2nd Amendment's Actual Meaning?

[natman]

Ive been debating this freakdork for months. He always dodges my questions and tries to make things up and distorts things to make it into his own context. The People as you said is clearly the people of the US, or persons. How could it be a collective right if the framers were individualists? How could ''bear arms'' mean render military service if it would say ''keep and render military service''; where would ''keep'' fit in? Plus I noticed he made up that definition also. The only definitions I could find would argue as follows: ''A well functioning disciplined group of individuals being necessary to the protection of the state from crime, tyranny, and invasion; the right of the persons of the US to own, possess, and carry firearms shall not be infringed ''. You can debate him if you want; but just watch out for his dirty trickery like straw man, deleting comments, running away, side stepping, poisoning the well, and personal attacks.

I've been debating with delusional idiots like that for 40 years. The good thing is that you don't have to anymore.

It's been decided. US Supreme Court, DC v Heller

www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

"Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

It's an individual right, just like all the others in the BoR. The collective right theory has been thoroughly debunked and is as dead as communism or eugenics.

 

[hugh damright]

Thomas Jefferson said "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed".

Jefferson was saying that there are two rules that help us decide the limits of federal jurisdiction ... sometimes people take this second rule out of context and end up turning it against the first rule, so please allow me to provide a bit more of Jefferson's quote:

"It may be impracticable to lay down any general formula of words which shall decide at once, and with precision, in every case, this limit of jurisdiction. But there are two canons which will guide us safely in most of the cases. 1st. The capital and leading object of the constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States: to make us several as to ourselves, but one as to all others ... 2d. On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

The People as you said is clearly the people of the US, or persons. How could it be a collective right if the framers were individualists?

It seems to me that the Framers were federalists and antifederalists, and the antifederalists were States' righters ... I don't know why people think the framers were libertarians who didn't believe in collective rights ... I think they framed a system which is founded upon collective rights.

The thing is, if we construe the Second Amendment to only regard a personal right and not a collective right, then that is what we had under King George ... Virginians were once British Subjects, with British Troops here to dominate us ... we had our personal arms, but we did not have a free State ... we declared that a standing army in times of peace was a danger to liberty ... I suppose libertarians read this as a declaration that a standing army endangers our personal liberty, but I think it primarily regards the political liberty of the State ... as defined in Webster's 1828 Dictionary:

LIB''ERTY, n. [L. libertas, from liber, free.]
...
4. Political liberty, is sometimes used as synonymous with civil liberty. But it more properly designates the liberty of a nation, the freedom of a nation or state from all unjust abridgment of its rights and independence by another nation. Hence we often speak of the political liberties of Europe, or the nations of Europe.

Virginia declared that a standing army is a danger to liberty, and that the proper/safe/natural defense of a free State is militia consisting of the people of that State. Then in the 1860's Virginia voted against the 14th Amendment and was placed under military rule, the very thing that the Second Amendment is intended to guard against ... Virginians had our personal arms, but we did not have a free State ... if we construe the Second Amendment so that it only regards the personal RKBA, then we seem to miss the primary intent.

Urriquez-Verdugo v. US, 1992 or 1993, spoke extensively about "the people" as individuals.

Yes, thanks, that's the case I was thinking of ... what I see is:

"The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" 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."

I agree that this is generally true ... so if the Second Amendment said that no person shall have his RKBA infringed it would apply to foreigners visiting here, but since it says that the people shall not have their rkba infringed it does not apply to foreigners visiting here ... but I don't see this as an assertion that the US Constitution always uses the term "the people" to refer to individuals and never as a collective or State. And the assertion seems untenable to me.

 

[DammitBoy]

If the founders believed that the 2nd amendment proclaimed that the right to bear arms was a natural right that could not be infringed upon by the government...

Why would they leave the giant loophole of allowing the States to infringe upon that right as they saw fit? Wouldn't doing that completely negate the point of the 2nd?

Doesn't the 10th amendment say that unless powers are specifically mentioned those powers and rights belong to the people?

 

[ConstitutionCowboy]

In other words, the argument was that the various State Bill of Rights already contained in the state constitutions could not be repealed by the Federal Constitution so those protections are in place and can not be considered within the power of the federal govenment to over ride...

So why have a Bill of Rights that singled out the feral(federal) government if it wasn't necessary to begin with?

In other words, the argument was that the various State Bill of Rights already contained in the state constitutions could not be repealed by the Federal Constitution so those protections are in place and can not be considered within the power of the federal govenment to over ride...

To which Madison responded that some states do not have a Bill of Rights or have an inadequate Bill of Rights, which would mean that the Feds could do what they wanted in those states.

That flies in the face of the supremacy of the Constitution and feral(federal) law. No provision in a state constitution or law can negate a constitutional article or law. A right protected by a state constitution is subordinate to any legitimate power to create contrary law under the Constitution. Ergo, it doesn't matter whether a right is protected in a state constitution or not when it comes to whatever constitutional power exists in the Union.

Now if Madison intended the entire Bill of Rights to apply to the states, can you explain why Madison included this clause: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." Your argument above about "congress shall make no law" is adequate to explain freedom of press, but it does not explain the right to a jury trial in criminal cases.

That "No state shall ..." didn't make it into the Constitution. It wouldn't be necessary with the "Bill of Rights" applying to the states as well as the feral(federal) government.

Why would the Anti-Federalists, who opposed a strong central government, insist on a Bill of Rights that would give the central government sole control over the most precious of personal liberties?

Well, for one thing, the "Bill of Rights" gave NO control of our rights to ANY branch or level of government. The "Bill of Rights" FORBIDS any branch or level of government from infringing, abridging, or otherwise screwing with our rights as protected by those added articles. In some of those protections, government is commanded to provide certain processes of law and assistance(Sixth Amendment).

IF the Bill of Rights was intended to apply to both the national government and the states, why did everyone (the people, legislators, and judges) immediately forget that fact?

It wasn't immediate, nor "forgotten" by everyone.

The bottom line, undeniable intent is expressed by Madison with this:

"...they limit them too much to agree with the common ideas of liberty."

If some rights were limited too much by some of the states, it's obvious that Madison and all who approved the "Bill of Rights" fully intended the "Bill of Rights" to supplant the overly restrictive state limits on the rights of the people. There is no other genuine meaning that can be derived from this. It is clearly not gibberish.

Woody

 

[legaleagle_45]

Originally Posted by ConstitutionCowboy
So why have a Bill of Rights that singled out the feral(federal) government if it wasn't necessary to begin with?

That was the arguement being made by persons who opposed the addition of a Bill of Rights.... Madison was refuting it.

Originally Posted by ConstitutionCowboy
That flies in the face of the supremacy of the Constitution and feral(federal) law.

I would tend to agree with you. The persons opposing the adoption of the Bill of Rights were grasping at straws with this argument.

Originally Posted by ConstitutionCowboy
That "No state shall ..." didn't make it into the Constitution. It wouldn't be necessary with the "Bill of Rights" applying to the states as well as the feral(federal) government.

Irrelevant. What it shows at the very least is that Madison did not intend for the proposals he submitted to the 1st Congress to apply to the states except for the one which specifically referenced the States. The reason why that provision was not adopted (according to conventional wisdom) was because the object of the BoR was to limit federal power created by this new Constitution, not state power.

 

[gc70]

If some rights were limited too much by some of the states, it's obvious that Madison and all who approved the "Bill of Rights" fully intended the "Bill of Rights" to supplant the overly restrictive state limits on the rights of the people.

Madison was a proponent of a strong federal government and even advocated giving Congress the authority to negate state laws. That was a losing proposition and Madison accepted it.

Madison was against a Bill of Rights. Again, that was a losing proposition and Madison accepted it.

To his credit, Madison did fulfill a campaign promise by collecting the demands of various state ratifying conventions and combining them in a draft Bill of Rights.

The draft of the Bill of Rights that Madison introduced in Congress limited federal power over many rights and would have limited state power over only a few rights (although the state limitations were removed during Congressional debate).

 

[ConstitutionCowboy]

(although the state limitations were removed during Congressional debate).

See? Madison intended for there to be limits on states powers vis-a-vis rights of the people. The specific mention of the states wound up not being necessary. Since only the First was feral(federal) specific, all the rest end up being universal.

Woody

 

[Carl N. Brown]

And there is a problem discusing the concept of "the people" with anyone from New York. The paternalistic State of New York uses "the People" to mean "the State", as in the prosecutor on "Law and Order" announcing "The people will prove...." when he means the state will present a case. That is a whole different mindset when it comes to the Bill of Rights protecting the rights of the people against infringement by the government, when one thinks of "the People" as "the State".

 

[gc70]

The "Bill of Rights" FORBIDS any branch or level of government from infringing, abridging, or otherwise screwing with our rights as protected by those added articles.

To what does the language in the Constitution apply?
Correct answer = the federal government created by the Constitution.

Does any of the language in the Constitution apply to the states?
Correct answer = yes, when "states" are specifically cited.

Where in the first nine amendments amendments is it specified that they apply to the states?
Correct answer = there is no such statement.

As to how constitutions work, Chief Justice Marshal summed it up nicely:

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

 

[LouisCipher777]

why, when all the other rights in the bill of rights are individual rights (except the 9th and 10th which specifically talk about the states) would they add a collective right?

your right to self defense with the most efficient means available was given to you by nature, not some old piece of parchment, and several people actually opposed the bill of rights because the constitution spelled out the only powers the government had, all the rest were retained by the people, so at the time it seemed unnecessary.

read the federalist papers and the letters of thomas jefferson some time and you would know the answer

Does any of the language in the Constitution apply to the states?

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

they might not have intended it that way, but they wrote in the mechanism for making changes to the constitution for a reason

 

[gc70]

See? Madison intended for there to be limits on states powers vis-a-vis rights of the people. The specific mention of the states wound up not being necessary. Since only the First was feral(federal) specific, all the rest end up being universal.

Woody, you confuse unnecessary with rejected. You also seem to think the first Congress made the shift from a solely federal prohibition to a general prohibition... without any recorded discussion of such a monumental change.

You are more than welcome to search for any Congressional debate supporting you position. The Bill of Rights was introduced on June 8, 1789 and discussion starts at page 451 of the Annals of Congress, 1st Congress, 1st Session.; the majority of debate is between pages 730 and 808.

 

[Frank Ettin]

Whatever else, the matter has been resolved by the Supreme Court in (1) a line of cases holding that the Bill of Rights does not apply to the States; and (2) a subsequent line of cases applying rights enumerated in the Bill of Rights piecemeal to the States through the 14th Amendment. And it will be on such bases that real life cases and controversies coming before the courts will be decided.

 

[ConstitutionCowboy]

Woody, you confuse unnecessary with rejected. You also seem to think the first Congress made the shift from a solely federal prohibition to a general prohibition... without any recorded discussion of such a monumental change.

There wouldn't be any such mention of a monumental change. To begin with, there was no such mention that the "Bill of Rights" should only apply to the Union except in the case of the First Amendment.

It's a "Bill of Rights" of the people. What train of logic would make any sense if the rights of the people be protected from infringement by one level of government and not another? Especially when the level of government allowed to infringe is inferior to the level prohibited? It's like forbidding a surgeon to give you an inoculation but allowing a nurse to amputate an arm! Give me a break! Give the Founding Fathers a break, too! They wrote and passed the "Bill of Rights" and nothing I've claimed about the scope of the "Bill of Rights" is contrary to what they wrote and passed, nor fly in the face of the intent of those Founding Fathers.

And as for the following from fiddletown:

Whatever else, the matter has been resolved by the Supreme Court in (1) a line of cases holding that the Bill of Rights does not apply to the States; and (2) a subsequent line of cases applying rights enumerated in the Bill of Rights piecemeal to the States through the 14th Amendment. And it will be on such bases that real life cases and controversies coming before the courts will be decided.

If you think or advocate that their biased and agenda driven "rulings" amount to "resolved", you sell your judicial integrity short. If such things have been "resolved", what do you call the reversal of those resolute calls? If you attribute those changes in resolve to the Fourteenth Amendment, why has the Court continued to ignore or selectively spoon feed us tiny morsels from that part of the Constitution? I know the answer and I'll save you the trouble: It continues to be bias and agenda - the bias and agenda they possess that got them appointed and confirmed to the Court in the first place.

Now, I know you guys are having fun, but so am I. I'm having fun and being serious at the same time. I like making sense.

Woody

 

[basicblur]

Mebbe I'm wrong, but didn't the 4 dissenting justices in Heller acknowledge the 2nd was an individual right, even though they voted against Heller?

If so, that would mean although Heller was 5-4, the 2nd being an individual right would be 9-0?

 

[legaleagle_45]

Mebbe I'm wrong, but didn't the 4 dissenting justices in Heller acknowledge the 2nd was an individual right, even though they voted against Heller?

Correct, however they tied that right to membership in a well regulated militia (or at least they seemed to--- they were clear that the DC laws did not violate the 2nd, and they babbled about well regulated militias alot but they were really foggy on what they thought it actually protected).

 

[gc70]

Give me a break! Give the Founding Fathers a break, too! They wrote and passed the "Bill of Rights" and nothing I've claimed about the scope of the "Bill of Rights" is contrary to what they wrote and passed, nor fly in the face of the intent of those Founding Fathers.

The Founding Fathers believed in State sovereignty. Personal allegiance to one's state was extremely strong, even as late as the Civil War (i.e. Robert E. Lee's refusal to command the Union Army because his state was seceding). And the Founding Fathers were quite satisfied with the fact that the different states had different constitutions and laws. Had they felt the need to change a particular state's laws, they were at liberty to do so.

The States joined together and gave up part of their sovereignty to form a federal government to provide a more powerful, unified entity for defense and foreign relations, as well as to arbitrate interstate relations. Some of the Founding Fathers (the Anti-Federalists) feared the new federal government would over-reach the enumerated powers it had been granted. They insisted on amendments to the new government's constitution to specifically prohibit the new government from interfering with personal rights and liberties.

The Founding Fathers had just fought a long and bitter war to be the masters of their own destiny. And they were the leaders and legislators in their respective states. But you would have us believe that the Founding Fathers demanded that the new federal government protect them from themselves. You would have us believe that the Founding Fathers were so incapable of guarding personal rights and liberties locally in their respective states that they insisted on the new federal government doing so for them.

 

[DammitBoy]

If the founders believed that the 2nd amendment proclaimed that the right to bear arms was a natural right that could not be infringed upon by the government...

Why would they leave the giant loophole of allowing the States to infringe upon that right as they saw fit? Wouldn't doing that completely negate the point of the 2nd?

 

[hugh damright]

If the founders believed that the 2nd amendment proclaimed that the right to bear arms was a natural right that could not be infringed upon by the government...

Why would they leave the giant loophole of allowing the States to infringe upon that right as they saw fit? Wouldn't doing that completely negate the point of the 2nd?

Not at all. The point of the Second Amendment, like the rest of the USBOR, is to prevent misconstruction or abuse of federal powers.

I don't think it's a question of what the Founders allowed the States to do, I think it's a question of what the States allowed the feds to do, and the States did not allow the feds to have jurisdiction over our very rights.

It's not a loophole, it's a limited federal government. Consider what Jefferson said about the First Amendment:

"_Resolved_, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;" and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference." -Thomas Jefferson, Draft of Kentucky Resolutions

If we apply Jefferson's sentiment to the Second Amendment, we get:

"no power over the [RKBA] being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of [the RKBA] may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the [RKBA], and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference."

 

[William Lee]

I loved reading DC v. Heller in law school. One of Scalia's finer and more humorous opinions if you asked me.

 

[ConstitutionCowboy]

And the Founding Fathers were quite satisfied with the fact that the different states had different constitutions and laws. Had they felt the need to change a particular state's laws, they were at liberty to do so.

To what end? It's already made a moot point by the Supremacy Clause in Article VI.

The States joined together and gave up part of their sovereignty to form a federal government to provide a more powerful, unified entity for defense and foreign relations, as well as to arbitrate interstate relations. Some of the Founding Fathers (the Anti-Federalists) feared the new federal government would over-reach the enumerated powers it had been granted. They insisted on amendments to the new government's constitution to specifically prohibit the new government from interfering with personal rights and liberties.

Tell me, why do you bring up a supposed concern the several states had over possible usurpation of power by the Union and fallaciously equate it to infringing upon personal rights and freedoms when some of those states had inadequate protections, some had no protections, and some had "protections" that were actually intrusive? I see little to no desire in those states to protect those rights and freedoms of the people. There is only one amendment that would fit the "state concern" criteria and that would be the First Amendment which, incidentally, did apply strictly to the Union.

The Founding Fathers had just fought a long and bitter war to be the masters of their own destiny. And they were the leaders and legislators in their respective states. But you would have us believe that the Founding Fathers demanded that the new federal government protect them from themselves. You would have us believe that the Founding Fathers were so incapable of guarding personal rights and liberties locally in their respective states that they insisted on the new federal government doing so for them.

That's exactly what I'm saying - just as Madison said. Whether it was for them because they were incapable of doing it themselves in their respective states doesn't matter. It was necessary BECAUSE of the mish-mash of protections - some non-existent - of the rights of the people across the several states.

If we apply Jefferson's sentiment to the Second Amendment, we get:

You can't legitimately equate anything about the First Amendment to anything about the Right to Keep and Bear Arms. The First is all about uses of power, and the RKBA is simply about keeping and bearing - not using - arms. The powers mentioned in the First can be abused, there is nothing about the simple keeping and bearing of arms that can be abused. It's no more abusive than keeping a drawer full of socks and wearing them.

Woody

 

[mack]

"Whatever else, the matter has been resolved by the Supreme Court in (1) a line of cases holding that the Bill of Rights does not apply to the States; and (2) a subsequent line of cases applying rights enumerated in the Bill of Rights piecemeal to the States through the 14th Amendment. And it will be on such bases that real life cases and controversies coming before the courts will be decided."

I am agreeing with fiddletown on this, he is right. You all can argue all you want about the original intentions of the founders - as to the applicability of the BOR to the states - but the incorporation doctrine of the 14th amendment is never going to be revisited by either conservative or liberal justices. That is settled law - until or unless this present constitution and form of government ceases to exist.

Also, given that all nine justices endorsed an individual rights view of the second amendment in Heller and that they will within the next 10 days apply that right to the states as they have with most of the BOR when dealing with fundamental enumerated rights - there is not a chance that the individual rights view will be reversed by a future court - just as no future court will ever reverse the fundamental views endorsed by Roe vs Wade.

A future liberal majority might well work to limit the right and allow a lot of infringements, but they will never go back to denying it is an individual right or approving laws that ban all guns.

As for me, I will focus on doing whatever I can to ensure that the RKBA is as unencumbered of legal infringements as possible - to see strict scrutiny applied as much as possible - to focus on the possible future and not argue over past issues that will never bear fruit.

To the original poster, if someone wants to believe that the 2nd does not protect an individual RKBA - well you can't make someone change what they choose to believe - the consensus of legal scholars today after years of debate is that it does protect an individual right, even most anti-gun politicians acknowledge it as an individual right, and most importantly the USSC by a margin of 9 to 0 aknowledge it as an individual right (even if they disagree about the scope of that individual right). Within the next two weeks the USSC will apply that individual right to the states, to the nation, and to the people as a whole. So unless you enjoy arguing for the sake of arguing (as some do) then just let him believe whatever he wants and know that in the view of the American people, in the view of the courts, in the view of the majority of politicians, and in the view of the majority of historians and legal scholars he is wrong. His view has not and will never prevail in regards to the 2nd amendment - so leave him to tilt at windmills - he seems to enjoy it so.