Scope of 2nd Amendment's Questioned

[glummer]

hugh

High quality barrels being necessary for the construction of miltia riflles, the right of the people to make and use steel shall not be infringed.
Do you interpret that to mean the government could outlaw steel for ALL other uses but militia rifles, without infringing the stated right?
If it was an amendment in the USBOR, then I think it would be a declaration that the US has no power to deprive the nation of steel used to make rifle barrels. Regardless of the amendment, I do not believe that the US is delegated jurisdiction over steel, so I do not believe they could ban it for other uses either (not because of the amendment but regardless of it).

I don't know what history or purpose you envision for your amendment, but I can't imagine that people would just up and declare at random the right to work steel, and then list the right to make gun barrels as an example. If there was such an amendment about rifle barrels and steel, I assume that it would have originated in response to the King trying to disarm the Colonies by confiscating steel used to make rifle barrels, and I assume that is what the amendment would regard.

Hugh, the US has the exact same jurisdiction over steel, as over firearms. You're being evasive. Just answer the question. In the English sentence I italicized above, do you read it as meaning that the only right is for rifle steel, and other applications are not covered?

 

[The Real Hawkeye]

Glummer said:High quality barrels being necessary for the construction of miltia riflles, the right of the people to make and use steel shall not be infringed.


Hugh, the US has the exact same jurisdiction over steel, as over firearms. You're being evasive. Just answer the question. In the English sentence I italicized above, do you read it as meaning that the only right is for rifle steel, and other applications are not covered?

Glummer, if I might presume to answer for Hugh, I believe he is saying that the above language in the US Constitution would limit the US Government COMPLETELY with regard to infringing on the people's right to make and possess ANY kind of steel. However, he believes that the States would not be so limited by the existence of the above language in the US Constitution. He argues, I believe, that since the Federal Government elsewhere in the Constitution is delegated authority over the militia of the US, it also has authority (though not the obligation) to prevent the States from denying individuals access to the kinds of steel suitable for making barrels for militia rifles. However, he would assert, the States may regulate all other types of steel, assuming the State in question has no provision in its own constitution preventing it.

 

[glummer]

Hawkeye,
I don't understand your position here. You say

...above language in the US Constitution would limit the US Government COMPLETELY with regard to infringing on the people's right to make and possess ANY kind of steel.

Which implies a blanket prohibition against government infringement yet:

Hugh said

... the only federal protection of our individual RKBA is as it relates to militia ...

And you said

This (the WRM) is why ...

Both seem to imply acceptance of militia related activities ONLY.

Which is it? The US is prohibited from ALL infringement, or ONLY militia-related infringement?

 

[hugh damright]

The concept of "right" is individual. Only. Period.

Not in Virginia it ain't. We have a BOR which declares collective rights, such as the right to alter or to abolish goverment. It also declares principles of free government, such as having separate branches of government. I reckon a BOR is a declaration of principles of, and limits upon, free government.

Of course, it is not just a Virginian view, it is a view on which the US is founded. The Declaration of Independence also declared that the people of each State have a collective right to alter or to abolish their government.

When the States formed the US of A, the Second Article of Confederation declared that "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled".

When the US Constitution was presented to the States for their consideration, the States were concerned that the US Constitution might be misconstrued, and they wanted it stated explicitly, as the Second Article had, that the States retain their rights. Virginia's request for amendments began by saying "First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government".

My Webster's dictionary has the term "States' rights" in it. It also has the term "States' Righter", and it refers to a person "who advocates strict interpretation of the US Constitutional guarantee of States' rights". And that would be me.

I'm curious which dictionary you are using which defines "rights" as something that only individuals can have.

 

[glummer]

Regarding the scope of the 2A, I see three possible ways for it to cover the States, etc.

1) Original intent/language.
Little Acorn, and others, have argued that, since the 2A does not specify Congress, or the US, as being prohibited, it applies to all levels of government.
This strikes me as possible, but weak. The weakness is, that MOST of the BOR does not specify who it applies to. And relying on what is NOT said makes for a hard argument. I am not familiar with any legal/judicial discussion of this point.

2} Incorporation by the 14th amendment.
This SHOULD be quite strong. How a provision of the BOR can NOT be covered, is beyond me.

3) The militia clause of the 2A.
This one I have never heard discussed, but it seems to me that, since the US is granted authority to arm, equip, specify training, etc., for the militia, then the States have no authority to interfere with the specified militia activities. And restricting the availability of arms is certainly an interference. There should be some sort of legal opening here, although the most obvious one would require a US vs State court case.

 

[glummer]

Hugh

Not in Virginia it ain't.

So rights can be of individuals, The People, or a State. That still doesn’t get to anything like the militia.

 

[hugh damright]

So rights can be of individuals, The People, or a State. That still doesn’t get to anything like the militia.

Politically speaking, a State is a body of people. And this same body of people is the Militia. State=People=Militia.

 

[hugh damright]

This one I have never heard discussed, but it seems to me that, since the US is granted authority to arm, equip, specify training, etc., for the militia, then the States have no authority to interfere with the specified militia activities. And restricting the availability of arms is certainly an interference.

Never heard discussed? How many times have we tried to tell you that the only federal protection of our individual RKBA is as it relates to the federal miltia power?!?!?

But restricting arms doesn't necessarily interfere with the federal militia power. Suppose that a State banned handguns, and the US need to call forth militia from that State ... do you really think that would say "we can't come because all we have is shotguns and rifles"? And if a State banned some rifles, but not others, would they say" we cannot come because we only have certain brands of rifles"?

 

[The Real Hawkeye]

Which is it? The US is prohibited from ALL infringement, or ONLY militia-related infringement?

I suggest you reread my post. The Second Amendment completely restricts the Federal Government from enforcing ANY law which would have the effect of infringing on (i.e., limiting the exercise of) our individual or collective right to keep and bear arms.

Now, different subject, the power to call out the militia empowers the Federal Government to guarantee the availability of suitable arms for the militia, i.e., you and I. This, however, does not prevent the States from outlawing all weapons but M16 rifles, if it so chose.

Third new point: If the States chose to do the above, i.e., outlaw all firearms in the hands of civilian other than M16 rifles, this would be an infringement of our right to keep and bear arms, which is a right we possess as adult human beings, and does not derive from government. It would not, however, be a violation of the US Constitution. Who, then, is empowered to address this violation? We the people of the State which is violating said right are empowered to address this violation, but the US Government is not. In order for it to be so empowered, it would need to have been delegated the power to do so via the US Constitution.

 

[hugh damright]

The Second Amendment completely restricts the Federal Government from enforcing ANY law which would have the effect of infringing on (i.e., limiting the exercise of) our individual or collective right to keep and bear arms.

But, of course, if there was no Second Amendment, the federal government would still have no gun control powers. I think it is a better perspective, instead of saying that the Second Amendment denies the feds gun control powers, to say that the feds are not delegated gun control powers regardless of the Second Amendment. It's not as if we could take away the Second Amendment and then the US would have gun control powers. The way I look at it, it is not the Second Amendment but the nature of the compact that denies the US gun control powers.

 

[glummer]

Hugh

How many times have we tried to tell you that the only federal protection of our individual RKBA is as it relates to the federal miltia power?!?!?

I was referring to restrictions on State, not Federal, infringement.

But restricting arms doesn't necessarily interfere with the federal militia power

“Necessarily” is not what is significant; “actually” interfering is what would be unconstitutional. And, since military, and military-style, weapons, are what are mostly targeted nowadays, I suggest that does interfere. If the unorganized militia is called out, and no one has any familiarity with the types of arms in use by the organized militia, that is a significant impediment to their effectiveness.

Politically speaking, a State is a body of people. And this same body of people is the Militia. State=People=Militia.

No. A State is not just a body of people. A State is a special organization of people. And it does not necessarily include all, or even most, of the people. A State has all sorts of powers that “a body of people” do not. And does the VA Constitution refer to a “right of the militia?”

... if there was no Second Amendment, the federal government would still have no gun control powers.

The US has taxing, and interstate commerce powers, which is just as good, without the 2A. So the question still is, does the amendments prohibition extend to ONLY militia weapon(steel), or is it a blanket constraint?