Individual Rights vs. Public Order Rights + 2nd amdendment...

[SilentStalker]

Does anyone know at what point the public order rights seemed to make the jump to trump individual rights? I mean, to me, the Bill of Rights seems very clear as to what it means. In my mind, individual rights should always trump public order rights unless you have done something crazy to lose that privilege. And, it seems to me that the way the Bill of Rights and the Constitution was written that our Founding Fathers intended all Individual Rights to remain supreme over public order rights. So, would it be crazy to make the argument that no matter what laws were implemented that seemed to skirt the Bill of Rights should be null and void? Is the Bill of Rights and the Constitution not supposed to be the very basis on which our government is run? I mean it seems to me like one could and someone should make that argument, yet nobody does. I just find it odd that something like that has not come up. I mean I am no law student or anything by any means but someone please help me out here. How does one determine that public order should reign supreme over an individual right?

I am bringing all of this up specifically to deal with the 2nd amendment. I mean sure they could all be amended into oblivion but the problem with amending the basis of law over and over is that it eventually becomes so diluted that it is nothing like it was intended to be. And if you do that then whats the point of having said right in the first place? Do you see what I mean here? If you have no foundation then there is nothing to build off of and well you might as well do away with the it altogether if one can just change it to whatever they want. I understand that there is a need for this to a point but who decides this? I mean you could argue that the Supreme Court should be the ultimate rule of the law but who made them supreme ruler? I mean what if they vote on something completely against the will of the people? Does that mean we should all just stand and take it? I am glad we have a checks and balances system but it seems to me that with enough key players in certain areas one could completely obliterate the point of the checks and balances system. How do you put an end to that? Once that select group gets their teeth in place it would be very hard to get them out and thats not good because they can pretty much run with whatever they want at that point. I do not know the answer to this as I know of no better form of government better than our own, but its pretty obvious that it has its flaws also.

I guess my point in all of this is that I am looking for answers. Hypothetically speaking if a ruling was made to where the 2nd amendment was done away with completely then what legal basis would we have to be able to fight that ruling? If we do not have some laws that remain supreme and untouched then it is completely probable that the basis of our government will one day be eroded away. The Bill of Rights may cease to exist one day. It already seems like we are headed that direction. So, how do we cut it off at the pass and save what we have left?

 

[3 MEN AND A BOAT]

Don't know the answer but its at the heart of why some including myself decided to double, triple, or even quadruple our ammo stock. It's also why I'm thinking of buying my first AR, previously never wanted one but theirs just something about someone telling me they don't think I need it.

 

[tomrkba]

The whole point of having the Second Amendment is to protect the INDIVIDUAL right to keep and bear arms. Unfortunately, they are using the Commerce Clause under a corrupt decision to get around the Second Amendment. The first line of the Gun Control Act of 1968 reads:

"An Act to amend title 18, United States Code, to provide for better control of the interstate traffic in firearms."

There is supposed to be no balance between public "need" and individual rights; the weight is entirely with individual rights. The police have their tools and methods within the boundaries of the state and Federal constitutions. The government has ruled for its own power and has set up a very corrupt system since the Civil War (though the seeds were planted with SCOTUS declaring it can determine what the Constitution means). In doing so it has introduced the notion, into law, that there is a tension between state power and rights.

The fact of the matter is that these laws should be no law at all. Rights are supposed to be very hard limits on government power and corruption has weakened those lines to the point where we have only privileges. We should be running these politicians out of town, but we refuse to do so.


* http://www.keepandbeararms.com/laws/gca68.htm

Don't know the answer but its at the heart of why some including myself decided to double, triple, or even quadruple our ammo stock. It's also why I'm thinking of buying my first AR, previously never wanted one but theirs just something about someone telling me they don't think I need it.

If you do not want an AR-15, buy something else! Buy an M1A, FN SCAR or similar. You don't have to have one; just have something they don't like!

 

[Midwest]

I know that New Jersey has used the excuse "Health Safety and Welfare" in order to draft up draconian legislation or to outright ban things. I guess "Health Safety and Welfare" fall under the guise of 'Public Order Rights'.

Google > "Health Safety and Welfare" gun control in NJ < And you will see a lot of references to it. It is a catchall phrase to restrict, control or to limit.

They used the term to ban fireworks decades ago and still refer to it this day.

http://www.usatoday.com/story/news/nation/2013/07/03/fourth-of-july-illegal-fireworks/2487795/

"According to New Jersey's Explosives and Fireworks Act, fireworks of any kind are against the public health, safety and welfare of the people of the state."

 

[3 MEN AND A BOAT]

Tomrkba - your right, maybe I worded it wrong in my previous post, but after my initial knee jerk reaction to someone telling me i didnt need one, I began looking at them in stores and found myself wanting one. I never considered one before but after looking at them, and handling a couple at the LGS, I want one. Currently just researching which one, thus far I'm leaning towards a colt.

 

[tomrkba]

Tomrkba - your right, maybe I worded it wrong in my previous post, but after my initial knee jerk reaction to someone telling me i didnt need one, I began looking at them in stores and found myself wanting one. I never considered one before but after looking at them, and handling a couple at the LGS, I want one. Currently just researching which one, thus far I'm leaning towards a colt.

If you're going to buy a handgun and/or rifle, please attend NRA Home Firearms Safety FIRST. You must be able to handle a firearm properly and you do not need to own one to attend.

Second, decide if you want a handgun, shotgun or rifle. They have different purposes and all can be used for defense or recreation. Regardless of which you choose, attend a basic class to familiarize yourself with it. Do not just go out and buy one. The reason is you don't know what features you need and desire for the purpose you designate for the gun. Many people want a gun that can be used both for personal defense and some sort of competition. Many "service" guns can be used in both roles. You mentioned getting an AR-15. They are great guns. I recommend you get one chambered in 5.56x45mm, NOT .223 Remington. You can shoot both 5.56x45mm and 223 Remington in a 5.56x45mm chamber. There are many brands out there, but I do recommend you buy a high quality rifle. Get a Colt, Bravo Company, Daniel Defense, LMT or LWRC rifle. I'm sure there are other brands that are good, but I know these well. My preference is for Colt and Bravo Company.

One key element is to buy quality magazines. I use Magpul PMags exclusively and I have had no trouble. I used to use generic aluminum "milspec" magazines, but had trouble with them. I smashed them all flat and went to PMags.

Take a look at attending an Appleseed event. They will teach you the fundamentals of rifle shooting for a very reasonable price.

 

[3 MEN AND A BOAT]

This wouldn't be my first gun just my first center fire rifle, Ive previously only had .22s and shotguns

Thank you for the help. It's one of the reasons I've been lurking this site, a lot of good info.

I'm thinking of it taking over as my HD gun, currently I keep a Rem .22 speed master and 870 12ga bedside in a lockable cabinet

 

[tomrkba]

Have you considered an AR in 7.62x51mm?

 

[goon]

The Second Amendment, and all other amendments in the Bill of Rights, were crafted to appease the Anti-Federalists and get them on board for supporting ratification of the Consitution. At the time, the Anti-Federalists felt that the Constitution gave the Federal government far too much centralized power. They feared this and opposed ratification. They only agreed to support ratification because the Federalists agreed to create the Bill of Rights.

The Bill of Rights only enumerates pre-existing rights. It does not define or create anything. You do not have only those rights enumerated in the B.O.R. You, me, and every other American citizen has every imaginable right EXCEPT those specifically placed under the authority of the federal or state governments. The problem is that we look at as "I have these rights because they are onl the list." Instead, we should look at it as "government has only these powers. All other rights and powers belong to us because they are not granted to government."

I cannot take credit for this idea. My eyes were opened to this concept by a liberal history professor as an undergrad in an American Revolution history class. She didn't spell it out - she let me come to this conclusion on my own, but agreed when I visited her office to ask her opinion on the subject. That conversation was one of the most valuable I've ever had in my life and led to a real change in how I view the role of government.
She also noted that were it not for the BOR, we'd have lost what few recognized rights we still have long ago. Sadly, I think she was right on that one too.

Lessons:
1. Education is good. Get you some.
2. Liberals are not always the bad guy.
3. Guard your rights or you will lose them.

 

[SilentStalker]

Wow! Get an education. What a novel idea! I have spent a lot of time in an educational facility called college, probably too much time. However, to say one is not educated because they do not know specifics about what I asked in no way means that someone is uneducated. Nobody knows everything about everything. If we all knew that then we wouldn't be here.

Anyways I understand what you are saying about us having basic human rights as an individual and I believe they should stand higher than any law a governing body decides to grant. That is just my personal opinion. I also do not think you can have a free society if a governing body does not recognize these basic rights. It depends on your definition of free I guess. That's kind of my point here. Even though we are one of the freest nations on earth we aren't really all that free. And your response to my question doesn't really provide a basis of an answer either but that is just me. By your very definition our governing bodies have already broken the basic individual rights that i believe all law should take into account to build upon. So knowing they have broken those sacred rights for the good of public order then what do you do about it? And by knowing that how does one call this a free society? It should be like you states but it seems to me that in today's time everything is twisted and you only have rights that your governing body recognizes as rights. So, therefore they seem to be the ones that grant the rights. Sure you could exercise free will however you want but if you do so against what is taken as law then you go to jail or have some other punishment. So, again it seems that today individual rights only exist in a way the governing body recognizes. End of story. You can try doing/arguing whatever you want but at the expense of what freedom you have if you can call it that.

And yes, anyone that knows the true definition of liberal would know that they are not inherently always bad, at least true liberals anyways.

 

[AlexanderA]

tomrkba wrote:

The whole point of having the Second Amendment is to protect the INDIVIDUAL right to keep and bear arms.

From a historical perspective, I kinda disagree. At the time of the Founding, the individual right to weapons (and their use in self-defense) wasn't in dispute. Heck, even the British didn't go around seizing guns from the individual colonists. (The purpose of their raid on Concord was to seize cannons and powder supplies belonging to the organized militia.) The Second Amendment was originally put into the Constitution to protect the right of states and localities to form militias without federal interference. OTOH, it has to be noted that membership in the militia was supposed to be universal at that time (with notable exceptions, such as slaves, women, etc.).

Whatever the Second Amendment means today is the result of 200+ years of history. The ironic thing is that Justice Scalia, supposedly an advocate of "original intent," chose to basically ignore the militia clause in his interpretation of the Second Amendment in the Heller case. I've always felt that our gun rights would be stronger if the militia clause was given due weight, with the understanding that membership in the militia -- the "unorganized" militia -- was universal. Under that interpretation, ownership of any militarily significant weapons could not be denied to individuals. (I guess Scalia wasn't prepared to go that far, and thus he used all sorts of twisted logic to get the result that he wanted.)

 

[beatledog7]

Heck, even the British didn't go around seizing guns from the individual colonists. (The purpose of their raid on Concord was to seize cannons and powder supplies belonging to the organized militia.)

Governments seeking to maintain or add to their power have to balance the intensity and magnitude of a threat to their power against the resources available to counter that threat. If a rifle in the hands of the private citizen was not seen as a significant threat to the power of the crown, it would be ignored. The British didn't seize privately-owned guns simply because doing so was seen as more trouble than it was worth.

The British were, of course, wrong. And the lesson has been learned.

The Founders knew that the British decision not to confiscate privately owned firearms--those used purely for taking game or for personal defense and those in the hands of state militia members undifferentiated--was a major factor in their victory. That understanding surely drove the wording of 2A.

The current push to more tightly control privately owned firearms is not about firearms--it's about controlling threats to government power. By and large, anti-gun forces don't really see lawfully-held, privately-owned guns as a major factor in street crime, murder rates, or mass shootings. That's just marketing. They may at times feel that way, but mostly they just seek ever-inceasing government power, and they know that privately held firearms are a threat to government power becoming absolute.

Government leaders who would like to see privately held firearms go away have to think about maintaining their power. They have to weigh their perception of our guns as a threat to that power against the loss of power they'd suffer due to not being reelected--the political fallout of taking them away.

So far, the political threat, at least at the national level, is stronger. Otherwise, we'd all be disarmed.

 

[pendennis]

My favorite poli-sci professor summed it up this way: "A group right is oxymoronic on its face."

 

[goon]

It should be like you states but it seems to me that in today's time everything is twisted and you only have rights that your governing body recognizes as rights.

Sadly, it is exactly as you claim. And it took until my third year as an undergraduate for me, a veteran and lifelong gun owner, to realize that I was had been thinking about this entirely the wrong way since I was first introduced to the Constitution in high school (by a howling small-government, pro-gun history teacher I might add).

You may already be familiar with the Federalist letters, but one I've found very insightful was Hamilton's Federalist No. 84. To quote Hamilton:

"Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations."

As you say, somehow through the generations, people have gotten the idea that the only rights they have are those enumerated in the Bill of Rights. But based on the above statement, the People have all imaginable rights not specifically put under the authority of government by mutual agreement (ratification of the Constitution). The People "surrender nothing" and "retain every thing."

Having said that, thank God the proponents of the Bill of Rights prevailed. Without it we'd have lost more than we already have, and I don't mean just the RKBA.

How do you fix this?
You have to change peoples' perception of what their rights are.
How do you do that?
Figure that one out, and I'll contribute $20 to your presidential campaign.

FWIW though, you're not the first guy to realize that he didn't live in a "free" country. For example, if you were black in this country, from 1865 until the Civil Rights Movement, you lived in a "free" country where you were supposedly free, but you weren't. So while it annoys me too and I get where you're coming from, I tend to not get too stressed about it anymore other than when I'm voting.
Also, remember that as far as RKBA issues go, we're really not doing too bad right now. Even IL has CCW now because the courts found that by not having a provision for CCW, the state was violating the Second Amendment. The argument is no longer about whether or not there is an individual right, but about how broad that right is. Compared to the argument we were having 15 years ago, that is progress.

http://www.constitution.org/fed/federa84.htm

 

[X-Rap]

One only has to look at todays news to understand how our gov looks at personal liberty. How can we expect them to honor the intent of the 2nd if they look so poorly at the others?
The 1st, 2nd, 4th, 5th, oh heck all of the originals aside from the 3rd are under attack and that one will be adjusted to serve what ever purpose they wish.
We are at great risk of losing what Americans have cherished and died for over all of the people on earth and that is INDIVIDUAL rights.

 

[SilentStalker]

Goon, nicely said! And trust me, if I had the funds and the first clue on how to run for office then I would already be there brother. I think the common man is exactly what we need in office. That's just another way they seize control. It's supposed to be where the common man can run for office but it does not seem to be that way to do. Maybe one of these days I can figure it out and run since I am in my early 30's haha. I still have some time to figure that out. Or, at least I hope I do.

 

[Fremmer]

I don't think that a constitutional "public right to order" exists. Maybe I'm wrong, but I can't recall an Amendment or caselaw providing such a right to the general public.

 

[Jack frost 3006]

the constitution is just four piece of paper , it mean's nothing unless your wiling to enforce it.

 

[boom boom]

Quick thoughts about the issue

As someone who has spent some time studying and teaching about the Framers and their views on the Constitution, I think that is fair to say that most considered their political views as calling for ordered liberty, What does that mean, it means that STATES had the right to regulate people under police powers--it means a state can pass laws that address the health, safety, and welfare of individuals in that state. Thus, even Jefferson believed that states could pass laws regarding seditious libel or establishment of religion. However, the Federal government could not as it was a government that would be limited to its enumerated powers. The Bill of Rights was then adopted to limit the National Government and did not apply to the states until the Civil War Amendments of the 13-15th Amendment were ratified. At that point, the U.S. Supreme Court eviscerated these rights including the Slaughterhouse case and Cruikshank. It took until the 1920's before the Supreme Court enforced 1st Amendment protections upon state actions. Since then, the Supreme Court has selectively picked and chosen which Amendments apply to the state.

BTW, the predominant conclusions of recent historians of the 2nd does not support the idea that organized militia were the focus of this amendment. Much of this is to blamed on the Miller and Cruikshank decisions. For example, see the English Bill of Rights in 1689 which provided that "no royal interference in the freedom of the people to have arms for their own defence as suitable to their class and as allowed by law (simultaneously restoring rights previously taken from Protestants by James II)" (from the Wikpedia article on the English Bill of Rights 1689). The Framers' focus was broader than that of specifically the British Army's actions in Concord.

In another example, scholar David Kopel notes that "Lord Dartmouth, the Royal Secretary of State for America, sent Gage a letter on October 17, 1774, urging him to disarm New England. Gage replied that he would like to do so, but it was impossible without the use of force. After Gage’s letter was made public by a reading in the British House of Commons, it was publicized in America as proof of Britain’s malign intentions.

Two days after Lord Dartmouth dispatched his disarmament recommendation, King George III and his ministers blocked importation of arms and ammunition to America. Read literally, the order merely required a permit to export arms or ammunition from Great Britain to America. In practice, no permits were granted. Note that this ban on importation affected individuals and organized militias alike. Kopel also continues, "[o]n April 23, 1775, Gage offered the Bostonians the opportunity to leave town if they surrendered their arms. The Boston Selectmen voted to accept the offer, and within days, 2,674 guns were deposited, one gun for every two adult male Bostonians." When that did not quell the rebellion, "On June 19, Gage renewed his demand that the Bostonians surrender their arms, and he declared that anyone found in possession of arms would be deemed guilty of treason." (See Kopel http://www.davekopel.org/2A/LawRev/american-revolution-against-british-gun-control.html). You will find similar documentary support in Mercy Warren's History of the Revolution etc. Make no mistake, the British viewed any American with a firearm who was not specifically a Loyalist as a threat. However, they never had the kind of ability to enforce gun control as a practical matter.

As someone has noted above, the overriding fear of the Framers was central government tyranny--thus the Bill of Rights was intended to protect those rights from the national government. The Tenth and Eleventh amendments try to preserve state power where the national government has no enumerated power. State governments were to be limited in their actions by their own constitutions with state bill of rights and their provisions. After the Civil War, the focus became state government tyranny which was blamed in part in causing the Civil War. Thus, the 13th-15th, applied limits to the state governments and was intended to overturn the cases of Dred Scott and Barron v. Baltimore. It took roughly 60 years for the Supreme Court to get around to applying the Bill of Rights to the states (leaving aside the 1890's era City of Chicago v. Burlington and Quincy).

In the end, ordered liberty means that individuals have the right to be unmolested by government power unless what they are doing affects others. Laws in a criminal sense to regulate health, safety, and welfare then are to be primarily addressed at individual conduct that harms or affects others in a negative way and should be decided at the state rather than federal level. For a useful in depth conversation, McClellan's political science primer at the Liberty Fund is available free online at the Liberty Fund website.

 

[spottedpony]

Don't know the answer but its at the heart of why some including myself decided to double, triple, or even quadruple our ammo stock. It's also why I'm thinking of buying my first AR, previously never wanted one but theirs just something about someone telling me they don't think I need it.

A classic example of why many of us cant find ammo and why price gouging is so prevalant now.