Individual right?
- Thread starter Parallax
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Stand_Watie
Member
I don't know that you do particularly have the rkba for hunting from the federal standpoint.
"Target practice" is part of "well regulated" so he's clearly wrong there. "Self defense" was an understood right by the framers of the second amendment - see the Declaration of Independence - ...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..., but that isn't explicitly stated either, although it is in most state constitutions, see list here
http://www.saf.org/Constitutions.html#With
"Target practice" is part of "well regulated" so he's clearly wrong there. "Self defense" was an understood right by the framers of the second amendment - see the Declaration of Independence - ...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..., but that isn't explicitly stated either, although it is in most state constitutions, see list here
http://www.saf.org/Constitutions.html#With
NIGHTWATCH
Member
Hunting, target practice, CCW, all natural extensions of our individual civil liberty.
Byron Quick
Moderator In Memoriam
He's right in a wrong headed way. No the Second is not about hunting. No the Second is not about self defense. The Second is about resistance to a tyrranical central government. However, English common law enshrines the right to self defense without regard to what the English have done to their own rights. The same goes for hunting. This guy is full of bull feces.
Ask him about the liberal constitutional law scholar Laurence Tribe's position on the Second Amendment
He won't want to discuss it. There are other top notch liberal constitutional law scholars who have stated that the Second Amendment means what it says...they've all received death threats from gun grabberss.
Ask him about the liberal constitutional law scholar Laurence Tribe's position on the Second Amendment
He won't want to discuss it. There are other top notch liberal constitutional law scholars who have stated that the Second Amendment means what it says...they've all received death threats from gun grabberss. NIGHTWATCH
Member
The Second Amendment is our militant provision to defend and enforce our (the people) constitution by way of force. Its not about hunting, CCW or target practice but all these activities follow a natural pattern of an armed society and historical traditions.
swampsniper
Member
"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once".
Judge Alex Kozinski
Judge Alex Kozinski
Stand_Watie
Member
That would be "the body of the people" as written by Madison (author of the 2nd) in the Virginia state constitution.
"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed"
The only thing your friend should have a disagreement with you on now, is if we can force him to keep a battle rifle and become proficient with it.
KriegHund
Member
This link may help...
Well regulated militia and right of the people are clearly seperate and clearly defined in the 2nd amendment. So states the supreme court, so states the constitution.
"a lot of folks who don't know much about constitutional law."
I wouldnt be talking so fast pal.
http://www.usdoj.gov/olc/secondamendment2.htm
Read that.
"xts entities other than individuals are said to have "rights," (37) the Constitution itself does not use the word "right" in this manner. Setting aside the Second Amendment, not once does the Constitution confer a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a "right of the people" discussed below, the Constitution in the Sixth Amendment secures "right" to an accused person, and in the Seventh secures a person's "right" to a jury trial in civil cases. (38) By contrast, governments, whether state or federal, have in the Constitution only "powers" or "authority." (39) It would be a marked anomaly if "right" in the Second Amendment departed from such uniform usage throughout the Constitution.
In any event, any possible doubt vanishes when "right" is conjoined with "the people," as it is in the Second Amendment. Such a right belongs to individuals: The "people" are not a "State," nor are they identical with the "Militia." Indeed, the Second Amendment distinctly uses all three of these terms, yet it secures a "right" only to the "people." The phrase "the right of the people" appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The First Amendment secures "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," and the Fourth safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, the Ninth Amendment refers to "rights . . . retained by the people." We see no reason to read the phrase in the Second Amendment to mean something other than what it plainly means in these neighboring and contemporaneous amendments. "
Well regulated militia and right of the people are clearly seperate and clearly defined in the 2nd amendment. So states the supreme court, so states the constitution.
"a lot of folks who don't know much about constitutional law."
I wouldnt be talking so fast pal.
http://www.usdoj.gov/olc/secondamendment2.htm
Read that.
"xts entities other than individuals are said to have "rights," (37) the Constitution itself does not use the word "right" in this manner. Setting aside the Second Amendment, not once does the Constitution confer a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a "right of the people" discussed below, the Constitution in the Sixth Amendment secures "right
In any event, any possible doubt vanishes when "right" is conjoined with "the people," as it is in the Second Amendment. Such a right belongs to individuals: The "people" are not a "State," nor are they identical with the "Militia." Indeed, the Second Amendment distinctly uses all three of these terms, yet it secures a "right" only to the "people." The phrase "the right of the people" appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The First Amendment secures "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," and the Fourth safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, the Ninth Amendment refers to "rights . . . retained by the people." We see no reason to read the phrase in the Second Amendment to mean something other than what it plainly means in these neighboring and contemporaneous amendments. "
Bartholomew Roberts
Member
Everything you need to handle these types of arguments is located here:
http://www.guncite.com/
Guncite has a lot of excellent research on the Second Amendment and its intent and hosts the remains of the now-defunct Second Amendment Law Library as well.
http://www.guncite.com/
Guncite has a lot of excellent research on the Second Amendment and its intent and hosts the remains of the now-defunct Second Amendment Law Library as well.
El Tejon
Member
The Supreme Court has held that "the people" is a term of art that means individuals. Why would they mean individuals in all of the BoR except the 2nd?
Art Eatman
Moderator In Memoriam
The 1992 Urriquez-Verdugo v. US saw SCOTUS declare in part that "the people" means individuals as well as groups.
The Preamble to the BOR clearly states the purpose of that package of enumerated rights is to restrain the central government, the State, from abuse of power. The rather obvious question, then, is how can something intended to restrain the government be also a restraint upon the citizenry? The Amendments cannot also restrain you and me when they're intended to restrain the government.
Art
The Preamble to the BOR clearly states the purpose of that package of enumerated rights is to restrain the central government, the State, from abuse of power. The rather obvious question, then, is how can something intended to restrain the government be also a restraint upon the citizenry? The Amendments cannot also restrain you and me when they're intended to restrain the government.
Art
There is a book called Supreme Court Gun Cases by Halbrook, Kopel, and Korwin. There are a fair number of cases that speak to an individual right. Additionally, the majority of scholarly work on this subject favors the individual right to the so-called collective right.
B
boofus
Guest
The definition of a "well regulated militia"
US Code Title 10 Section 311
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.
As I have said before the 2A does NOT say the right of the militia to keep and bear arms, it says the right of the PEOPLE, the same PEOPLE that have individual rights to free speech, religion, and privacy.
The inherent purpose of the militia is protection. So that argument does not hold either. Hunting is just a good side effect.
US Code Title 10 Section 311
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.
As I have said before the 2A does NOT say the right of the militia to keep and bear arms, it says the right of the PEOPLE, the same PEOPLE that have individual rights to free speech, religion, and privacy.
The inherent purpose of the militia is protection. So that argument does not hold either. Hunting is just a good side effect.
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.
'Well regulated' means 'well equipped'. The people (individual free citizens like you and me) form the militia. The prerequisite for the security of a free state is a well equipped militia. The prerequisite for a well equipped militia is the individual right to keep and bear arms.
It's a simple concept to understand, although others have explained it better.
The 2nd, as well as the all of the BOR, places limits on government, not on individuals. Compare the interpretation of the 2nd to the interpretation of the 1st in modern times. It's a double standard. (Although McCain-Feingold attempts to place government imposed limits on the 1st, also).
It requires tortorous legal 'logic' to conclude that a government sponsored and sanctioned program is a prerequisite to the individual RKBA.
'Well regulated' means 'well equipped'. The people (individual free citizens like you and me) form the militia. The prerequisite for the security of a free state is a well equipped militia. The prerequisite for a well equipped militia is the individual right to keep and bear arms.
It's a simple concept to understand, although others have explained it better.
The 2nd, as well as the all of the BOR, places limits on government, not on individuals. Compare the interpretation of the 2nd to the interpretation of the 1st in modern times. It's a double standard. (Although McCain-Feingold attempts to place government imposed limits on the 1st, also).
It requires tortorous legal 'logic' to conclude that a government sponsored and sanctioned program is a prerequisite to the individual RKBA.
Aguila Blanca
Member
The entire focus the the recent DOJ memorandum was precisely this question. It is not a Supreme Court ruling, but it may be the most thoroughly researched and completely documented scholarly analysis of the question yet undertaken. Someone else posted the link above. If you haven't read it, you should do so. The conclusion is that the RKBA is unquestionably an individual right.
One cannot trust the SCOTUS these days, unfortunately, but I would think if the right case came along and the appellant walked in and plunked a copy of this memorandum on the bench, even the Supremes would have a difficult time wriggling around to deny that its an individual right.
One cannot trust the SCOTUS these days, unfortunately, but I would think if the right case came along and the appellant walked in and plunked a copy of this memorandum on the bench, even the Supremes would have a difficult time wriggling around to deny that its an individual right.
cuchulainn
Member
Translation -- "I don't want to think. I just want to repeat this litany as truth much like the pro-Slavery folk used Dred Scott as their mindless litany." You need to jar him away from his litany and get him to think about what the court really ruled (and possibly whether the court was wrong-headed as in Dred Scott)
He's right to a point. The Supreme court has never actually ruled directly that RKBA is an individual right (although reading 19th century gun-rulings, like Cruickshank, show the Court thought of it thus).
But a lack of a ruling does not prove the opposite -- that the right is collective/militia-only. The SC has not ruled on the individual-vs-collective question. The only place it came close was in U.S. v Miller in the 1930s. However, in Miller, the court dealt with the question of whether a sawed-off shotgun was a militia weapon, not whether Miller was in a militia. It decided the gun wasn't. But that begs two questions:
1) If a different type of gun had been at issue, would the court have declared Miller's right protected?
2) If the court thought the right to be militia-only, why didn't it simply point out that Miller was not in a militia -- why did it go the more-convoluted route of discerning whether gun was usable by militia?
The court's failure to used Miller's lack of militia membership is the most cutting argument against the militia-only argument, IMO.
In any event, Clayton Cramer's book Firing Back gives a good quickie review of court rulings. For more indepth coverage, find Stephen Halbrook's The Second Amendment: That Every Man Be Armed
(((Of course I disagree that "non-militia weapons" should be unprotected, but that's another debate. As well, it was absurd for the Court to declare sawed-off shotguns to be non-militia weapons in the 1930s. Current military tactics then still involved trenches, and in WWI soldiers commonly used sawed-off shotguns in the trenches -- but that's an different argument, and I'd avoid making it so as to avoid a confused discussion. But this isn't the only case of such absurdity. IIRC, in Morton Grove, the court declare handguns to be non-military weapons in the face of the fact that most officers and many other military personnel carry sidearms, a.k.a handguns. But again, bringing that up would just confuse the discussion.)))
Thre might be an individual right but it is largely irrelevant. The 2A does not apply to states, unlike other provisions of the BOR. Some states have constitutions that protect those rights but the clear idea is that states can regulate gun ownership. There were two memoranda, one by the AG of TN and one by the AG of VA that dealt with this question and they both came to that conclusion.
Rev. DeadCorpse
Member
Bravo Sierra Rabbi.
Art 4. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Art 6. Paragraph 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Preamble BoR. The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.
Amd 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amd 10. 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.
Amd 14. Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Even a current report for the DoJ (http://www.usdoj.gov/olc/secondamendment2.htm) gives even more evidence for an INDIVIDUAL Right that no one may infringe upon at ANY level of government. That all levels of government actually DO infringe on our civil and individual Rights is irrelevent.
A Right is something you do not have to ask permission to do. The Founders understood that people have Rights that no rightful and just government should EVER restrict at ANY level. Hence the wording of the Constitution. The quotations from the Founders bear this viewpoint out. Selective incorperation and State "rights" are lies.
Art 4. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Art 6. Paragraph 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Preamble BoR. The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.
Amd 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amd 10. 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.
Amd 14. Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Even a current report for the DoJ (http://www.usdoj.gov/olc/secondamendment2.htm) gives even more evidence for an INDIVIDUAL Right that no one may infringe upon at ANY level of government. That all levels of government actually DO infringe on our civil and individual Rights is irrelevent.
A Right is something you do not have to ask permission to do. The Founders understood that people have Rights that no rightful and just government should EVER restrict at ANY level. Hence the wording of the Constitution. The quotations from the Founders bear this viewpoint out. Selective incorperation and State "rights" are lies.
ctdonath
Member
The guy starts a proper line of reasoning but does not follow thru on it - likely scared of where it goes.
The existence of a national militia depends wholly upon the ability of a great number of individuals to, on very short notice, show up for combat suitably armed and suitably trained. You CANNOT separate the militia as a group from the militia as a collection of individuals; there is no collective right without an individual right, as the collective is composed of individuals.
The Constitution makes it clear that the militia may be "called up" by the federal gov't. As this may happen on very short notice, one cannot assume there will be time to equip and train them. Indeed, the Founding Fathers wrote the Militia Act of 1792 precisely to ensure that citizens were suitably armed and trained - at their own expense. Hence, the 2nd Amendment was written to guarantee the right of individuals to arm themselves in preparation for such a call.
Defending the state also includes the individual level. If one can act NOW to stop lethal harm, others are protected as well. The assault of a single citizen is damaging to the state, and the assailant will likely assault others unless stopped. Self-defense is calling a single militia member to defend his own part of the collective state.
When the need for weapons arise, there is no time to aquire and practice with them. Target practice, and the associated study and acquisition of guns, is vital toward being ready to fulfill a militia role. Allowing individuals to pursue aquisition and training on their own saves the state enormous costs.
Hunting, aside from being an ancient manner of obtaining food, is high practice for militia work: powerful weapons and effective concealment against an alert and unwilling adversary amounts to effective real-world militia training - with food as a payoff for successful work. Do not underestimate the fact that deer season amounts to an army of 18 million snipers, fully equipped with powerful long-range rifles and cammo and transportation and ... outnumber the world's four largest militaries combined.
Those who harp on the "collective militia" interpretations of the 2nd Amendment need realize that to fully support their view they inevitably justify individual firearms ownership (machineguns included), target practice, and hunting. Pathetic that they sweep all arguments toward "collective militia" and then destroy that which forms one.
The existence of a national militia depends wholly upon the ability of a great number of individuals to, on very short notice, show up for combat suitably armed and suitably trained. You CANNOT separate the militia as a group from the militia as a collection of individuals; there is no collective right without an individual right, as the collective is composed of individuals.
The Constitution makes it clear that the militia may be "called up" by the federal gov't. As this may happen on very short notice, one cannot assume there will be time to equip and train them. Indeed, the Founding Fathers wrote the Militia Act of 1792 precisely to ensure that citizens were suitably armed and trained - at their own expense. Hence, the 2nd Amendment was written to guarantee the right of individuals to arm themselves in preparation for such a call.
Defending the state also includes the individual level. If one can act NOW to stop lethal harm, others are protected as well. The assault of a single citizen is damaging to the state, and the assailant will likely assault others unless stopped. Self-defense is calling a single militia member to defend his own part of the collective state.
When the need for weapons arise, there is no time to aquire and practice with them. Target practice, and the associated study and acquisition of guns, is vital toward being ready to fulfill a militia role. Allowing individuals to pursue aquisition and training on their own saves the state enormous costs.
Hunting, aside from being an ancient manner of obtaining food, is high practice for militia work: powerful weapons and effective concealment against an alert and unwilling adversary amounts to effective real-world militia training - with food as a payoff for successful work. Do not underestimate the fact that deer season amounts to an army of 18 million snipers, fully equipped with powerful long-range rifles and cammo and transportation and ... outnumber the world's four largest militaries combined.
Those who harp on the "collective militia" interpretations of the 2nd Amendment need realize that to fully support their view they inevitably justify individual firearms ownership (machineguns included), target practice, and hunting. Pathetic that they sweep all arguments toward "collective militia" and then destroy that which forms one.
By that logic Rabbi, states should be able to infringe/regulate/abolish anything and everything included in the BOR, without consequence. Why don't they?
Because there is a double standard, and regulation of firearms is fair game in the name of safety.
You seem to be condoning/supporting the individual states practice of regulating firearms. What is your logic for that position?
Because there is a double standard, and regulation of firearms is fair game in the name of safety.
You seem to be condoning/supporting the individual states practice of regulating firearms. What is your logic for that position?
Walt Sherrill
Member
Last year, I think, the U.S. Attorney General stated that the right to Keep and Bear Arms was personal right, and affirmed the DOJ's position on that matter. That's not LAW, but it is comforting.
Most Constitutional scholars say that the entire Constitution is a document designed to directly define and LIMIT the powers of the federal government. The US Constitutonal is NOT a document that limits the rights of individuals. Those who created and shaped the document weren't concerned about limiting individual rights -- they were concerned about a too-powerful central government trampling on individual rights and powers.
The amendments known as the Bill of Rights expressly define the powers WITHHELD from the federal government -- and all of these RIGHTS (or powers), it seems to me, are purely individual rights or powers. (To argue otherwise, for example, would imply that you only have a right to religious freedom if you're a member of an organized congregation, mosque, or temple, and that any of the several states could outlaw your religious practice. Do you believe THAT to be true?)
The Tenth Amendment says, 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. We know that states can regulate gun ownership and possession, and its been that way from the first.
Saying that any RIGHT is a "collective" right, as some argue, is a concept totally foreign to the Constitution. Compare how the terms RIGHT or RIGHTS are used elsewhere in the Constitution, and show me where they are used to address a collective, rather than personal/individual, power.
Too Many Choices!?
Member
- Joined
- Feb 21, 2005
- Messages
- 763
Since when is the BOR conditional!!??
!Some people don't seem to understand that if the Government can tell you not to do something, it is not a ,"Right", it is a privelage:banghead:!!
!Some people don't seem to understand that if the Government can tell you not to do something, it is not a ,"Right", it is a privelage:banghead:!!States did for much of the history of this country. The Supreme Court started making provisions of the BOR applicable to the states via the 14th amendment starting in the early to mid part of the 20th century. So far, they have not done so with the 2nd amendment.
Most of the states have provisions similar to the 2nd amendment in their constitutions. Michigan's is the following:
"Every person has a right to keep and bear arms for the defense of himself and the state."
Rev. DeadCorpse
Member
Wrong answer Steve. Under the Articles of Confederation, this may have been true. Not under our US Constitution though. The 14th only redefined who was a citizen as slaves were being denied their basic, civil, and human Rights.
These days, the Wickard decision and the Commerce Clause part of the New Deal is what has been used to screw us out of our Rights. States are allowed to follow suit since the FedGov telling them no would mean they would have to scrap the New Deal policies.
A Right is a Right and exists independant of the State (Federal or local). That is, if you even want to come close to pretending to be a Free Individual with unalienable Rights.
If not, then welcome to Amerika. It's a brave new world.
These days, the Wickard decision and the Commerce Clause part of the New Deal is what has been used to screw us out of our Rights. States are allowed to follow suit since the FedGov telling them no would mean they would have to scrap the New Deal policies.
A Right is a Right and exists independant of the State (Federal or local). That is, if you even want to come close to pretending to be a Free Individual with unalienable Rights.
If not, then welcome to Amerika. It's a brave new world.
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