Second Amendment discussion (kinda long)

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ump45,

(Whewww... Spent the last 50 minutes reading this just once... I'll have to come back for a thorough reading later)

See what you started (or was it your professor?).
I dare you to print this entire thread out, word for word, post for post and use as fodder IF and when, the 2nd Amendment discussion ever comes up in class.

To all who posted... "I LOVE YOU MAN, and I MEAN THAT" (now can I have your beer?).

Since WE are the government, WE can have any damn "arm" WE can keep and bear, it being necesfary to a free state, and THAT right cannot be infringed by Congresf since WE are also members of and maintain a well regulated milita (as if thats germane). In theory, there is no US and THEM when referring to Armed Americans or our Government. We just are. Armed. Americans. US.
 
From my very old friend Mike, whose history and career are secret but are a source of enormous respect:

When the supreme court took on a recent 4th amendment case, the issue of the term "the people" came up. It was relevent to the case at hand.

In their decision, the court said that the term "the people" meant the same thing in the first, second, fourth...... etc. They SPECIFICALLY mention the second in their decision. True enough, you could make the point that it wasn't a second amendment case.... and it wasn't. But it did clarify that "the people" means the same thing in ALL the amendments that contain it. There are none that are "different" or "special" because they would have called it out that way if it were different in one of them.

So, with that in mind, the first, second, fourth, etc, only apply to the militia, because THAT is what it means in the second..... You see what I'm getting at here? I don't know if you saw my short ones with [name withheld], but he's talking the issue elsewhere with some folks that are fairly astute [that's you folks on the High Road]. In their discussion, it becomes apparent that this amendment might (does?) contain two separate concepts. One involves the "people," the other the militia. Not a bad interpretation...... but here are some quotes that you might appreciate:

"Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crime. --- Thomas Jefferson

"A free people ought to be armed" --- George Washington

"THE PEOPLE are confirmed by the article in their right to keep and bear their PRIVATE arms."-- Tench Coxe

"The constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation ---- James Madison

The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in THE PEOPLE" --- Fisher Ames

"The defence of one's self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law." --- James Wilson,

AND MY FAVORITE:

"The said constitution shall never be constructed to authorize congress to prevent the people of the United States who are peaceable citizens from keeping their own arms" --- Samuel Adams


What else can be said about what these folks meant when they wrote the constitution or those that understand its meaning best? It seems clear to me and this is just the short list of quotes.
 
Originally Posted by freewheeling:
From my very old friend Mike, whose history and career are secret but are a source of enormous respect:

When the supreme court took on a recent 4th amendment case, the issue of the term "the people" came up. It was relevent to the case at hand.
Hey Free ... can you ask your friend which case that was? I would like to reference it when a 2A conversation comes up.
 
Where do machine guns fit into this line of thinking?
Gray area. Point of contention. To be determined. Where the battle will rage.

Alright, then, let's contend! My position is that machine guns are 'arms', since the direction of force is determined at the time of firing, making the application of force a concious decision by the user. The other category, which I'll call 'ordnance', has its force released at the time of its landing, uncontrolled by the user.

Since responsibilty and authority are supposed to go hand in hand, you must be able to be responsible for the resting place of any projectiles you have the authority release, which can be done with a machine gun, but not with explosive bombs.

With this in mind, I'll get into a few technicalities - I am aware of explosive "shaped charges", which do not explode quite uncontrollably. They are not unidirectional, however, and would still be ordnance. I am also aware of non-explosive artillery, which are long-range. I would say that these are arms, even if not conveniently portable by one person.

What say you?
 
Freewheeling, you might pass back to your acquaintance a quotation out of today's judicial system. It is not quaint, dusty, or ambigious. It is crystal clear and to the point.

My excellent colleagues have forgotten these bitter lessons
of history. The prospect of tyranny may not grab the headlines
the way vivid stories of gun crime routinely do. But few saw
the Third Reich coming until it was too late. 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.


Silveira v. Lockyer,Judge Kosinski, Ninth Circuit Court of Appeals,
 
Freewheeling:

There's something you're missing. It's huge.

It's the fact that governments, by their very nature, ARE THEMSELVES WEAPONS OF MASS DESTRUCTION.

It doesn't matter how piss-poor a gov't we're talking about. Pol Pot and his loony band in Cambodia managed to geek 1/3rd of his nation's population, a record unrivalled by Hitler, Stalin, Mao and every other goddamn tyrant we've seen lately, or throughout history for that matter. And he did it in less than eight years.

You're worried about a screwball getting hold of a nuke or something. And because of that fear, which seems to extend all the way down to fully automatic personal weapons, you want to give the government control over weapons access.

That's simple madness. Sorry to be blunt, but it really is evidence of an unreasoned phobia...esp. when taken down to the level of full-auto infantry weapons.

In just the 20th Century, at least THREE tyrants each managed to outright murder more people than have been killed in private murders in all of US history, even including the "Indian wars" and slave periods. And each of them did so in a horrifyingly short period of time - Hitler in about 9 years, Stalin about 25 and Mao about 15 if I recall right...the latter two managed at least 20 million people each, NOT counting war dead, that's pure civilian murders.

Would legal full-auto rifles in the US increase murder rates? Maybe a hair, although I don't take it as a given.

But if it drops the odds of a turkey like Stalin or Pol Pot taking firm control over the USofA, IT WOULD BE WORTH IT.

"For the children"[tm].
 
Jim:

n just the 20th Century, at least THREE tyrants each managed to outright murder more people than have been killed in private murders in all of US history, even including the "Indian wars" and slave periods. And each of them did so in a horrifyingly short period of time - Hitler in about 9 years, Stalin about 25 and Mao about 15 if I recall right...the latter two managed at least 20 million people each, NOT counting war dead, that's pure civilian murders.

Would legal full-auto rifles in the US increase murder rates? Maybe a hair, although I don't take it as a given.

But if it drops the odds of a turkey like Stalin or Pol Pot taking firm control over the USofA, IT WOULD BE WORTH IT.

The point I'm making is that the availability of that class of weapons to all doesn't lower the odds of a totalitarian regime coming to power, *it raises them*. There's something you're missing AND IT'S HUGE. Suicide terrorism is part of the three-stage life cycle of a totalitarian ideology. It's a form of aggressive strategy that is, for all I can tell, ONLY practiced by totalitarian movements either at the begining of their life cycle, or at the end, or when threatened with imminent defeat. It's one of their "signatures" if you will, going all the way back to the Spartans. (In the middle they use state terror instead, as you rightly point out.) As a liberal, or even a libertarian, you simply could not match the death and destruction that a well-armed and dedicated totalitarian movement could produce... so you'd lose. And yes, I do fear that. It's not a phobia. It's wisdom. They love death. You don't even like it.
 
Jim:

I suppose I should elaborate on that last statement. We generally defeat totalitarian movements by outproducing them. I therefore think it's folly beyond imagining to freely give (or profitably sell) them the benefits of our production so they can murder us. You see?
 
Waitone:

My excellent colleagues have forgotten these bitter lessons
of history. The prospect of tyranny may not grab the headlines
the way vivid stories of gun crime routinely do. But few saw
the Third Reich coming until it was too late. 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.

I'd prefer to avoid a confrontation on the concept of parity, but I'm certain my friend is unconvinced, as am I. He has read the FF far more extensively than I, so if he's lurking and wants to add anything this might be the time. I'll do battle with you on the concept if you insist, but we'll come out of it smelling like stale cigarette butts and B.O. and I have a date later.
 
Alright, then, let's contend! My position is that machine guns are 'arms', since the direction of force is determined at the time of firing, making the application of force a concious decision by the user. The other category, which I'll call 'ordnance', has its force released at the time of its landing, uncontrolled by the user.

Since responsibilty and authority are supposed to go hand in hand, you must be able to be responsible for the resting place of any projectiles you have the authority release, which can be done with a machine gun, but not with explosive bombs.

With this in mind, I'll get into a few technicalities - I am aware of explosive "shaped charges", which do not explode quite uncontrollably. They are not unidirectional, however, and would still be ordnance. I am also aware of non-explosive artillery, which are long-range. I would say that these are arms, even if not conveniently portable by one person.

What say you?

Assuming the governing principle is the "don't point at me" concept that was raised earlier I'd say you have a fairly devastating argument. However, the link I can see to the Second involves the concepts of "bear" and to a lesser degree the meaning of "arms" in common usage by the FF. So one would have to argue that in light of that they had some concept such as the one you're employing in mind, if only vaguely. And the question is "how vaguely." I agree that we have to leave the concept of "bear" behind when we arrive at the modern era, if only to exclude suitcase nukes and smallpox vials. Again, the test is whether they would be appalled. So, could one make a case that in excluding cannon they were concerned only about exploding shells, since it's my impression that the bulk of cannon did not use exploding shells at that time? So I probably would exclude all non-exploding ordinance as well, including trebuchet. (Although, by statute, people could still toss humans, pumpkins and pianos around with them if they like.) The reason being that since the projectile destroys structures, the debris turns into projectiles which cannot be controlled.

So far I still see machine guns as OK. I don't like it, but...
 
Another take on what 'people', 'militia' and 'shall not be infringed' shoul mean

The most notorious moot point is whether 'militia' means 'all able bodied men', or some second-line armed force, like the National Guard. Let me ask: Has there ever been any democracy, or any tyranny, for that matter, which denied arms to its regular, semi-regular or irregular troops? So the right of any military through guerilla armed force supported by a 'free State' to keep and bear arms is uninfringeable, and the Second Amendment cannot be about them. That leaves us with the individual right.

Best regards
 
Alexey931:

The most notorious moot point is whether 'militia' means 'all able bodied men', or some second-line armed force, like the National Guard. Let me ask: Has there ever been any democracy, or any tyranny, for that matter, which denied arms to its regular, semi-regular or irregular troops? So the right of any military through guerilla armed force supported by a 'free State' to keep and bear arms is uninfringeable, and the Second Amendment cannot be about them. That leaves us with the individual right.

I'm satisfied that it doesn't matter what militia meant. They clearly felt this important enough to be placed in the Bill of Rights, so it means something beyond simply maintaining a cadre of youth with gun skills who can be called up quickly in a draft. They clearly meant a state of mind that develops from bearing arms since early youth that makes for superb soldiers and an unbeatable army. And if that isn't *still* a critical value then the FF were just stupid to give it such high import. So, your honor, were the founding fathers just stupid ignorant men about matters of war and armies?
 
TO FREEWHEELING

Hey, it's me. Man, it has been a day.

The citation was a different year. My brain cells are dying, help me.... Here it is:

1990 US vs Verdugo

" '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "

The above is the applicable quote from the decision. It simply states that the "people" means the same thing in each of the amendments, and the preamble of the constitution itself. The amazing thing, to me, is that the 1933 court didn't realize that, too. So, if we incorporate the 1933 decision, itself, into the statement above, it CLEARLY means..... the national guard (militia) are the only folks that have the freedom of speech, for one. :)

Hope this one helps..... Mike (the Muzzleloader)
 
quote:
--------------------------------------------------------------------------------
Think about how dumb the average person is, then remember that half of them are dumber than that.
--------------------------------------------------------------------------------

That should be "median person"

Well, I was assuming a normal bell-curve distribution....

jimpeel wrote:
Tell him this: If he does not subscribe to the standard model (individual right) then he must subscribe to the collective rights model or the sophisticated collective rights model. If so, then simply tell him the following:
<snip>

Jim, your remarks are BRILLIANT!

freewheeling, I've been pondering exactly those questions as of late.

Are there any circumstances in which it is right for a group of people to do something which no individual member of that group may do? Why or why not?

Yes, a properly-selected jury may adjudicate guilt and (in some states) impose punishment whereas no individual juror may do so. Likewise, 12 people getting together and deciding who should live and who should die is not a jury, but a vigilance committee.

Jeff White said to freewheeling:
I suggest you study history.

Jeff, please re-read that sentence as if you were freewheeling. I am not sure you really wanted to came off so condescending.

You do indeed make good points.

I ask you, if you start putting limits on a right, where does it stop?

There are plenty of examples of speech that is nonetheless not protected by the First Amendment. Libel, slander, fraud, kiddie porn, publishing the names of secret agents, the schedules of troops movement or departure times of warships, etc. And yet the 1st Amendment says "Congress shall pass no law..." NO LAW seems about as iron-clad as SHALL NOT INFRINGE.
 
It occurred to me that although you helped with the definitions of "arms," "militia," and "regulate," the meaning of "to bear" is still hanging. Could you look that up for us?

Be careful as simply looking up the words "to bear" in a dictionary published circa 1790 may not give you a historically accurate understanding. In the 18th Century, "bear arms" was a term of art with a distinctly military context. See John Kenneth Rowland's 1978 dissertation on the subject.
 
idd:

Be careful as simply looking up the words "to bear" in a dictionary published circa 1790 may not give you a historically accurate understanding. In the 18th Century, "bear arms" was a term of art with a distinctly military context. See John Kenneth Rowland's 1978 dissertation on the subject.

I hope you'll forgive me for not having read the dissertation, but I'll hazard a few tentative opinions until I have time to look at it. (And having written one of those things myself, let me caution you that there are only two kinds: bad ones and unfinished ones.) I'm sure someone had to argue that the meaning includes ordinance as well as nukes and bio/chem weapons. Suffice to say that if we insist on that interpretation the public will be willing to grant considerable lattitude to those who interpret the meaning of "militia" to specify an obsolete method of raising an on-call army. Moreover, if Muzzleloader is reading this he can verify that the phrase "bear arms" as used by the founders generally (entirely?) excludes ordinance, and probably does so intentionally. But I'll check out the dissertation, and thanks for the cite.
 
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Yes, a properly-selected jury may adjudicate guilt and (in some states) impose punishment whereas no individual juror may do so. Likewise, 12 people getting together and deciding who should live and who should die is not a jury, but a vigilance committee.
Bad example. The jury doesn't have a right to determine guilt. It is the accused that has the right to have guilt determined by a jury. A jury is required to exercise the individual right of the accused.

Jury duty is an obligation. You can choose not to exercise your rights. But you can't choose to skip jury duty. That's why it's called jury *duty*.
 
Graystar:

Jury duty is an obligation. You can choose not to exercise your rights. But you can't choose to skip jury duty. That's why it's called jury *duty*.

And the use of arms (including light arms, ordinance, and the extensive weapons and machinces of war) by a national army are, likewise, not a right but an obligation.

But much more importantly, as a friend of mine pointed out to me at breakfast this morning, absent other human beings the only "rights" you have are to freeze, burn or starve to death. You can but choose to resist, and absolutely no rights enter the situation at all. Your "rights" arise entirely as a result of your interaction with other humans, in what James Buchanan refers to as "twoism." So it's essentiallly meaningless to talk of "individual rights" outside the context of the group (at minimum, two).
 
And the use of arms (including light arms, ordinance, and the extensive weapons and machinces of war) by a national army are, likewise, not a right but an obligation.
Yes I know. That is exactly what I said in my first post on page 4:
As with many of the rights in the Bill of Rights, the Second is part right, part obligation. The right to a jury trial creates an obligation to serve on a jury. The right to have witnesses compelled to testify creates an obligation to testify when called upon. With the Second, the right to keep and bear arms creates an obligation to fight when called upon. That is why versions of the Second that contained exemptions for religious beliefs were rejected.
But much more importantly, as a friend of mine pointed out to me at breakfast this morning, absent other human beings the only "rights" you have are to freeze, burn or starve to death. You can but choose to resist, and absolutely no rights enter the situation at all. Your "rights" arise entirely as a result of your interaction with other humans, in what James Buchanan refers to as "twoism." So it's essentiallly meaningless to talk of "individual rights" outside the context of the group (at minimum, two).
That is also correct. The concept of rights has always referred to privileges and powers respected amongst a species. Lions hunt and kill to eat, but they would never eat each other. A cockroach, on the other hand, will eat its young if food is scarce, and no roach would deny another this right. Self-determination is not a right of a bee. You are born into your job and that’s what you do.
 
So Graystar, I'm not sure how we disagree. Weren't you the one who said "Show me a right the group has that the individual doesn't?" I agree we both somewhat abused the concept of a "right." Groups certainly have legitimate functions and procedures that don't translate into individual rights, and that applies to the use by a group entity like the state of WMD to protect its citizens, as it applies to the functions of a jury that the individuals in the jury can't assume as either a duty or a right. The sense of it (whether you use the term "rights" or not) is that the group can legitimately do things that the individuals who compose the group, acting on their own, cannot legitimately do.
 
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So Graystar, I'm not sure how we disagree.
I don't know if we ever did.
Weren't you the one who said "Show me a right the group has that the individual doesn't?"
Nope. I already know there's no such thing.
I agree we both somewhat abused the concept of a "right."
I don't. I never said or have ever thought that I abused the concept of a "right."
The sense of it (whether you use the term "rights" or not) is that the group can legitimately do things that the individuals who compose the group cannot legitimately do.
It is extremely important to use the correct term. Do not confuse rights with powers that have been delegated. Powers are delegated by law. Our fundamental rights are not created by law. They simply exist.

Because we have a right to a jury trial, the law defines the jury system, imposes the obligation, and delegates the power of determining guilt to the jury. It is the same with any group that has a power, such as localities and even school boards. That is the nature of delegated powers. *Someone* has to hold the delegated power. That someone is defined in law. At no time is the holding of such power considered a right.
 
Weren't you the one who said "Show me a right the group has that the individual doesn't?"
Freewheeling,

I said that, early on. And followed up on it in a PM.

pax
 
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