2nd Amendment vs 1st Amendment Strength, discuss...

[Keaner]

OK-- This came up the other day in another one of my 2vs 30 gun arguments the other day. My partner in this argument against the facists in my dorm made a severely interesting argument that left me silent the rest of the night thinking about it. I thought you would like to have this shared:

His point was that due to the wording of the 1st and 2nd, that the 2nd amendment is actually much more powerfully worded than the 1st.

His main point had to do with these lines:
1st: Congress shall make no law respecting ...
2nd:...the right of the people to keep and bear arms, shall not be infringed.

Basically, his argument was that the 1st only protects the people from laws of congress (and such the government). This means that an employer etc or private owner of property could stop you from speaking as you wish.

Now, compare that to the wording of the 2nd amendment "shall not be infringed". To me (him actually), this means that under no condition can someone stop you from owning/carrying an arm. So basically, NOONE has the right to keep me from bearing arms, so, it is my right under the 2nd amendment to carry wherever and whenever I wish, and it is illegal under the constitution for any individual to "infringe" this right.

In conclusion, the argument is: The first amendment's purpose is only to keep the government from revoking freedom of speech, whereas the 2nd amendment keeps EVERYONE from infringing any right to bear arms.

PLEASE correct us if our train of thought is wrong. I just wanted a more definative point on this argument.

 

[buy guns]

i think thats an interesting way of looking at it. i will have to think about that for a little bit.

 

[Justin]

That argument gets somewhat sticky when one considers it in light of private property rights.

The easy answer would be to point out that the Constitution and specifically the Bill of Rights set out limitations to federal power and therefore do not apply to individuals who wish to make the rules on their own private property.

 

[Keaner]

Justin, that is an excellent point, but I still find it odd that the first amendment makes the point specifically that "congress shall make no law", whereas the second amendment makes no such justification at all.

I figured it would lead to interesting discussion either way.

 

[Standing Wolf]

I suspect the founding fathers were trying to avoid repeating phrases.

 

[Henry Bowman]

I've read it that way for quite some time now. Good luck finding a single judge who will agree.

SW - You may be right, but I think that all the language was debated enough that it was more that just trying not to offend the sensibilities of Madison's high school creative writing teacher.

 

[Bog]

I take it as the Fathers from attempting to avoid repetition, as all good grammar usage does.

I take it as the spirit of the word, as the fact that America is a thought, not a piece of land.

We speak what we think is true - without fear our favour.

We defend what's right - without fear or favour.

I think America is much simpler than it is being made by all the lawyers in Washington. I think America is very simple.

"Free now. Free Forever. Free in the man. Free in the Country."

Maybe I should write about this?

 

[Standing Wolf]

Maybe I should write about this?

I think you should. The idea of "America is a thought, not a piece of land" is worth enlarging upon.

 

[Graystar]

Your train of thought is wrong, but only because it doesn’t have enough information. All the rights in the Bill of Rights are equally expansive and defended with equal strength.

Despite the assertions of people on this board that the Constitution and Bill of Rights were written in plain language, the fact is that these documents are rife with legalese. Remember, the Constitution was written by lawyers, and at a time when the legal profession was fairly mature. There are many legal concepts embodied in the documents, and if you don’t understand those concepts then you can’t fully understand the Constitution and the Bill of Rights.

One of these concepts is that of a bill of rights. More than just a catchy title, the term “bill of rights†is a legal term that carries with it a context under which all its contents should be considered. This context is that all the rights enumerated are pre-existing rights. The rights enumerated are neither created nor limited nor expanded by a bill of rights. They are simply listed for the purpose of informing an authority that it has no power over them. That is the legal definition of a bill of rights.

It is true that the Bill of Rights is directed solely at the federal government. But that does not mean that the states can ride roughshod over the people. Quite the contrary. The difference is in levels of protection. It is the responsibility of the state to protect your rights from violation by other people. That’s why the state prosecutes crimes and just about everything else. But when the state violates your rights (or fails to protect them,) THAT is when the federal government steps in and corrects the situation.

A perfect example is the 10 Commandments case in Alabama. Roy Moore was essentially the state. So the plaintiffs in the case looked toward the federal government to defend their First Amendment rights, which the feds did.

The bottom line is that the actual wording used in the Bill of Rights doesn’t mean much, as none of that wording ever tries to define any rights. There are rights that are protected under the Ninth Amendment, such as privacy and a woman’s right to choose, which are not defined anywhere in the Constitution or Bill of Rights. Yet, these rights get the same protections as those rights that are named.

Alexander Hamilton didn’t even want a bill of rights. Here’s his argument:

“...that bills of rights...are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed...it would furnish, to men disposed to usurp, a plausible premise for claiming that power. They might urge with a semblance of reason...that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government."

This is pretty much what has happened to gun rights. Politicians used the fact that the 2nd Amendment doesn’t apply to individuals (which is correct) to claim that, therefore, individual have no right to possess firearms (which is incorrect.) Individuals have a right to possess firearms for personal defense. However, this right is not enumerated. Its protection is guaranteed by the Ninth Amendment...not the Second. But no one has seemed to have figured that out yet.

 

[Keaner]

GrayStar-- I would have to disagree. The purpose of the Bill of Rights was to acknowledge the rights of the individual. The entire purpose of the Bill of Rights was to keep the government from becoming a "communial" society, instead of the shear individualistic society that the framers wanted.

Jefferson based all of his writings on the theories of Locke, which stated that the purpose of the government was to protect the rights of the individual, whereas in a Hobbesian society (as put forth in Levithan), the purpose of the government is to 'control the people' for the good of the community, IE, GB today.

Hobbes believed that humans are violent and competitive beings by nature, and the people should give up their rights to the government, who, being all powerful (like with Socrates), would determine what the people would do for the good of the community.

As is apparent throughout the writings of Jefferson in his letters(published everywhere, and many parts contained in the sigs of people on this board), Jefferson believed in a society where the government was to be held responsible for its actions, or as he stated, "held accountable".

Utilizing this, there is no way that the framers, especially Jefferson, would agree to a document that didnt explicity protect the individual completely.

As in the following quote: "The great object is that every man be armed . . . Everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)
--Patrick Henry, a good friend at the time of Jefferson, states that the purpose of the 2nd amendment is that EVERY person who considers themself able, should have a gun.

In a 1787 letter to William Stephens: “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take to arms.â€
-- In this letter, he explicitly states that the purpose of the 2nd amendment is for the individuals to be able to protect their rights from a government, or even society as a whole.

In his 1824 letter to John Cartwright, Jefferson states, “The Constitutions of most of our States assert that all power is inherent in the people; that they may exercise themselves in all cases to which they think themselves competent... that it is their right and duty to be at all times armed;â€
From this, it can be shown that Jefferson believed it was the American DUTY of every person to own and use a firearm.

“When the government fears the people there is liberty. When the people fear the government, there is tyranny.â€--Jefferson
--This shows a justificiation for the 2nd ammendment. THE PEOPLE should never be without a way to cause the government fear.

Jefferson believed that the government should work because it governs with the consent of the governed, not because it has any power over the people. This can be seen explicitly, and as shown with the support of all the framers in this famous quote: "that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;" (D of I)


Based on those quotes, and the context of the writings, I do not feel that Jefferson would EVER write a Bill of Rights without thinking directly of the individual, which he saw as the most important part of government.

 

[Graystar]

You can disagree with the details, but please don’t miss the primary point of my post, which is that there’s more to a bill of rights than meets the eye, and that it has to be view in a certain way. Here’s a link of a definition from a legal dictionary.

http://dictionary.lp.findlaw.com/sc...com&topic=d3/d3fcc94a45abaf54d3ea7a4fd8eeaf85