2A Debate with Alan Dershowitz

[mnrivrat]

I personally think the framers of the 2nd amendment knew very well that at the time, all men between the ages of 17 and 45 were to be the militia, and that when they said the people they did not exclude men of ages prior to, or older than that age group. I find it interesting that when I was 16 (or younger) I had no problem buying, or carrying a firearm. My first center fire handgun being purchased at age 16 from the disposition of such guns from a local police department. Or that at the age of 15 I walked into our local hardware store to purchase ammunition for the handgun I was wearing openly on my belt. That was in the late 50's, early 60's.
I believe that constituted the keeping and bearing of arms. However today some people want to argue that what I had the right to do then, somehow is no longer constitutional today. Did the 2nd amendment change ? Only in the eyes of anti-gun people and some lawyers.

 

[Monac]

I personally think the framers of the 2nd amendment knew very well that at the time, all men between the ages of 17 and 45 were to be the militia, and that when they said the people they did not exclude men of ages prior to, or older than that age group. I find it interesting that when I was 16 (or younger) I had no problem buying, or carrying a firearm. My first center fire handgun being purchased at age 16 from the disposition of such guns from a local police department. Or that at the age of 15 I walked into our local hardware store to purchase ammunition for the handgun I was wearing openly on my belt. That was in the late 50's, early 60's.
I believe that constituted the keeping and bearing of arms. However today some people want to argue that what I had the right to do then, somehow is no longer constitutional today. Did the 2nd amendment change ? Only in the eyes of anti-gun people and some lawyers.

Has the Second Amendment changed since the late 1950's and early 1960's? Beats me. I know reality has changed. For example, AR's were not really available then. I guess a few people had German ones from WWII, and maybe some people had got ahold of AK-47's somehow, but both guns must have been rare, and ammo for either one would have been hard to get, if you could get it at all. So if circumstances change, and new things are invented or manufactured, do you think laws need to change too? Keeping in mind that the Constitution is a law?

I think so, myself. And interpreting the Constitution in the light of circumstances that did not exist in the Founder's time is part of what Supreme Court justices get paid for. I sure have no expertise there.

PS - I grew up in Wisconsin. It had a law against concealed carry from the 1850's until about the 1990's. So some things have changed the way YOU would want them too, Change is not always bad.

 

[mnrivrat]

Monac : I think I can say with certainty that the 2nd Amendment has not changed. I also think the Supreme court has no authority to change or update the constitution. That would be up to the legislators, and their is a procedure to do so. The courts responsibility is to interpret the constitution, not to change it.
I have some recollection of one of the framers of the constitution (I think Jefferson, but could be wrong) in correspondence stated that all the weapons of the soldier were the right of Americans. I can find it if I have to.
With that in mind as it was presented during the time of the framing of the constitution, would it mean that today we have the right to RPG's , Full auto weapons, and other gear used by modern military without government infringement ? Well possibly ,if that is the mindset of those who drafted the 2nd Amendment. It certainly isn't the reality of today so some modernization has occurred.
My point I guess is that trying to modernize the constitution opens up a thought process that becomes very complex. You say that change is not always bad. When a change in our constitution is made without consideration of the framers intent, then I believe it to be what is referred to as "unconstitutional" or bad.

Yes, I am not a constitutional lawyer. That is why I started my last post with "I personally think".

If this nation wants to change the 2nd Amendment there is a legislative process to do so. It is not by executive order, nor by present bills being considered. If the courts, or legislators, or regular citizens decide to bastardize the 2nd amendment, that is not OK, and not appropriate, and it is unconstitutional. They should follow the correct process, not chip away at the 2nd , because that is infringement IMO.

 

[army_eod]

We don’t live in a Democracy or a functional one, at that.
We do not have majority rule.

We have a representative govt. A Republic.

 

[mnrivrat]

We don’t live in a Democracy or a functional one, at that.
We do not have majority rule.

We have a representative govt. A Republic.

You are correct .,we are a Republic , many people do not understand that.

 

[stillquietvoice]

think so, myself. And interpreting the Constitution in the light of circumstances that did not exist in the Founder's time is part of what Supreme Court justices get paid for. I sure have no expertise there

Scotus did rule that that innovations not available at the framing of the bill of rights do apply to the first, free speech, radio, television, even the internet. And yet, the 2nd isn't supposed to apply the same way somehow.

Iirc 1791, 1792 militia acts stated out right that we are entitled to be armed as any standing military, for several reasons one of which is logistics, easier to supply an armed militia if they posses the same military grade equipment and calibers.

constitution, not to change it.
I have some recollection of one of the framers of the constitution (I think Jefferson, but could be wrong) in correspondence stated that all the weapons of the soldier were the right of Americans. I can find it if I have to.

 

[RON in PA]

A couple of examples of a republic, NAZI Germany and the Soviet Union. The original meaning of "republic" was a country not ruled by a king. Yes we are a republic, but we are also a democratic republic.

It would have been much better for us if the 2nd amendment did not have the initial phrase about the well regulated militia, but consisted only of "the right of the people to keep and bear arm shall not be infringed." The militia phrase becomes an argument for the anti-gunners as apparently Dershowitz is. He probably thinks that the peasants are too dumb to have guns.

 

[army_eod]

Let's look at this another way. Forget the 2A. Why should anybody have the right to deny me the option of owning a firearm. or knife, or car, or TV, or computer or anything?
Answer; nobody, and especially not any govt.

 

[Steve S.]

.....again, “people” or “militia”, one in the same, different in yesteryear, different today, same today - in my simple mind it does not matter. The right shall not be infringed is an absolute, stated as an absolute right for the people - it reads exactly as it is supposed to read. The interpretation for change in the context of technology, standing army, assault weapons, automatic weapon, etc. is all invented as a logic to control a right or a freedom. The amendments were established to solidify and document freedoms; shall not be infringed is very clear and concise - again, what is there to interpret other than for those that want to control.

 

[AlexanderA]

The right shall not be infringed is an absolute, stated as an absolute right for the people -

Not even Justice Scalia, writing in the Heller case, went that far. Like all rights, the RKBA has its limits. The hard part is figuring exactly what those limits are.

 

[kwguy]

Not even Justice Scalia, writing in the Heller case, went that far. Like all rights, the RKBA has its limits. The hard part is figuring exactly what those limits are.

Everybody always says that. Maybe the limits of our rights are where they begin to unlawfully infringe upon others? I wonder if that’s what the framers really intended? Maybe that’s why we also have a criminal code.

 

[danez71]

Statutes etc come and go 'in light of current circumstances'.

The Constitution are not statutes but more of legal principles with weight of supreme law for which statutes must not violate.

It's not realistic to change the principles of society as quickly as is possible with the stroke of quill pen on paper... or social media.

The hurdles in changing the Constitution prevent 'interpreting the Constitution in the light of circumstances' every time the wind blows no matter which direction.

And interpreting the Constitution in the light of circumstances that did not exist in the Founder's time is part of what Supreme Court justices get paid for.

This, imo, is a really good read for a easily understandable summary of several key cases that got us to where we are now. It includes the citations which is very helpful, at least to me.


https://www.law.cornell.edu/constitution-conan/amendment-2

It notes....

Caetano v. Massachusetts, the Court emphasized that, under Heller, the protections of the Second Amendment extend to firearms that were not in existence at the time of the Framers. See Caetano, slip op. at 2 (per curiam) (vacating and remanding a Massachusetts state court ruling upholding a state law that prohibited the possession of stun guns, in part, on the grounds that stun guns were not in common use when the Second Amendment was adopted)

The fact the individual states have their own versions of the 2A indicates it was thought about by the individual state governments so, Imo, the way I see it, the main question of the intent of the 2A is whether the 2A applied to the states, or not.

But, right or wrong, the 14A clarified the BOR's did apply to the states.

It makes sense to me as the BOR are Inalienable Rights; Inalienable Rights are natural rights that we are all born with.

It just doesnt make sense, to me anyways, that Inalienable Rights were ever meant to be re-interpreted the in the 'light of current circumstances' whenever the wind blows no matter the direction.


(ETA: Whether the 14th has been abused for .Fed power grab is another (imo, worthy) discussion but not suitable for THR. )

 

[Tommygunn]

This getting political. In a functioning democracy, it should not be necessary to take up arms to resist tyranny. That is done by voting, or by peaceful demonstrations. In that case, the people who take up arms and resort to violence are those supporting tyranny, because they are not willing to abide by majority rule. (Once again, this was something the pro-slavery people did in 1861.)

I think our democracy has problems, but I feel they result from things that defy majority rule, like the the way Senate seats are distributed, and as a consequence of that, the way the Electoral College works. I think the solution to our problems is MORE democracy. I hope that is not a political opinion that forces the thread to be closed.

We DON'T live in a democracy, "functioning" or otherwise. We live in a republic. A representative republic, if you will. The Founders gave us that .... "if (we) can keep it," to paraphrase Ben Franklin. Two and a half millenia ago, Socrates advised, "the problem with democracies is that two fools out vote one wise man." That sounds a bit cynical, but the same meaning can be found by those who consider democracy to be mob rule.
We have the electoral college to keep big city/population centers from dominating the country. Without it, California, New York City, and a couple other heavily populated areas would be electing presidents.

 

[AlexanderA]

We DON'T live in a democracy, "functioning" or otherwise. We live in a republic.

This statement mixes apples and oranges. A "republic" describes an institutional framework (i.e., something that is not a monarchy). "Democracy" is a governing philosophy, that government is by the consent of the governed. These are independent variables. You can have dictatorial republics, just as you can have democratic monarchies. The U.S. is a democracy expressed in a republican form.

There is plenty of historical evidence that the Founders believed in democracy. Certainly, by the time we get to Jackson and Lincoln, politicians were talking about democracy all the time. Even a foreign observer, Alexis de Tocqueville, entitled his book "Democracy in America."

Today, the rubric "this is a republic, not a democracy" is a marker for the Far Right. By using it, you label yourself.

 

[GEM]

We have wandered way off the opinions of Alan D. Close to a close. So unless you are specifically commenting on something Alan said, let it go.

 

[gyp_c2]

Today, the rubric "this is a republic, not a democracy" is a marker for the Far Right. By using it, you label yourself.

Maybe Constitutional Republic is more apropos.

 

[Monac]

We DON'T live in a democracy, "functioning" or otherwise. We live in a republic. A representative republic, if you will. The Founders gave us that .... "if (we) can keep it," to paraphrase Ben Franklin. Two and a half millenia ago, Socrates advised, "the problem with democracies is that two fools out vote one wise man." That sounds a bit cynical, but the same meaning can be found by those who consider democracy to be mob rule.
We have the electoral college to keep big city/population centers from dominating the country. Without it, California, New York City, and a couple other heavily populated areas would be electing presidents.

Oh, boy, this talking point. Here is what I think of the whole "We're not a democracy! We're a Republic!" thing:


You go argue with Beau. He's smarter than I am.

Now, would you like to say something relevant and meaningful?

 

[Monac]

Let's look at this another way. Forget the 2A. Why should anybody have the right to deny me the option of owning a firearm. or knife, or car, or TV, or computer or anything?
Answer; nobody, and especially not any govt.

Add "slaves" to that list, and drop cars, computers, and TV's, and you are saying exactly the same thing the secessionists said in 1861. That is a comparison I keep trying to point out to pro-gun people as a way to get everything you want taken away, but they don't want to see it.

Oh, and is mustard gas included under "anything"? How about plutonium? Because I really hope not, but you didn't say.

 

[theotherwaldo]

The Constitution and the Bill of Rights do not belong to the government and it is not up to the government to interpret the Constitution or the Bill of Rights.

It certainly isn't up to Mr. Dershowitz or any other lawyer to interpret it.

The Constitution and the Bill of Rights belong to the citizens of our country and exist to control the government.

They are the contract that allows the government to exist.

If the government tries to break this contract, the Second Amendment is supposed to come into play.

That is why the government hates the Second Amendment.

 

[Dale Alan]

We have wandered way off the opinions of Alan D. Close to a close. So unless you are specifically commenting on something Alan said, let it go.

Bump for those that don't pay attention when a Mod asks politely .

 

[Monac]

The Constitution and the Bill of Rights do not belong to the government and it is not up to the government to interpret the Constitution or the Bill of Rights.

The Constitution and the Bill of Rights belong to the citizens of our country and exist to control the government.

They are the contract that allows the government to exist.

If the government tries to break this contract, the Second Amendment is supposed to come into play.

That is why the government hates the Second Amendment.

The only thing I can think of to say to this is "Says you". This sounds a lot like sovereign citizen stuff. When has that ever worked out for anybody?

And what do you mean when you say "the government hates the Second Amendment"? I am really curious, because within recent memory it seemed to me that the actual people who ran the government loved the Second Amendment, and appointed Supreme Court justices who interpreted it like Dershowitz does. In fact, those people had every expectation that armed Second Amendment supporters would turn out to support THEM. Do you think they were wrong?

 

[theotherwaldo]

You seem to be referring to individual politicians who make populist statements about how they love our rights but keep reinterpreting those rights in narrower and narrower ways... .

My rights are mine.
Your rights are yours.
Don't go wishing them away.

 

[Poper]

Oh, and is mustard gas included under "anything"? How about plutonium? Because I really hope not, but you didn't say.

These are not weapons carried by the soldier. One could own/use a "battleship" only when he was granted a letter of marque and reprisal.
I would venture to guess crew served weapons would not be considered weapons under the "keep and bear arms" cause as it would be very difficult, if not impossible for the individual to carry one. JMHO, of course.

 

[Monac]

Yes, I am not a constitutional lawyer. That is why I started my last post with "I personally think".

Thank you for your courteous reply. I think that in the part of it that I show above, you have stated the heart of the issue, because what you say is true for me as well, and I should have said so as explicitly as you did.

Given the truth of that, I would suggest it would be a bad idea for either of us to take absolutist, non-negotiable positions. I would recommend that course to others as well.

I might suggest, a political minority cannot defy the will of the majority forever, and that the longer it does so, the worse things work out for the minority in the end. That, however, is just as debatable as the other things I have said, and is probably a political idea to boot.

 

[readyeddy]

The Dershow is entertainment and Alan Dershowitz does a nice job of speaking on the show. Most lawyers wouldn't be able to sound as charismatic or engaging. Also, Mr. Dershowitz is academically honest by acknowledging Heller and admitting that he didn't read the briefs and cannot opine on how he would rule if he were one of the justices.

But if you boil down his argument, it is that there are a lot of guns in the US and a lot of gun violence, and the two are related, and the word "regulated" in the 2A must be read to allow the government to restrict weapons and gun types. He doesn't talk about the prefatory and operative clauses of the 2A or what the word "regulate" meant to the founding fathers. Basically, the Code of Federal Regulations and the Administrative Procedures Act were born in the 20th century, which means that the government didn't regulate or control citizens' live to the extent it does today. Back then, regulate just meant to be adequately equipped and in working order.