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"collective" right?

Discussion in 'Legal' started by WeedWacker, Jan 16, 2009.

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  1. WeedWacker

    WeedWacker Member

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    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?"
     
  2. everallm

    everallm Member

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    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.......)
     
  3. greenr18

    greenr18 member

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    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
     
  4. expvideo

    expvideo Member

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    +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.
     
    Last edited: Jan 16, 2009
  5. RDak

    RDak Member

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    To me, after Heller, it means there is both a collective and individual right to keep and bear arms.
     
  6. expvideo

    expvideo Member

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    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.
     
  7. RDak

    RDak Member

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    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
     
  8. TexasRifleman

    TexasRifleman Moderator Emeritus

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    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.
     
  9. RDak

    RDak Member

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    And one of those hardcore people still clinging to it Texas is the soon to be Attorney General, Eric Holder. :mad:
     
  10. Duke of Doubt

    Duke of Doubt member

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    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."
     
  11. TexasRifleman

    TexasRifleman Moderator Emeritus

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    No but King James did, close enough :)

    (just kidding, kidding)
     
  12. legaleagle_45

    legaleagle_45 Member

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    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.
     
  13. expvideo

    expvideo Member

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    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.
     
  14. Cyborg

    Cyborg Member

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    "Well Regulated"

    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
     
    Last edited: Jan 16, 2009
  15. expvideo

    expvideo Member

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    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."
     
  16. Cyborg

    Cyborg Member

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    "Shall Not" In Decalogue

    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
    Nuff said.

    Cyborg
     
  17. expvideo

    expvideo Member

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    God didn't write the bill of rights either.
     
  18. natman

    natman Member

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    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.
     
    Last edited: Jan 16, 2009
  19. FromMyColdDeadHand

    FromMyColdDeadHand Member

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    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.
     
  20. OMDP

    OMDP Member

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    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).
     
  21. SCKimberFan

    SCKimberFan Member

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    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...
     
  22. gc70

    gc70 Member

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

    Cyborg Member

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    "Well Regulated Militia" Here We Go Again

    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
     
  24. cbrgator

    cbrgator Member

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    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!!
     
  25. Art Eatman

    Art Eatman Administrator Staff Member

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    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.
     
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