Reading the Second Amendment

[antsi]

Some examples of collective rights are:

Whatever. You're bending over backwards and tying yourself in knots to argue that where the Constitution says "the sky is blue," it really means "the sky is yellow." It is absurd on the face of it.

The only reason someone would attempt to swallow such a tangle of nonsense is if they had already decided they want to take the people's guns away and were trying to concoct justifications for it.

 

[geekWithA.45]

Again Hugh, you continue to assert mutual exclusivity where none exists.


:banghead: :banghead: :banghead:

{Why do I bother?}

 

[hugh damright]

The only reason someone would attempt to swallow such a tangle of nonsense is if they had already decided they want to take the people's guns away and were trying to concoct justifications for it.

I resent that. Just because you cannot conceive of what I am talking about is no reason to insult me by saying that I want to take people's guns away. Perhaps you are not up to walking on the high road and should leave my thread.

 

[hugh damright]

I think I need to further promote the idea of a political or government perspective.

If we consider the Second Amendment's term "free State", there are different definitions for both the word "free" and the word "State". Generally speaking, the word "free" means "unrestricted" ... and the word "state" can mean "condition", such that a "free State" might refer to an "unrestricted condition", a libertarian society, where everyone is free and has the highest degree of personal liberties.

But if we consider that the Constitution and Bill of Rights are political documents, and use the political definition of words, then a different meaning appears ... politically speaking, a "State" is a body of people under one government, whatever kind of government it might be ... it might be a communist State, a monarchial State, an oligarchial State, a socialist State ... and then there's a "free State", which is a body of people under a specific form of government - free government.

In reference to government, "free" means not subject to the arbitrary rule of a King or aristocracy, but subject only to the rule of laws which are consented to by the people. Free government is based upon consent of the majority, or majoritarianism. It is founded upon the collective right of a people to govern themselves, and to alter or to abolish their government if they find it is no longer to their liking. And it is my assertion that a Bill of Rights enumerates principles which are needed to ensure this majority rule.

The word "rights" also has many meanings, although some people seem to insist that it can only refer to libertarianism. But in a political document, I suggest that the object is political rights - principles which are "right" according to a system of government.

For example, my Virginia Bill of Rights declares that government should have separate branches. That is not a libertarian/individual right. The libertarian view will not hold up if you consider more than one example, if you go beyond the way Madison drafted the US BOR and look at other examples. Virginia's Bill of Rights also declares the right of the majority to alter or to abolish the government ... the individual rights view simply does not hold up. What does hold up is the view of political rights.

I challenge everyone here to read the US BOR and try to imagine if there is some way that the rights enumerated might be principles of free government intended to protect majority rule. It doesn't pop out a first glance, it's a learned view. But just ask yourself, how might a minority take over? Might they take over the presses? Take over the guns? If a minority is taking over and someone speaks up, might they ransack his house, arrest him on false charges and hold him without trial? Might this be why the Bill of Rights says that we must have a free press, an armed people, the right to be secure in our persons, houses, papers, effects, indictment of a Grand Jury, and speedy trials?

 

[boyd425]

I think that it's a bit late in the debate to deny the existence of collective rights. Some examples of collective rights are:
snip
Some of you guys better start paying attention, I may throw a pop quiz!

Quizmeister ; ) the post you replied to mentioned collective rights only in passing with a smiley at the end and -in- -parenthesis-. The -point- of the post was the sentence at the -front-: "the national guard was formed more then 100 years after the constitution"... please pay attention ; ) You used that as the link between the 2nd and the States right. And like I said it's a strawman foisted on us decades ago by handgun control inc. Time to get over that one.
boyd425

 

[antsi]

I resent that. Just because you cannot conceive of what I am talking about is no reason to insult me by saying that I want to take people's guns away. Perhaps you are not up to walking on the high road and should leave my thread.

Nothing I said was ad hominem.

You're the one who's implying that the only reason I don't agree with you is because I'm too stupid to understand the brilliant complexities of your argument.

Perhaps you are not up to walking the high road yourself.

I do think it's a natural curiousity, if someone is working overtime to establish his legal right to burn down my house, to wonder "why does this guy want to burn my hourse down?" And it's very interesting that you would take such huffy umbrage at such speculation. Even more interesting that you'd come on a gun board expounding a reinterpretation of the second ammendment that basically emasculates it, and you are shocked, shocked you tell us, shocked and horrified when anyone wonders if perhaps you're not in favor of people keeping and bearing arms.

You're a very interesting person, Hugh Damright.

But I will be very pleased to stay out of your thread.

 

[geekWithA.45]

I challenge everyone here to read the US BOR and try to imagine if there is some way that the rights enumerated might be principles of free government intended to protect majority rule.

I can certainly read it in that way, but Occam's Razor strongly suggests that it is an inferior reading.

The simpler reading from the protected personal rights is more parsimonious, does not offend the Lockean thesis of certain natural powers yeilded to form the animus of government, while retaining other rights not specifically yeilded.

This reading is also more consistent with the bulk of history, legal, and scholarly analysis.

Hugh: We UNDERSTAND what you are saying. We're not dull oafs. WE REJECT IT FOR SOUND REASON.

 

[hugh damright]

This reading is also more consistent with the bulk of history

No SCOTUS has ever seen it that way ... that reading is antithetical to our constitutional legal history.

 

[carebear]

cite?

 

[hugh damright]

I cannot cite that no SCOTUS has ever said something, it would be up to you to cite them saying it. Show me one SCOTUS case that says that the Second Amendment limits the States, or that the US has jurisdiction over the individual RKBA except as an aspect of the collective right to militia.

I can show you cases where the SCOTUS says that the Second Amendment only limits the federal government, and that kind of thing, but I believe I have already done that here ... anyway, if you really want to check it out, see presser v illinois, us v cruikshank, miller v texas, us v miller, and each of those references lots of other cases and off you go.

 

[carebear]

I cannot cite that no SCOTUS has ever said something, it would be up to you to cite them saying it. Show me one SCOTUS case that says that the Second Amendment limits the States, or that the US has jurisdiction over the individual RKBA except as an aspect of the collective right to militia.

I can show you cases where the SCOTUS says that the Second Amendment only limits the federal government, and that kind of thing, but I believe I have already done that here ... anyway, if you really want to check it out, see presser v illinois, us v cruikshank, miller v texas, us v miller, and each of those references lots of other cases and off you go.

I'm fully aware of the relevant cases, but, in a point of order, YOU were the one making the claim "No SCOTUS has ever seen it that way". I have not made any claim for their decisions, nor that they in particular agree with my position.

Ergo, it is up to you to show that they have in fact stated a position directly supporting you since you are the only one making an appeal to their authority.

Since it has been fairly clearly demonstrated that your assertions to this point depend on a tortuous interpretation of the text, unsupported by general Constitutional scholarship, it would be helpful if you could show that in fact the Supremes have backed your opinion. That would provide at least one credible supporter.

 

[Art Eatman]

(Whine) Hardly anybody reads the Preamble to the BOR (or my occasional references to it) which says WHY there is a BOR.

All these arguments against the pro-gun folks' view of the 2nd don't seem rational to me, given the purpose of the BOR.

hugh, I've been away for a few pages. Did you refute my reference to Urriquez-Verdugo, insofar as SCOTUS talking about "the people" meaning individuals throughout the BOR?

Art

 

[Graystar]

The idea that the Founders, who were extremely cognizent of the principles of the English Glorious Revolution of 1689, somehow failed to regard the right mentioned in the 2nd amendment as an individual right is just a little bit silly.

Oh please...half those guys were slave owners. Please don’t elevate them to some special level of enlightenment on rights and government-forming, because they had neither.

Practically every word in the Constitution and Bill of rights was argued over. Some didn’t want a bill of rights at all! Few were happy with the results, as indicated by the fact that the Constitution was barely ratified. It’s a miracle this government ever got off the ground at all.

It is worth noting that the Right to Bear Arms, contained therein, was considered an individual right possessed by all subjects of the Crown by the English in the 1700's.

and what of that “as allowed by law” at the end?

 

[odysseus]

I'm sorta simple-minded, so I have difficulty with angels and pinheads and dances thereupon.

So, it looks to me like I oughta start with the purpose of the BOR. That's pretty obvious from the Preamble; the BOR is to restrain the central government--the "State"--from abuse of power.

Seems to me it's hard to restrain a State if only the employees of the State have guns. Ergo, the citizenry is supposed to be armed.

Next thing is that one fella did most of the writing. I really doubt he wandered through the rose bushes and tulips with several dictionaries, picking and choosing among word meanings. Seems to me that if "the people" is singular one place, it's singular everywhere. That's pretty much what SCOTUS said in 1992 with Urriquez-Verdugo.

We already know that "militia" is just us folks, the male citizenry from, what, 16? on up to around 45 years. I'm too old to now be part of it. (What the heck. I already did my marching, 50 years ago.) Since we're no longer male chauvinist pigs, women are now part of the militia, and high time, I say!

In the Anti-Federalist papers, the proponents of the Second Amendment stated quite boldly that the right to bear arms did not apply to "the insane and those of ill repute". I've yet to hear anybody disagree with the idea that certain crazy people ought to have firearms. I pretty much am forced to assume that "ill repute" at the very least means what we today call "felons". At any rate, even the proponents agreed that there were certain limits to RKBA. The limits, however are well-defined insofar as non-nit-picking everyday english is concerned. (I have faith that there will always be those who envision the picking of nits as a career choice.)

So I have no difficulty in agreeing with the NRA/GOA/JFPO/etc. about the Second Amendment. The view is in accord with the Preamble...

, Art

+1.

Agenda's aside, I don't see how anyone can read it differently.

 

[RealGun]

I think it's important to remember that the amendments were drafted by Madison, who had a federalist/nationalist intent of a BOR that would limit the States and federalize individual rights ... but Madison's intent failed, and we got a BOR which only limited the federal government.

Individual rights have since been "federalized" by the 14th Amendment, post Civil War. The 14A has yet to be applied to the 2nd Amendment by way of a Supreme Court ruling. That is to say that States cannot rightfully infringe upon the RKBA, but some will continue to arrest, fine, confiscate, and prohibit until legally challenged to the desired outcome. As we have seen thus far, the federal courts resist granting cert to such cases. That raises the question of whether a denial of cert should require a justifying comment from the Court.

 

[The Real Hawkeye]

Practically every word in the Constitution and Bill of rights was argued over. Some didn’t want a bill of rights at all! Few were happy with the results, as indicated by the fact that the Constitution was barely ratified. It’s a miracle this government ever got off the ground at all.

That's because all sides of the debate were concerned that the form of Constitution the "other guys" wanted would result in a loss of liberty, and they had different ideas about how to prevent that. Both the Federalists and the anti-Federalists wanted a strictly limited Federal Government. The Federalist argued against a Bill of Rights because they believed that 1) it wasn't needed, since the Federal Government does not have plenary power, having its powers limited to those listed, and 2) a Bill of Rights gives the false and dangerous impression that, apart from the restrictions found in said Bill of Rights, the Federal Government's powers are plenary, i.e., that it had all powers not specifically denied to it in writing, the opposite of what either side wanted. The anti-Federalists wanted a Bill of Rights anyway because they believed that all government was deadly dangerous in that they all eventually tend to assume (i.e., usurp) powers not delegated to them, so they wanted a constant reminder, in the body of the Constitution itself, that there were certain powers that they could never claim. Both sides, however, had the same goal. It wasn't as if one side was arguing for an all powerful Federal Government and the other side was arguing for a limited Federal Government.

 

[hugh damright]

Ergo, it is up to you to show that they have in fact stated a position directly supporting you since you are the only one making an appeal to their authority.

Since it has been fairly clearly demonstrated that your assertions to this point depend on a tortuous interpretation of the text, unsupported by general Constitutional scholarship, it would be helpful if you could show that in fact the Supremes have backed your opinion. That would provide at least one credible supporter.

I have already done that . Here, I will repeat myself:

Presser v Illinois - "The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to ... the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.'"


Miller v Texas - "it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts."

Also I could mention US v Cruikshank - "The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, 'the scope and application of these amendments are no longer subjects of discussion here.' They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States."

Again, you guys need to show me one case, one SCOTUS case from all of history, which says otherwise. Put up or ...

 

[RealGun]

Show me one SCOTUS case that says that the Second Amendment limits the States, or that the US has jurisdiction over the individual RKBA except as an aspect of the collective right to militia.

Making such a demand is probably why the federal courts want to support it. They have simply denied cert to all such cases, recently Silveira v Lockyer. That was a good case but was denied a hearing. Those denials are always without comment or accountability, giving us an imperial court along with good reason to be cynical about due process and to be disrespectful of the Court. It also makes us intensely interested in who is nominated to the higher Courts.

Lousy Court decisions don't trump what the Constitution actually does or does not say. They only establish what the current legal situation might be in practical terms. One appalled at some of these decisions can only hope that at some point the Constitution will be properly acknowledged by some overriding ruling. That will never happen until the Court feels compelled to hear some of these cases which it tries to avoid. So who sits on the Court really matters.

 

[The Real Hawkeye]

It often amazes me that on certain fundamentals I strongly disagree with RealGun, yet on final conclusions, we almost always agree. This is one such case.

Regardless of decisions to the contrary, the Second Amendment, without setting limits, certainly references a right belonging to the people to keep and bear arms. Additionally, it goes further and establishes as law that this right "shall not be infringed." Unlike the First Amendment, it does not specify that Congress only shall make no law infringing this right, just plainly that it shall not be. But the Federal Government is not, by the Amendment itself, delegated any power to enforce this law of non-infringement against State governments which violate it. Absent such delegated authority, and considering its stated purpose, all limits established in the Bill of Rights must be assumed to apply only to the Federal Government.

In Section 8 of Article I, however, we find that the Congress is delegated the power, by the States, to "call forth the militia." The militia is referenced in the Second Amendment as that body which is necessary for the security of a free State. It is that body's membership (i.e., "the People,") who are guaranteed a general non-infringement of the right to keep and bear arms. Therefore, I would contend, the Federal Government is empowered to fully guarantee the non-infringement of this right, it being central to the availability of a militia, the calling forth of which is one of the powers specifically delegated to Congress. Furthermore, since the Second Amendment states flatly that this right shall not be infringed, it is not only within the powers of Congress to defend the liberty of the people to exercise this right, but a Constitutional mandate to do so.

 

[Gordon Fink]

Why can’t “Congress” in the First Amendment simply mean a legislature instead of the federal Congress? Either way, Article VI still entreats the several states to obey the First Amendment.

No doubt hugh simply wants his Virginia to be legally allowed to infringe the RKBA of the wrong people.

~G. Fink

 

[hugh damright]

Lousy Court decisions don't trump what the Constitution actually does or does not say.

I would not care to argue otherwise. However, I am not talking about a case or two, but rather about a principle on which the SCOTUS has held firm throughout our entire judicial history. I think at some point a person has to consider that maybe there's something there, and instead of asking what constitutional law can learn from him, he has to ask what he can learn from constitutional law.

since the Second Amendment states flatly that this right shall not be infringed, it is not only within the powers of Congress to defend the liberty of the people to exercise this right, but a Constitutional mandate to do so.

I was with you ... but this part sounds as if the Second Amendment is not limiting the US powers but rather delegating additional powers to them ... maybe it's just semantics ... often when I look up a SCOTUS case I end up on a findlaw/caselaw site which says this about the Second Amendment:

"Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force." http://caselaw.lp.findlaw.com/data/constitution/amendment02/

Why can’t “Congress” in the First Amendment simply mean a legislature instead of the federal Congress? Either way, Article VI still entreats the several states to obey the First Amendment. No doubt hugh simply wants his Virginia to be legally allowed to infringe the RKBA of the wrong people.

I am not the one trying to misconstrue plain English. Maybe "Congress" really means the States? Get with the program. And if all you can do is repeat the tired, pitiful attempt to demonize me by saying that I want to ban guns, then please get off my thread.

 

[The Real Hawkeye]

Why can’t “Congress” in the First Amendment simply mean a legislature instead of the federal Congress?

Because the Bill of Rights is a list of things the Federal Government cannot do. That is clear from the historical record. They were concerned that the Federal Government would start usurping powers that belonged to the States and the people, so they placed these limits on the Federal Government, not on the States, which each had their own Constitutions placing limits on what they could do, and listing their just powers.

 

[hugh damright]

Obviously Hawkeye wants to ban guns.

 

[carebear]

I haven't addressed whether the Constitution restricts States as well as the Feds. I've been addressing your contention that the people are covered only as amorphous members as their several States, so your citations aren't on point to my issue.

Although, if I may reference Miller quickly before I head out to shop some more, I would note that at no point did the Justices make mention of Miller's individual right to keep and bear a shotgun, it is implicitly taken as a given.

They apparently felt that that particular weapon's suitability for militia use was the only issue; not whether Miller, with no claimed association with his local State organized or unorganized militia as part of his defense, was entitled to a weapon in general. Miller says they can infringe a particular gun within some limits, not the man's right to one in general under any.

That's pretty strong implication that the Supreme's then agreed "militia" covers all individuals, not just signed up members of a formal (or even informal) State or local group. Which is in line with the US Code and historical definitions of unorganized militia.

 

[The Real Hawkeye]

I was with you ... but this part sounds as if the Second Amendment is not limiting the US powers but rather delegating additional powers to them ....

I was asserting that the Federal Government is empowered to fully guarantee the non-infringement of this right because it is central to the availability of a militia, the calling forth of which is one of the powers specifically delegated to Congress in Article I, Section 8. So, the Second Amendment places a limit on the Federal Government (no Federal laws which infringe on the right of the people to keep and bear arms), while Article I, Section 8 empowers the Congress to call forth the militia referenced in the Second Amendment. The supremacy clause of Article VI empowers the Federal Government to prohibit the States from enacting any laws which have the effect of frustrating the powers granted to Congress. If a State, therefore, were to disarm the militia, this would have the effect of nullifying Congress' power to call forth the militia in response to internal crisis. Therefore, the States are not permitted to disarm the militia (i.e., us), and the Federal Government is empowered to prevent them from doing so.

The Constitution is like a contract between two parties. The States constitute one party, and the Federal Government the other. Both sides are authorized to enforce those parts of the contract which are proper to them, just like any other contract.