Hate if you must, but I honestly don't think that is wrong. That IS what the 2A was for. It was for the people to be able to band together and overthrow an oppressive government. Can you do that by yourself? The only people I know that can do that are some characters that Stallone, Schwarzy, and Willis have played. Being an individual right for a collective purpose still means its an individual right. It's been said 1000 times, the 2A isn't about hunting. I don't care what purpose they want to attach to my right, as long as it remains my RKBA.
"collective" right?
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Hate if you must, but I honestly don't think that is wrong. That IS what the 2A was for. It was for the people to be able to band together and overthrow an oppressive government. Can you do that by yourself? The only people I know that can do that are some characters that Stallone, Schwarzy, and Willis have played. Being an individual right for a collective purpose still means its an individual right. It's been said 1000 times, the 2A isn't about hunting. I don't care what purpose they want to attach to my right, as long as it remains my RKBA.
legaleagle_45
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IMHO it is only one of the reasons for the 2A... but not the only reason for the 2A. Remember that Blackstone termed the english right to arms as consisting of two components... the right of resistance (which would be the "collective" purpose) and the right of self preservation (which would be the wholly individual right of self defense).
The thesis you are employing will give the antis an opening to defeat incorporation....
No, because then it would no longer remain my right. Or at least COULD no longer remain my right, depending on the jurisdiction. My point is that I don't care for what reason anybody wants to provide for allowing me to possess, carry, and use my guns, as long as I can do those things. If its for protection against the government, for self defense, for recreation, etc.The reasons can be whatever you want. Just don't touch my stuff.
legaleagle_45
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Dang pragmatist, always messing with those who wish to justify the pragmatic result with theoretical justifications which will be accepted by them dudes and dudettes who wear them funny long black dresses....
Haha. I'm all for principle and Con law was my favorite class last semester, but at the end of the day, I'm just a guy who likes his guns. Hopefully they'll leave us alone so I don't have to incite a revolution and use the 2A for what it was meant for!
I'm all for principle and Con law was my favorite class last semester, but at the end of the day, I'm just a guy who likes his guns. Hopefully they'll leave us alone so I don't have to incite a revolution and use the 2A for what it was meant for!BHP FAN
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Y'all are worried about the wrong tidbit.The tidbit that should be worrisome is the bit about ''reasonable restrictions''.That's the bugger.What if they decide a single shot farm gun in 12 ga. is all that we ''reasonably'' need?
You are right. Sorta. We DO need to be worried about what "reasonable restrictions" constitute. OTOH, the Heller court said a handgun ban was unreasonable, so that becomes the floor. We need not worry about single shot 12 gauges. Our worries are more along the lines of an AWB, caliber restrictions, full registration, ammo serialization, CCW, to name a few.
legaleagle_45
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That is the next battle. The current battle is incorporation. If we do not win incorporation, Heller will basically be a footnote in constitutional history.
legaleagle_45
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Lucky for you that truth is an absolute defense to any action for defamation...
Primary field of "real" work involves real estate (transactional and litigation), business (ditto), bankruptcy and tax ... however, I have been know to do a little pro bono work on 2nd Amend issues. I am located in Oregon.
legaleagle_45
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First year they scare you to death, 2nd year they work you to death and 3rd year they bore you to death...
Property law is the oldest branch of the law. I found it fascinating because I am also a history nerd. Beware of the rule against perpetuities...
I'm no lawyer or student. I'm just a guy.
I don't remember the use of 'collective right' in the public debate about guns until the nation debated the Gun Control Act of 1968. In all my high school and college courses about the constitution and its origins, I found no reference to 'collective right'. It seems to be a fairly new concept.
I do see the concept of collective rights in international law, regarding the right to self-governance of an oppressed ethnic minority within a geographic region of a nation dominated by single oppressive majority. But I don't find collective right intrinsic to American law.
I do see the concept of collective rights creeping into the American system regarding institutionalized discrimination, disability rights, and so forth. But its application as a justification for gun control is very, very unique. In fact, it's probably a misuse of the concept.
Can any of you learned folks shed light?
I don't remember the use of 'collective right' in the public debate about guns until the nation debated the Gun Control Act of 1968. In all my high school and college courses about the constitution and its origins, I found no reference to 'collective right'. It seems to be a fairly new concept.
I do see the concept of collective rights in international law, regarding the right to self-governance of an oppressed ethnic minority within a geographic region of a nation dominated by single oppressive majority. But I don't find collective right intrinsic to American law.
I do see the concept of collective rights creeping into the American system regarding institutionalized discrimination, disability rights, and so forth. But its application as a justification for gun control is very, very unique. In fact, it's probably a misuse of the concept.
Can any of you learned folks shed light?
The concept is wrong. Flat out, 100% wrong. The argument at its core does not make sense. The modern collective argument is as follows:
Premises
1. RKBA is tied to service in a militia.
2. We have no militia today, closest equivalent is the National Guard.
Conclusion: Join the National Guard if you want to shoot guns.
My problem:
There are two forms of militia - organized and unorganized. The Militia Act of 1903 clarifies this by saying that every person not in an organized militia such as the National Guard is part of the unorganized militia.
The national guard is a quasi-federal organization. I hardly believe that the 2A was enacted in order to prevent the government from disarming itself. What sense would that make? It was enacted to protect the unorganized militia comprised of you and I, and all other average citizens.
Premises
1. RKBA is tied to service in a militia.
2. We have no militia today, closest equivalent is the National Guard.
Conclusion: Join the National Guard if you want to shoot guns.
My problem:
There are two forms of militia - organized and unorganized. The Militia Act of 1903 clarifies this by saying that every person not in an organized militia such as the National Guard is part of the unorganized militia.
The national guard is a quasi-federal organization. I hardly believe that the 2A was enacted in order to prevent the government from disarming itself. What sense would that make? It was enacted to protect the unorganized militia comprised of you and I, and all other average citizens.
cs133atom
I would say that the wording of the amendment is important, but the manner in which it is written is less so.
The term "bear arms" means what?
In the memorandum for the attorney general under bush, they claimed that bear arms meant things like hunting, self defence, carry and conceal, because the people are bearing arms at the time. Oh so true.
But then put this term in the context of the second amendment. All of a sudden the term bearing arms only seems to take on ONE of these meanings. This is normal in the english langauge for context to make the word mean one thing or something completely different.
The founders used the term "bear arms" whilst talking about the second amendment only in terms of being able to be in the militia. In fact
"but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
Is synonymous with
"but no person religiously scrupulous shall be compelled to bear arms."
And i think it is here that some people have a problem. The actual construction is simple enough, though some might try to make it say something it is not.
I would say that the wording of the amendment is important, but the manner in which it is written is less so.
The term "bear arms" means what?
In the memorandum for the attorney general under bush, they claimed that bear arms meant things like hunting, self defence, carry and conceal, because the people are bearing arms at the time. Oh so true.
But then put this term in the context of the second amendment. All of a sudden the term bearing arms only seems to take on ONE of these meanings. This is normal in the english langauge for context to make the word mean one thing or something completely different.
The founders used the term "bear arms" whilst talking about the second amendment only in terms of being able to be in the militia. In fact
"but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
Is synonymous with
"but no person religiously scrupulous shall be compelled to bear arms."
And i think it is here that some people have a problem. The actual construction is simple enough, though some might try to make it say something it is not.
Legaleagle
Which tells us one thing, that the 2A is not a direct translation from british common law on the issue of weapons. Changes were made, not only deliberatly, but also because in the near 100 years and the differing land that the americans were on, the whole situation shifted.
Of course it is. But i see the right of resistance as being protected through the right to keep and bear arms. It is protected by default almost.
Although the "unalienable right" was not considered so "unalienable" in England. This was something that began to appear more and more and the americans were the ones who made it more "unalienable" than it had ever been.
But the point i am making is this. Is there a direct corrolation between this right to self defence in england that was asserted in the English BoR, to the introduction of the second amendment 100 years later?
Or, is there a direct corrolation between the ENglish BoR and the 9A and 10A?
I have come across little if no evidence to suggst this. I would say that pennsylvania also believed this and those in the process of writing and passing the 2A had sufficient knowledge of what was going on in pennsylvania to make this clear in the 2A, but they did not. WHy not? That is a question that may be unresolvable.
But certainly there were two groups at the time, one which saw the right to bear arms as being for personal defence and those which saw it only for the defence of the state.
Which did the 2A follow?
Well yes, which is just another reason to ask why the founders did not use the phrase "the people have a right to bear arms for the defence of themselves and the State".
WHy do you not agree with me about massachusetts? North Carolina may have been deemed inperfect, but then they obviously knew what they wanted, you would have thought.
Yes of course. And i know where you are going with this. Your claim that the right to keep arms inherently holds the right to self defence.
I disagree. I think that the changes that went on at the time lead to a divergence. That the right to self defence was protected by the 9A and 10A.
The first version of the amendment was separated by a semi colon, the RKBA and the religiously scrupulous part. The second was not. The third was, the fourth was not, then they took out the religiously scrupulous part.
What exactly are the similarities between the rights present in the English BoR and those that made it into the 2A? Almost nothing.
DId the founders share the view that the right to keep arms was a protection of the right to self defence from english common law, or were they more interested in protecting the right of people to keep arms so they could have an effcient militia?
As with the previous post where i have said that bearing of arms can mean many things but due to the context of the amendment it means only that individuals can be in the militia. I would also suggest that the context of the amendment also suggests that what is protected is only the right to keep arms, so that the militia can have a ready source of weapons.
The first part is simple, he did not want people able to exclude themselves. Obvious in the light of the 1792 militia act which could force people to be in the militia.
I would also say that the he uses the term "keeping arms" in the sense of having a recourse to a standing army, ie, with the weapons kept by individuals there is a ready source of arms for the militia.
You cannot depend on the militia, quite true, does it exist in the USA today? is a question many people ask, because the militia at present is almost non-existant. SO individuals with arms means that the militia exists in spirit but is not deemed necessary in the circumstances (and maybe i should add a "yet" to that).
The one thing i am not really able to get around is why preventing people bearing arms would lead to the violation of the keeping of arms. I can only assume that he would think that if the US govt could prevent people from being in the militia then there is no point in them having guns, so the feds could prevent this. Makes you wonder exactly what he did say.
Which tells us one thing, that the 2A is not a direct translation from british common law on the issue of weapons. Changes were made, not only deliberatly, but also because in the near 100 years and the differing land that the americans were on, the whole situation shifted.
Of course it is. But i see the right of resistance as being protected through the right to keep and bear arms. It is protected by default almost.
Although the "unalienable right" was not considered so "unalienable" in England. This was something that began to appear more and more and the americans were the ones who made it more "unalienable" than it had ever been.
But the point i am making is this. Is there a direct corrolation between this right to self defence in england that was asserted in the English BoR, to the introduction of the second amendment 100 years later?
Or, is there a direct corrolation between the ENglish BoR and the 9A and 10A?
I have come across little if no evidence to suggst this. I would say that pennsylvania also believed this and those in the process of writing and passing the 2A had sufficient knowledge of what was going on in pennsylvania to make this clear in the 2A, but they did not. WHy not? That is a question that may be unresolvable.
But certainly there were two groups at the time, one which saw the right to bear arms as being for personal defence and those which saw it only for the defence of the state.
Which did the 2A follow?
Well yes, which is just another reason to ask why the founders did not use the phrase "the people have a right to bear arms for the defence of themselves and the State".
WHy do you not agree with me about massachusetts? North Carolina may have been deemed inperfect, but then they obviously knew what they wanted, you would have thought.
Yes of course. And i know where you are going with this. Your claim that the right to keep arms inherently holds the right to self defence.
I disagree. I think that the changes that went on at the time lead to a divergence. That the right to self defence was protected by the 9A and 10A.
The first version of the amendment was separated by a semi colon, the RKBA and the religiously scrupulous part. The second was not. The third was, the fourth was not, then they took out the religiously scrupulous part.
What exactly are the similarities between the rights present in the English BoR and those that made it into the 2A? Almost nothing.
DId the founders share the view that the right to keep arms was a protection of the right to self defence from english common law, or were they more interested in protecting the right of people to keep arms so they could have an effcient militia?
As with the previous post where i have said that bearing of arms can mean many things but due to the context of the amendment it means only that individuals can be in the militia. I would also suggest that the context of the amendment also suggests that what is protected is only the right to keep arms, so that the militia can have a ready source of weapons.
The first part is simple, he did not want people able to exclude themselves. Obvious in the light of the 1792 militia act which could force people to be in the militia.
I would also say that the he uses the term "keeping arms" in the sense of having a recourse to a standing army, ie, with the weapons kept by individuals there is a ready source of arms for the militia.
You cannot depend on the militia, quite true, does it exist in the USA today? is a question many people ask, because the militia at present is almost non-existant. SO individuals with arms means that the militia exists in spirit but is not deemed necessary in the circumstances (and maybe i should add a "yet" to that).
The one thing i am not really able to get around is why preventing people bearing arms would lead to the violation of the keeping of arms. I can only assume that he would think that if the US govt could prevent people from being in the militia then there is no point in them having guns, so the feds could prevent this. Makes you wonder exactly what he did say.
What he wants to say is......
Cbrgator
My problem is this. If the govt can take away the arms of everyone, who is there to defend when it is really needed? If the govt has taken away the arms of everyone this is when it is needed.
The 2A is the last and ultimate check and balance on the govt, it is needed at the times of the worst possible govt, this being a time when they are most likely to take away the guns.
Impossible. If the feds change the market too much, then it is unconstitutional. There is a fine line somewhere, but basically individuals have to be able to gain arms at an affordable price, otherwise they are not able to keep them, and with just one type of weapon, the price will probably go up, because it is a monopoly.
Gungnir
Member
I read this as an oxymoron, Stalin's Russia had a well regulated people, so did Hitler's Germany, both could not be considered free states as we think about them.
RKBA has further implications, in other areas, for protection of enemies foreign AND domestic. Remember back in 1776 the British were DOMESTIC. So hypothetically since the National Guard (our perceived militia although in reality a legal recognized military army, the same as Army/Navy/AF) can be called up and ordered directly by the President (against a 50-0 vote from state Governors)
One final comment on "Well Regulated Militia" I agree that given the language of the time this was common parlance for working well (a well regulated watch, or steam engine, etc.). However further the 2A does not implicitly or explicitly give explanation are to who regulates the militia if you use modern parlance. The assumption that the militia is regulated by Federal or State government is just that, question is, is this assumption right, would Benjamin Franklin (my personal favorite), Thomas Jefferson, or George Washington agree with that? I suspect not, if they did the Revolutionary war would have been very short.
"We rebel"
"You're a militia, controlled by the government, we order you to return to your homes."
"Oh didn't think of that, lets go home, Damnit!"
legaleagle_45
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OMDP
Of course not. Most of our rights trace their lineage to the english common law and the English Bill of Rights but are much more expansive, rather than restrictive. For example, free speech in the English Bill of Rights only applied to speeches made in Parliament. I consider the English version to be more in the nature of the "grandfather" rather than the "parent" ... a direct lineal ancestor, but removed by one generation.
I do not disagree that that the right of resistance is protected by the 2nd. I assert that it is not the only thing protected by the 2nd.
Actually, during the time of Blackstone, it was. Restrictions on the exercise of that right is of more recent vintage. The UK has been moving towards a "proportionality" standard for self defense... this concept would have been absurd to Blackstone.
Because the keep right was already there.
Because of what I know about John Adams who wrote the Massachusetts declaration. He was one of the top lawyers in the colonies and even succesfully represented the British Troops involved in the Boston Massacre based upon the theory of self defense. He was certainly well versed in Blackstone and he was certainly well versed in the abuses associated with the English game laws and he was most assuredly familiar with the line of english case law exemplified by Rex v Gardner.
It was considered at the time an oversight. North Carolina was the first... it used "bear" only terminology. Every subsequent state which employed that model inserted an addition to include "for themselves" or similar language while maintaining "the "state" language. None of the states which employed the "keep and bear" model inserted such a modifier until Texas did so following the civil war... almost 100 years removed from the BoR's. So, what we have is that every one of the pure "bear" states (except NC) sought to protect self defense, while none of the "keep and bear" states thought self defense was important.... I find that conclusion to be untenable and thus it is strong evidence that "keep" means a bit more.
Impossible. Read the debates a bit more with a view towards the debates concerning "pay for a substitute". Those that were actually religiously scrupulous would not pay for a substitute either and for the same religious reasons... they certainly would not provide arms for the cause for the same religious reasons... So why would their right to "keep arms" be protected?
Are you familiar with the Test Acts?
Do you think he considered this a good thing or did he consider it a "violation" of the right to keep arms? If the latter, why would the 2nd protect that right if the arms protected would have no use in the militia? What possible use could they have which is protected by the keep right?
BTW, did you see how Scalia handeled the bear issue? His method is totally consistant with the religiously scrupulous clause, yet implicates self defense in the bear language... ingenious. I guess that is why he is on SCOTUS and not me LOL. I had certainly never thought of that before, but Ieyasu had and he agrees with Scalia's formulation.
Of course not. Most of our rights trace their lineage to the english common law and the English Bill of Rights but are much more expansive, rather than restrictive. For example, free speech in the English Bill of Rights only applied to speeches made in Parliament. I consider the English version to be more in the nature of the "grandfather" rather than the "parent" ... a direct lineal ancestor, but removed by one generation.
I do not disagree that that the right of resistance is protected by the 2nd. I assert that it is not the only thing protected by the 2nd.
Actually, during the time of Blackstone, it was. Restrictions on the exercise of that right is of more recent vintage. The UK has been moving towards a "proportionality" standard for self defense... this concept would have been absurd to Blackstone.
Because the keep right was already there.
Because of what I know about John Adams who wrote the Massachusetts declaration. He was one of the top lawyers in the colonies and even succesfully represented the British Troops involved in the Boston Massacre based upon the theory of self defense. He was certainly well versed in Blackstone and he was certainly well versed in the abuses associated with the English game laws and he was most assuredly familiar with the line of english case law exemplified by Rex v Gardner.
It was considered at the time an oversight. North Carolina was the first... it used "bear" only terminology. Every subsequent state which employed that model inserted an addition to include "for themselves" or similar language while maintaining "the "state" language. None of the states which employed the "keep and bear" model inserted such a modifier until Texas did so following the civil war... almost 100 years removed from the BoR's. So, what we have is that every one of the pure "bear" states (except NC) sought to protect self defense, while none of the "keep and bear" states thought self defense was important.... I find that conclusion to be untenable and thus it is strong evidence that "keep" means a bit more.
Impossible. Read the debates a bit more with a view towards the debates concerning "pay for a substitute". Those that were actually religiously scrupulous would not pay for a substitute either and for the same religious reasons... they certainly would not provide arms for the cause for the same religious reasons... So why would their right to "keep arms" be protected?
Are you familiar with the Test Acts?
Do you think he considered this a good thing or did he consider it a "violation" of the right to keep arms? If the latter, why would the 2nd protect that right if the arms protected would have no use in the militia? What possible use could they have which is protected by the keep right?
BTW, did you see how Scalia handeled the bear issue? His method is totally consistant with the religiously scrupulous clause, yet implicates self defense in the bear language... ingenious. I guess that is why he is on SCOTUS and not me LOL. I had certainly never thought of that before, but Ieyasu had and he agrees with Scalia's formulation.
legaleagle_45
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The collective right thesis of the 2nd Amendment first reared its ugly head in City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905). It was a theory enunciated sua sponte from the court as niether side in that case had briefed it... because no other case or legal treatise before had even thought it a viable legal doctorine.
Art Eatman
Moderator In Memoriam
cbrgator, I figure that there had to be a reason, a purpose for the BOR. To me, the Preamble, written by the folks who wrote the Constitution, explains why they put the BOR into it. That, therefore, takes me back to my argument I made in my earlier post.
Next is the idea that the writers had a good command of the language. Further, their own definitions of words were consistent. So, my question then is, how could "the people" be singular in one amendment and collective in another? The writers did not play hopscotch with the language.
Last, Jefferson is credited with doing much of the writing of the BOR. (And Adams?) If we look at other writings of Jefferson and Adams on the subject of firearms, we find that they believed that individuals should have the RKBA. How, then, could the 2A have any meaning other than that espoused by us and the NRA--or by Jefferson, himself?
Next is the idea that the writers had a good command of the language. Further, their own definitions of words were consistent. So, my question then is, how could "the people" be singular in one amendment and collective in another? The writers did not play hopscotch with the language.
Last, Jefferson is credited with doing much of the writing of the BOR. (And Adams?) If we look at other writings of Jefferson and Adams on the subject of firearms, we find that they believed that individuals should have the RKBA. How, then, could the 2A have any meaning other than that espoused by us and the NRA--or by Jefferson, himself?
gc70
Member
Madison actually drafted the initial proposal for the Bill of Rights. Madison's draft was certainly influenced by Jefferson, with whom he frequently corresponded. Jefferson was probably instrumental in swaying Madison from being an opponent of a Bill of Rights during Constitutional ratification to being its major proponent in Congress.
Legaleagle
Sure, and i agree. However i am not sure the 2A expands on everything that had anything to do with firearms under british common law.
As far as i can tell from history, rights were viewed in contrast to the god given rights and powers held by the king that kings like James I believed he had, this only came about from the time of Henry VIII for obvious reasons, and certainly this was not the view in Scotland. Now, there are only a few Kings down the line until we get to the ENglish BoR which was in essence saying that the monarchy had gone too far and they should not be allowed to do this. It was a mere power game. Now perhaps Blackstone was a bit the like the french philosophers and was trying to impliment this kind of thinking upon people, but i am not sure that in England it was thought of in this manner by all.
AH, but then we get onto the arguments of the federalist v. anti-federalists where one side believed they did not need a BoR because these rights existed and should not be trodden on, but the realisation that something did need to be written down.
All of the rights of the BoR already "existed", what they were doing was protecting these rights, so why did the founders not feel the need to specifically protect the right to defend oneself through the 2A?
I have two points to make. The first is, if Adams was so powerful and this was not his view, then how did "The people have a right to keep and to bear arms for the common defence." get into the massachusetts declaration of rights 1780? And the second is, perhaps this is because the way i am saying it is, they wanted a protection for the defence of the nation and so they had the RBA clause, but did not feel the need to protect something else, the right to self defence because either it was so self-evident or because of other reasons.
Except also massachusetts. Now, i would suggest that after 1791 states actually tried to copy the 2A or at least take from the principles of this.
I am not sure what point you are trying to make here. Why would someone's right to keep arms be protected when they are not willing to bear arms?
Mr Sherman spoke about this. "because there are men amongst the quakers who will turn out, notwithstanding the religious principles of this society, and defend the cause of their country."
The question here is WHO is going to be someone useful for keeping arms for the militia and who is not? Well you might have thought that someone who will not bears will also not give arms, but then you never know. Maybe someone would give up their arms to the militia, but for religious reasons not fight.
A little, you have told me about them before but i think i was unable to find enough information on them to be able to make an informed decision. I know you have a few quotes on them but i would like to be able to see the whole context, little snipets can be misleading.
I thought that was where you might be trying to go. As i have pointed out, the founders feared that the govt would blanket prevent people joining the militia for religious reasons, but also that they would force quakers to pay even though they were willing to fight.
A person who did not fight would still have guns that could be used, confiscated by the militia, for the militia was not bound by the 2A, only the feds were/are.
The right to keep arms, with the aim of providing arms for the militia, was not infringed upon criminals at the beginning. Why would the feds allow criminals to keep and bear arms, when now they will not?
Lastly, it is probably a matter of fairness that a right is given to all and for them to lose in the courts. A religious person who did not want to be in the militia, may not be doing his duty, but still had the right. Now a religious person who did not keep a gun, may not be doing their duty but still had the right. If the Federal govt came and took guns away from an individual because they would not join the militia, then they were infringing on the right before due process, regardless of whether the person would give up their gun to the militia or not.
The 2A protects the right to own a gun, regardless of militia status or willingness to give up arms to the militia. It is what it protects. It does not protect other things like carry and conceal that the person might actually do.
In modern life this is even more exaggerated. Who keeps a gun so the militia has weapons? Probably nobody. Who keeps a gun so they can carry and conceal? QUite a lot. Does this mean carry and conceal IS protected and keeping arms for the militia is not? No chance.
I always thought it a little strange that self defence came under keep. I do not agree with Scalia, he makes one big error in his reading of the 2A, and it seems to be a political one, that came through from the memorandum to the attorney general. Just because "Bear arms" can mean to carry a gun, does not mean that is what it means in the 2A. This is like saying that the word "Stool" always means an impliment to sit on, no matter what the context of the language is.
I guess that is why he is on SCOTUS, because he also knows how to play the political game.
Sure, and i agree. However i am not sure the 2A expands on everything that had anything to do with firearms under british common law.
As far as i can tell from history, rights were viewed in contrast to the god given rights and powers held by the king that kings like James I believed he had, this only came about from the time of Henry VIII for obvious reasons, and certainly this was not the view in Scotland. Now, there are only a few Kings down the line until we get to the ENglish BoR which was in essence saying that the monarchy had gone too far and they should not be allowed to do this. It was a mere power game. Now perhaps Blackstone was a bit the like the french philosophers and was trying to impliment this kind of thinking upon people, but i am not sure that in England it was thought of in this manner by all.
AH, but then we get onto the arguments of the federalist v. anti-federalists where one side believed they did not need a BoR because these rights existed and should not be trodden on, but the realisation that something did need to be written down.
All of the rights of the BoR already "existed", what they were doing was protecting these rights, so why did the founders not feel the need to specifically protect the right to defend oneself through the 2A?
I have two points to make. The first is, if Adams was so powerful and this was not his view, then how did "The people have a right to keep and to bear arms for the common defence." get into the massachusetts declaration of rights 1780? And the second is, perhaps this is because the way i am saying it is, they wanted a protection for the defence of the nation and so they had the RBA clause, but did not feel the need to protect something else, the right to self defence because either it was so self-evident or because of other reasons.
Except also massachusetts. Now, i would suggest that after 1791 states actually tried to copy the 2A or at least take from the principles of this.
I am not sure what point you are trying to make here. Why would someone's right to keep arms be protected when they are not willing to bear arms?
Mr Sherman spoke about this. "because there are men amongst the quakers who will turn out, notwithstanding the religious principles of this society, and defend the cause of their country."
The question here is WHO is going to be someone useful for keeping arms for the militia and who is not? Well you might have thought that someone who will not bears will also not give arms, but then you never know. Maybe someone would give up their arms to the militia, but for religious reasons not fight.
A little, you have told me about them before but i think i was unable to find enough information on them to be able to make an informed decision. I know you have a few quotes on them but i would like to be able to see the whole context, little snipets can be misleading.
I thought that was where you might be trying to go. As i have pointed out, the founders feared that the govt would blanket prevent people joining the militia for religious reasons, but also that they would force quakers to pay even though they were willing to fight.
A person who did not fight would still have guns that could be used, confiscated by the militia, for the militia was not bound by the 2A, only the feds were/are.
The right to keep arms, with the aim of providing arms for the militia, was not infringed upon criminals at the beginning. Why would the feds allow criminals to keep and bear arms, when now they will not?
Lastly, it is probably a matter of fairness that a right is given to all and for them to lose in the courts. A religious person who did not want to be in the militia, may not be doing his duty, but still had the right. Now a religious person who did not keep a gun, may not be doing their duty but still had the right. If the Federal govt came and took guns away from an individual because they would not join the militia, then they were infringing on the right before due process, regardless of whether the person would give up their gun to the militia or not.
The 2A protects the right to own a gun, regardless of militia status or willingness to give up arms to the militia. It is what it protects. It does not protect other things like carry and conceal that the person might actually do.
In modern life this is even more exaggerated. Who keeps a gun so the militia has weapons? Probably nobody. Who keeps a gun so they can carry and conceal? QUite a lot. Does this mean carry and conceal IS protected and keeping arms for the militia is not? No chance.
I always thought it a little strange that self defence came under keep. I do not agree with Scalia, he makes one big error in his reading of the 2A, and it seems to be a political one, that came through from the memorandum to the attorney general. Just because "Bear arms" can mean to carry a gun, does not mean that is what it means in the 2A. This is like saying that the word "Stool" always means an impliment to sit on, no matter what the context of the language is.
I guess that is why he is on SCOTUS, because he also knows how to play the political game.
legaleagle_45
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George Mason is given equal credit for drafting the BoR's. His master draft created prior to the Virginia ratifying convention was adopted almost verbatim by Virginia. The Virginia proposal was, in turn, nearly identical to the proposals advanced by Madison in the first Congress.
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