you think people will just shrug their shoulders and accept this? Do you think federal court justices will accept this? The first case on the 2A to come before a liberal judge could be a very interesting time.

cbrgator
January 22, 2009, 03:28 PM
Do you think federal court justices will accept this? The first case on the 2A to come before a liberal judge could be a very interesting time.
Yes, I think they will just accept this. The SCOTUS' decision is legally binding on all federal courts. No federal court can rule against roe v. wade. Guns might be different under Heller, as that was decided regarding a Federal entity (DC), not a sovereign state. A justice COULD distinguish a state/city ban from the DC one for that reason. But, no matter how the ruling comes down it will be appealed all the way to the top until SCOTUS rules on it or denies cert.

The Supreme Court said that Abortion was legal, was that the end of the matter?
Legally speaking, yes it was the end. It has brought about protests and whatnot, but no jurisdiction can ban abortion, nor can a court rule as such in a lawsuit.

The only issue regarding these cases is the SCOTUS reversing itself (which happens quite rarely).

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