2nd Ammendment -- It's not what you think!

[Shootin' Buddy]

The 2nd Amendment was supposed to be the first gun ban?

Graystar said:

That's a nice thought but that's not right. First, the term "bill of rights" is not a cool term that the founders came up with for the amendments. It is a legal term with a detailed legal meaning... A bill of rights is an enumeration of pre-existing fundamental rights over which an authority has no power. To put it simply, it is an FYI to the government...

I don't follow your point here. I believe you are trying to assert that my conclusion is wrong, but I'm not understanding your counterargument. Are you maintaining that the Bill of Rights does not, and is not intended to, place restraints upon the Federal Government?

Graystar said:

In addition to misinterpreting, you forget that Congress has the power to raise an army and was allowed to maintain a navy... Clearly, maintaining a navy means that the government had guns...big ones too.

You bet it does. I think you missed my point. Probably I wasn't clear enough. I'll phrase it differently.

The Constitution did indeed, as you pointed out, supply the Federal Government with guns, big guns. And that was a serious issue with many of our fathers. Because of this, many of our fathers refused to ratify the Constitution and made public arguments encouraging the populace to join them in their refusal. I offer again a sample of their writings.

http://www.wepin.com/articles/afp/afp29.html
http://www.wepin.com/articles/afp/afp24.html
http://www.wepin.com/articles/afp/afp25.html

Others who were not so vehement as the dissenters, saw the danger of arming the Federal Government but also saw advantages in creating one. Their solution was to propose amendments and changes to the constitution which would place major restrictions on the "guns" (being used metaphorically here for military force.)

In the bills of rights of the States it is declared, that a well regulated militia is the proper and natural defense of a free government; that as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controlled by, the civil power. The same security is as necessary in this Constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no control in the exercise of it; yet nothing of this is to be found in this new system. (from Antifederalist No. 84 ON THE LACK OF A BILL OF RIGHTS
at http://www.wepin.com/articles/afp/afp84.html )

I showed several such proposals earlier in this thread. They all had the same main idea backing them, that a standing army is dangerous and should not be maintained, that a militia is the only form of military that can effectively coexist with a free society, and that the government should be prevented from having a force of its own and that it must rely instead upon its citizens for its force.

The Federalists, on the other hand, wanted no restrictions of the Federal Government regarding the army, navy, etc. and yet they understood that the constitution would not be ratified without some form of the proposed amendments. So they whittled away the words proposed by the various conventions and the notion of restraint upon the Federal Government was castrated. We were left with merely the right to maintain a militia, the right to keep our own arms. I'll take whatever I can get, but the original aim of the fathers who insisted upon its inclusion was not mearly to maintain the right to keep arms for themselves, but to restrain the government from having any of its own and forming its own army.

So, yes, the Constitution did provide the Federal Government with the power to form an army. And that is why many of our fathers proposed restrictions upon that power. They intended the Second Amendment as such a restriction. And from that I enjoy the metaphor that the second amendment was supposed to be the first gun ban.

 

[Graystar]

I don't follow your point here. I believe you are trying to assert that my conclusion is wrong, but I'm not understanding your counterargument. Are you maintaining that the Bill of Rights does not, and is not intended to, place restraints upon the Federal Government?

That is correct. The Bill of Rights doesn't create restrictions. The restrictions exist simply because we are born with inalienable rights. The Bill of Rights just lists restrictions that already exist. That's what the Ninth Amendment is about.

The Tenth embodies the idea that the government can't take powers that weren't delegated to it.

These amendments keep the government in check by reminding them that good government doesn't do these things. That's the purpose of a bill of rights.

Actual limits on powers are in the Articles, such as "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"

 

[Shaggy]

Look, if you want an answer about the ambiguousness of the wording of the 2A, you need to ask an English Language expert.

That is exactly what J. Neil Schulman did. Turns out that the Founders were pretty damn smart and the 2A is not all that ambiguous at all. Read....

http://members.tripod.com/gunguyoh/2nd Text.htm

 

[Graystar]

Look, if you want an answer about the ambiguousness of the wording of the 2A, you need to ask an English Language expert.

Absolutely not! The Constitution and its amendments was written by lawyers. The law has a language of its own. It is not plain English.

For example, before you even begin to examine the wording you have to first apply the context relating to the legal instrument known as a bill of rights. That means that the items listed are fundamental, pre-existing rights. We know that because that's part of the legal definition of a bill of rights.

That is why a language analysis on the 2nd is a waste of time. A language analysis cannot provide the missing legal context under which the enumerated items must be viewed.

 

[shooten]

Not disagreeing with anyone, just putting out another data point. Here's an opinion written by a law professor named Eugene Volokh. As I recall, his argument and Schulman's were almost parallel. Volokh used to be a clerk for SCJustice O'Conner.

http://www1.law.ucla.edu/~volokh/beararms/testimon.htm

Scott

 

[clange]

Thats an intersting point in the last link, that the first part is the reason/justification and the second part is the right itself. Thus you could interpret 'A well-regulated militia, being necessary to the security of a free state,' to be the reason for the RKBA. Further, as others have suggested this was to apply to individual free states. One could ask, security of free states, but from what? I would suggest they clearly intended it to be primarily from a tyrannous government, and to a lesser extent, foreign invaders. Imagine if they had written it like that, 'to protect the states from a possible tyrannous government and foreign invaders, the right of the people to keep and bear arms, shall not be infringed.' Could have settled a lot of this crap before it started.

A lot of that might get a 'duh' from some of you, but i hadnt thought about it that much.

 

[Shootin' Buddy]

That is correct. The Bill of Rights doesn't create restrictions.

The first five words in the Bill of Rights are, "Congress shall make no law..." That's restrictive language, even in lawyer speak.

The Bill of Rights just lists restrictions that already exist.

Okay, whether we created them or enumerated them, the Feds are expected to abide by those restrictions, right?

 

[Shaggy]

Absolutely not! The Constitution and its amendments was written by lawyers. The law has a language of its own. It is not plain English.

Sorry, but I disagree. The law is written in English. It's not written in some foreign code. Yes there are legal terms. The 2nd Amendment is one sentence containing two clauses. Couple that sentence with the fact that it is part of a Bill of Rights which RESTRICTS the gov't, not gives it power and numerous writtings of the founders on the issue of an armed populace and it is crystal clear what the 2nd Amendment means. People saying it applies to the National Guard no better because it's not rocket science. They are in denial.

 

[Graystar]

Sorry, but I disagree. The law is written in English. It's not written in some foreign code.

So when these guys wrote "...that all men are create equal" they were including the slaves that they held...right?

It just isn't that simple.

 

[Shaggy]

All men are created equal under the law. At that time slaves did not come under the law. That was changed by an amendment.

Are you saying "all men are created equal" is some mind boggling legal term that nobody but a lawyer can understand?

 

[Graystar]

Okay, whether we created them or enumerated them, the Feds are expected to abide by those restrictions, right?

That's right. So now it's just a question of what exactly does the 2nd amendment mean.

 

[Graystar]

All men are created equal under the law. At that time slaves did not come under the law. That was changed by an amendment.

Where did you get that from??

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

There isn't even a remote hint within the Declaration of Independence of what you suggest.

Are you saying "all men are created equal" is some mind boggling legal term that nobody but a lawyer can understand?

I'm saying that there is more to consider than just the words when you read legal documents. The intent of those words is important. The structure within which those words exist is also important, as that structure may provide important context. It's just not as simple as reading the words.

 

[Shaggy]

I'm saying that there is more to consider than just the words when you read legal documents. The intent of those words is important. The structure within which those words exist is also important, as that structure may provide important context. It's just not as simple as reading the words.

True enough, but a language expert in usage can certainly derive intent. And most certainly he could disect the structure within which those words exist. There is nothing magical about what Copperud did in disecting the 2A in the link I posted above. In fact, I find it rather difficult to argue with the conclusions. Nor do I see how anyone else could. Please point out where he's wrong.

 

[Graystar]

True enough, but a language expert in usage can certainly derive intent. And most certainly he could disect the structure within which those words exist. There is nothing magical about what Copperud did in disecting the 2A in the link I posted above. In fact, I find it rather difficult to argue with the conclusions. Nor do I see how anyone else could. Please point out where he's wrong.

Certainly. You are correct that intent should first be derived from the actual words. However, when there are differences of opinion as to what those words mean, the judiciary turns to the history surrounding the creation of those words.

For example, although a person who is subject to a traffic stop is not, at that moment, free to go, this fact, standing alone, does not convert the stop into a custodial situation requiring Miranda warnings. (Stone v. City of Huntsville, 656 So.2d 404 (Ala.Cr.App. 1994)).

That is the process that the law follows. That is why an English language review alone is not valid.

 

[Shaggy]

That is why an English language review alone is not valid......the judiciary turns to the history surrounding the creation of those words.

Ahhhh....now this is the crux of the matter is it not?

If this is indeed the case, which I believe it should be. Then truely, there is only one way the Supreme Court could rule in a 2nd Amendment case is'nt there? After all, both in structure and history of the creation the words of the 2nd point to an individuals rights.

Why are we as a country still having this debate? Mostly because the left can't repeal the amendment so they will try(and succeed in many cases) to put as much restriction as possible to the amendment through the judiciary stating a collectivist theory and "jubject to reasonalbe regulation". Muddy up the water so to speak.

 

[Graystar]

Why are we as a country still having this debate?

Because when you review the history of the debates over the 2nd amendment, you find that the intent was to insure that the new Federal government could not do to the states, what the king tried to do to the colonies...which was an attempt to empty the armories before the start of the war.

This is what the 9th circuit found. The 5th circuit reviewed the writings of the Founding Fathers and found that they believed in an individual right to have arms. Both are correct. But the 9th Circuit's view is more accurate as to the intent of the second. However, that does not mean that we do not have an individual right to keep arms. We do. It's just that the notion that the 2nd amendment protects the right to carry a weapon for personal protection is wrong. That was not the intent of the 2nd.

 

[SemperFi83]

There are God-given rights that pre-exist the formation of a government and that also SURVIVE the formation of a government. The BOR is an enumeration of some of these Rights. People have rights, governments have powers, which are granted to them by the people.

If 10 lawyers opine on the meaning of a clause in a legal document, does anyone wonder why we get 10 different opinions?

I know what the BOR means to me. I can talk until I’m blue in the face and liberals (and some of you guys/gals) will never accept my opinion.

I think Oliver Wendell Holmes, Chief Justice of the United States, said it best: "When men differ in taste as to the kind of the world they want, the only thing to do is to go to work killing."

And Walter Williams: "There is no moral obligation for any of us to obey immoral or unconstitutional laws, but if you are caught be prepared to pay the price."

I live in Ohio, where I do not recognize the State’s refusal to recognize my God-given, pre-existing and surviving rights…

 

[Shaggy]

Because when you review the history of the debates over the 2nd amendment, you find that the intent was to insure that the new Federal government could not do to the states, what the king tried to do to the colonies...which was an attempt to empty the armories before the start of the war.

Yes and by affirming an individual right, it insured that the gov't could'nt empty the armory because even if they did, people would still have their privately owned arms. The insurance that the fed could'nt do to the states what the king did to the colonies relies on the premise that no free man shall be debared the use of arms.

And to say the 2nd does'nt guarantee you the right to carry for defense of yourself is just wrong. The right of the people to keep and bear arms shall not be infringed. Carrying a gun is bearing arms. There are plenty of writings where the founders make statements about bearing arms for defense and security.

Ohio Constitution Article 1 Section 4
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

Does that mean what is says or does it mean I have the right to defend the state as part of the Ohio National Guard?

 

[Graystar]

Yes and by affirming an individual right, it insured that the gov't could'nt empty the armory because even if they did, people would still have their privately owned arms. The insurance that the fed could'nt do to the states what the king did to the colonies relies on the premise that no free man shall be debared the use of arms.

The problem with that explanation is that it is an interpretation of what has actually been written. Since only the Judiciary's interpretation matters, you'll have to convince them that your view is correct.

And to say the 2nd does'nt guarantee you the right to carry for defense of yourself is just wrong. The right of the people to keep and bear arms shall not be infringed. Carrying a gun is bearing arms. There are plenty of writings where the founders make statements about bearing arms for defense and security.

Ohio Constitution Article 1 Section 4
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

Does that mean what is says or does it mean I have the right to defend the state as part of the Ohio National Guard?

My interpretation of this article would that that it is military in nature and that defense means defense from invasion and insurrection, just as in the Constitution. However, the only thing that matters is the intent of the people that wrote it. You would need to learn why this was written...what purpose is it supposed to serve.

But if you can prove me wrong about the 2nd, that would be great. Show me where, in the actual debates over the 2nd amendment, there is any implication that part of the purpose of the amendment was to secure a right to firearms for personal individual defense against attacking criminals or animals. I know that the Founding Fathers believed that there was such a right. That's clear from their other writings. However, I have never seen a place where such a concept was discussed as being part of the 2nd Amendment.

 

[telewinz]

An armed citizen was intended as a counter-balance to a standing Army. It was part of our system of checks and balances, the National Guard now fills that roleand is normally under the control of state government. Our armed citizens by and large do not qualify since they are unregulated and do not attend formal training sessions. An exception to this situation would be the state sponsored/supported reserve units such as the Ohio Reserve which attend monthy training at Camp Perry and other statewide locations. Their are less than a 1000 members in the Ohio Reserve with a very high percentage of former military personnel.

 

[Shaggy]

Read The Second Amendment Primer by Les Adams. It's chock full of quotes, newspaper articles of the times, etc.... Yes, much debate and comment was about the fear of a standing army. But there are also plenty of quotes that add to that about the right to defend oneself from attack from another. The founders believed in the inherent right to self defense. I don't think the 2A can be said to have only the intent of bearing arms against enemies(army's) foreign and domestic.

It's clear that we the people are the militia. No national guard formation in a state out trumps that fact. The book I mentioned above gives dictionary definitions of that time period of what well regulated means. The meaning of words such as militia, keep arms, bear arms, well regulated etc... was the meaning of these words as they were used in the English common law of the 16th through the 18th centuries - not as they are used today.

The true debate, IMO, should not be about what does the amendment mean. The leftist should open the debate about why we should repeal the 2nd Amendment. Of course that will never happen because if the Democrat party ever put a plank in the platform which states "we will work to repeal the 2a" they would get about as many votes as the Green Party got last election. They would rather chip away to get people used to the idea. And if things keep going the way they are, it won't take them but maybe another generation to achieve the goal and make the USA like England...a gun free zone...unless of course your a criminal.

 

[Shootin' Buddy]

An armed citizen was intended as a counter-balance to a standing Army.

No, those who pushed the 2nd Amendmented were not looking for a counterbalance, they didn't want a standing army at all. They saw a standing army as a threat to freedom. They wanted the militia to defend the country.

 

[Al Norris]

Standing Armies became a moot point after the civil war. It was necessary for reconstruction, doncha know! And most of the populous (read North) agreed.

 

[spartacus2002]

A point worth considering:

US law did NOT begin with the Constitution and the BOR. The Constitution and the BOR merely set out the form of the Federal Govt and the restrictions on its activities (via the BOR).

The English common law existed before and after the Constitution; the Constitution did not destroy or supplant it. And one of the commonly recognized common law rights was the right to own arms and to carry arms in one's defense.

Many of the founders feared that the enumeration of rights in the BOR would be used one day as an excuse to limit rights to those enumerated; this was supposed to be avoided courtesy of the 9th amendment, but that is pretty much dead law.

I've always wondered why no scholars focus on the common law right to self defense, and instead rely on the ambiguous 2d Amendment.

 

[telewinz]

The founding fathers were afraid of what a standing army could do (and almost did) to a standing government and didn't want the expense involved in maintaining a military presence. We did in fact have a small standing army after the war, they fought the indians and such and put down the Whiskey Rebellion that occurred in western Penn. The vast majority of adult males were not members of the militia (except on the frontier) and had little or no formal training but as in the draft were subject to call-up if needed. Compared to today, government rule was very light-handed 200 years ago, enforcement and imprisonment were expensive. The role of militia often suggested has little to no difference when compared to an armed mob.