Should the 2nd Amendment Truly Not Be Infringed?

[yokel]

In D.C. v. Heller Justice Antonin Scalia writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Maj. Op. at 25

Justice Scalia’s majority opinion in Heller revisits that "ideal of a citizens' militia" theme in reviewing efforts by George III's government to disarm American colonists (pg. 21). Discussing the ancient origins of the right, Scalia notes that "the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents" (pg. 19).

Undoubtedly, Second Amendment has been watered down and abridged to the point of no longer presenting a credible minimum deterrence to any out of control, runaway government that chooses to use a declaration of martial law/state of emergency as a pretext to go the whole hog and remove arms from private hands.

What it ought to look like is a well trained and motivated, disciplined and organized paramilitary force adorned with armament that surpasses your typical gun shop fare.

 

[txblackout]

the irony is that the left hates the police treatment of blacks and then wants only police to have guns.

Gun ownership is the most critical thing to keep the police (govt) in check.

For example police getting shot during no knock warrant entries made police think twice about them.

 

[Frank Ettin]

...police getting shot during no knock warrant entries made police think twice about them....

Let's see you back that up with some evidence.

 

[Old Dog]

For example police getting shot during no knock warrant entries made police think twice about them.

Yeah, I was gonna comment on this statement as well. Actually, all it really does is make the tactical team guys refine their tactics. At any rate, the no-knock warrants would surely seem more of a 4th Amendment issue than 2nd Amendment.

While statements such as this only further serve to promote adversarial relations between cops and gun-owners. Clearly, one who believes this doesn't personally know enough people in law enforcement.

Gun ownership is the most critical thing to keep the police (govt) in check.

Of course the 2A should not be infringed. The problem, as previously noted, lies within the varied definitions of the word "infringed."

 

[AlexanderA]

yokel wrote:

What it ought to look like is a well trained and motivated, disciplined and organized paramilitary force adorned with armament that surpasses your typical gun shop fare.

Despite all of Justice Scalia's discussion of the militia in the Heller decision, his bottom line was that it didn't matter, since the 2nd Amendment right was not contingent on militia membership. In fact, according to Scalia, the Militia Clause was merely "prefatory language," without operative effect, and therefore a nullity.

Regarding the "constitutional militia," the paradoxical thing is that, for the theory to work, it must be universal and unorganized. A self-selected group of volunteers won't qualify, since in all likelihood this would be a group of partisans with a political axe to grind. The "constitutional militia" has to represent society as a whole. That's why present-day "militia groups" are barking up the wrong tree. When we speak of a "constitutional militia," we're talking about "the entire body of the people" and not about some private army. So, as soon as you start to organize a "militia" unit, it loses its constitutional status.

 

[Vern Humphrey]

When we speak of a "constitutional militia," we're talking about "the entire body of the people" and not about some private army. So, as soon as you start to organize a "militia" unit, it loses its constitutional status.

That is correct. The militia serves the community -- the state or government. A privately organized militia is a contradiction in terms.

 

[AKElroy]

You mean the BATFE?

This. When the 20% in this poll ponder how to make us safer, they need to realize that to do so requires the empowering of the very institutions that throughout history have killed BY FAR the most innocents. NOTHING is more blood thirsty than oppressive government. It will take 5 million Sandyhooks to equal the deaths inflicted by governments against their own people in the last 100 years.

 

[AKElroy]

Loosen (but not remove) regulations on select fire weapons. I don't think every person needs to have a crew served weapon or select fire shoulder rifle

You don't think? Let us all henceforth check with you to confirm our future purchases meet with your approval.

My reply above is obviously absurd when applied to you. Why is it less so when applied to government restrictions?

 

[yokel]

Lest we forget that Heller was a narrowly tailored case regarding self-defense within the home and the majority opinion states on pg. 54 that "we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment."

The reason the Second Amendment guarantees individual people the right to keep and bear arms, not the militia companies, is that there was a fear that the federal government would use its power to equip and call the militia to duty as a means to disarm the general population. It was therefore necessary that individuals, in their individual capacity, not their military capacity, have the right to keep and bear arms.

Thus, an individual right for a collective purpose.

The Framers of our Constitution had a fear of standing armies, and of governments backed by them, that one legal scholar calls "almost hysterical." A standing army of professionals, they were sure, would eventually do one of two things: agitate for foreign military adventures to keep itself employed, or turn against its civilian masters to create a military dictatorship. To these two political threats they added a third, moral danger: that citizens used to relying on professionals for the defense of their liberties would come to take their freedom lightly.

The Framers' solution was the militia, an armed body that included all citizens qualified to vote. Whites without property were also eligible for the militia, provided they were not felons, and so were some blacks. The Framers saw this broad-based military institution as a vital protection against tyranny. Politicians and professional military officers might betray the people, but the militia could not because it was the people. And although militiamen might lack the skills and training of full-time, professional soldiers, those defects would be offset by their vastly greater numbers and morale. Politicians might call out the militia to enforce the laws, but always with the risk that if the laws were unjust the militia might decide to sit things out, or even side with the opposition. Think of it as armed jury nullification.

 

[oneounceload]

I voted NO for one major reason - we give illegal and undocumented people the right to vote, the access to free housing, food, medical care, etc. IF you could guarantee that ONLY US citizens were guaranteed the right, then that is one thing; but with the current BS, no.

 

[herrwalther]

You don't think? Let us all henceforth check with you to confirm our future purchases meet with your approval.

My reply above is obviously absurd when applied to you. Why is it less so when applied to government restrictions?

Taking things a little too literal and personally are you? This thread is a thought exercise, dreaming up of hypothetical legalities in regards to the Second Amendment. No, I don't personally believe civilians should own crew served weapons. That doesn't mean I think they should be illegal, de facto, or otherwise like they are right now. Select fire rifles do have some amazing close quarter applications that would serve well in home defense with proper training.

 

[AKElroy]

Taking things a little too literal and personally are you? This thread is a thought exercise, dreaming up of hypothetical legalities in regards to the Second Amendment. No, I don't personally believe civilians should own crew served weapons. That doesn't mean I think they should be illegal, de facto, or otherwise like they are right now. Select fire rifles do have some amazing close quarter applications that would serve well in home defense with proper training.

Point taken, but this is a thread about 2a infringement, so when you state your view, it is going to be taken in that context. The point I was attempting to make is this: That it is odd that we accept as just part of life in America that we need permission to buy a particular type of weapon (NICS), when we would be outraged if we had to seek that same permission from our neighbor. We should be outraged in either case.

 

[RetiredUSNChief]

yokel wrote:



Despite all of Justice Scalia's discussion of the militia in the Heller decision, his bottom line was that it didn't matter, since the 2nd Amendment right was not contingent on militia membership. In fact, according to Scalia, the Militia Clause was merely "prefatory language," without operative effect, and therefore a nullity.

Regarding the "constitutional militia," the paradoxical thing is that, for the theory to work, it must be universal and unorganized. A self-selected group of volunteers won't qualify, since in all likelihood this would be a group of partisans with a political axe to grind. The "constitutional militia" has to represent society as a whole. That's why present-day "militia groups" are barking up the wrong tree. When we speak of a "constitutional militia," we're talking about "the entire body of the people" and not about some private army. So, as soon as you start to organize a "militia" unit, it loses its constitutional status.

Again...take a loot at the ORIGINAL wording, debated and passed by the House and sent to the Senate:


"A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."

 

[Tirod]

There are things being missed. Why do we accept any infringement at all? Because we are sold a bill of goods that people can't be trusted to do the right thing - so we create hoops and loopholes to only allow those who qualify as "trustworthy." We accept infringement - because we accept we are weak and subject to temptation. We don't want to make the wrong decision and restrict ourselves from making it. It doesn't, however, turn out that way - it's a concept used to manipulate us to let go our our responsibility.

Take the example of nuclear weapons - the "government" isn't the one who controls it. it's just humans, like us, who accept responsibility to control them and not misuse them. If humans can do that - then humans can handle firearms, too. It's a matter of accepting discipline and not doing the wrong thing.

Let's not forget that even those who've passed every measure of trust still fail. That the "government" can be trusted isn't a guarantee. Plenty of soldiers fail. Airmen cheat their testing to certify at managing nuclear weapons. Cops shoot innocent citizens. Goes to being human.

When the Crown began to treat citizens unequally is when those in America began to perceive that the "government" wasn't doing things properly - and that was created by the Crown, not the people. There's a difference when a government of the People, by the People, and for the People, created by the People, and founded on inalieanable rights granted by God, goes off the rails and starts persecuting ethic groups and attempts to usurp their rights for itself. It's common with governments founded on tyranny or royalty, but it is categorically NOT insurrection to fire our hirelings and force them from office. A republic is absent that taint cleaning house.

Don't label the People taking back what they created as insurrection. If the public servants can't be trusted to do their jobs right and are actively trying to usurp authority that was never delegated - they are the insurrectionists and terrorists.

Accusing the defenders of our Rights as being criminal is exactly what those who would depose our system want.

 

[jmorris]

As soon as we make owners of cars pass a background check and ban women from driving and take out alcohol while we are at it...

http://www.cnn.com/2015/10/24/us/oklahoma-car-into-crowd/

I don't see how we can tolerate one more death from the above.

With a little more reflection we should just sue Hyundai as they are the makers of the death machine.

Lot of others make them too and they are just as deadly, or even worse.

 

[jmorris]

I find it weird at best for the Federal Government to NOT enforce the laws that are already on the books and want to tighten others.

To the OP, what is a God given right? People have given them to you and people can take them from you, at least to the recourse that you will succumb to.

 

[Highway-08]

IMHO, the National Firearms Act was infringement aplenty on our right to keep and bear arms as per the second amendment. Everything since (and arguably including the NFA) has been unnecessary further infringement on our right to keep and bear arms. We need to control bad acting people, not firearms and explosives.

I'm afraid that we the people have failed to utilize the tools our founding fathers gave us to control our federal government. I can't remember an election with more than 30% turnout. Bummer....

 

[chipcom]

The idea that any right is completely without restriction is about as crazy as they come.

Like I said in another post earlier this week, I want a Minuteman Nuclear missile. I have a bat poop crazy, anti-government, anti-social neighbor of whom I'm terrified, and the only way to be sure he won't hurt my family is for him to know that I'll nuke his house if he does. And the 2nd Amendment guarantees me the right to be as well armed as our military and to use the most effective means of self defense available. (Those are all paraphrases from recent posts from members here.) So, should I start digging my silo? I'm already working on my "Doomsday Device" (a la Dr. Strangelove.)

You guys are insane.

If you are an honest, responsible, law-abiding person who takes the potential danger of such a thing seriously, why would a nuke in your hands be a threat to anyone?

If you don't trust yourself to own a nuke without using it for evil, I applaud your honesty, but question your assumption that the entire population shares your moral failings.

 

[Robert]

I have far more trust in the common people than I do in governments. That being said, the whole nuke argument is nothing more than a thought exercise due to the extreme cost of producing, maintaining and delivering a weapon of any size. Sure there are dirty nukes but even getting your hands on one of those is going to be far more expensive than what the average person could afford.

Hell, how many nukes has the US and Russia lost over the years? Some of which have never been recovered. Yeah, .gov is trustworthy all right...

 

[chipcom]

This is beginning to border on anti-government, insurrection madness.

Before I depart, so as not to be associated with those who would advocate the violent overthrow of our government, I would just like to point out that, regardless of what you think the 2nd amendment means, or might have meant in the 18th century, any attempt by you and your cohorts to use violence to "keep the government in check" is illegal, no matter how stringently you disagree with whatever the government has done or might do.

Personally, I'm particularly disgusted by some political events of late, but I know that I don't have a right to take up arms against my "tyrannical" government.

You know, I sometimes wish that some of you guys would just lose it and step over that line and try to use your assault weapons to "defend your freedom."

Then we would have this arcane, idiotic notion, out in the open, and put to rest once and forever. You do not have the right to mutiny, and those of you "Oath Keepers" - more like oath breakers - who have served in the armed forces know darn well you do not have that right.

Whether you agree with the government or not is not relevant. We have a properly and legally elected government, put there lawfully by the people of this nation. For you to advocate usurping that government is the true threat to freedom and democracy in this country.

So discussing the 2nd amendment in the guise of some sort of of Mel Brooks "Patriot" revolution is pretty well senseless.

I invite you to read the Declaration of Independence, I'm sure you'd have wanted to distance yourself from such crazy, illegal talk against the proper and legal government in those days too.

 

[The Alaskan]

If you are an honest, responsible, law-abiding person who takes the potential danger of such a thing seriously, why would a nuke in your hands be a threat to anyone?

If you don't trust yourself to own a nuke without using it for evil, I applaud your honesty, but question your assumption that the entire population shares your moral failings.

The fact that you actually believe that is the most frightening thing of all.

Sure, I'm an honest, law abiding, person. I can pass a NICS check. I can pass a drug test. I have no history of mental illness. But you don't know me, and none of the above proves I won't push the button.

Do you really want to take that chance? I don't.

And therein lies the problem. You don't know me and I don't know you. I don't think you should be as well armed as the military because I don't trust you not to kill me (or my son in his school). In fact, I'm far more afraid of YOU going on a rampage with your assault weapon (or your howitzer, or your tank, or your Minuteman Missile) than I am of the government sending other men, who I also don't know, to kill me with their assault weapons, their howitzers, and their tanks.

And the reality is that, historically speaking, YOU are FAR more likely to go a rampage than our government is.

 

[chipcom]

Then you better figure out as to who is to decide as to who is safe and who is not?

In a FREE society...when someone's ACTIONS infringe upon the life, liberty or property rights of others, they are unsafe to be left roaming around law-abiding folk unsupervised. As a society we determine the required payment for such crimes...and if/when the criminal pays that debt it "should" mean they are again deemed to be safe to be back among us.

That's the way it would work in a free society...we have not been a free society in a very long time.

 

[chipcom]

The fact that you actually believe that is the most frightening thing of all.

Sure, I'm an honest, law abiding, person. I can pass a NICS check. I can pass a drug test. I have no history of mental illness. But you don't know me, and none of the above proves I won't push the button.

Do you really want to take that chance? I don't.

And therein lies the problem. You don't know me and I don't know you. I don't think you should be as well armed as the military because I don't trust you not to kill me (or my son in his school). In fact, I'm far more afraid of YOU going on a rampage with your assault weapon (or your howitzer, or your tank, or your Minuteman Missile) than I am of the government sending other men, who I also don't know, to kill me with their assault weapons, their howitzers, and their tanks.

And the reality is that, historically speaking, YOU are FAR more likely to go a rampage than our government is.

“He who has overcome his fears will truly be free.”
― Aristotle

Please explain to us why the mere possession of ANYTHING makes you a threat to anyone else as long as you are responsible and law-abiding.

I think I already know your answer, based on the what you wrote...in your mind we are all potential criminals, terrorists or mental cases until certified otherwise by government. We can't be trusted. Right?

I disagree...and so did those who founded this country...this experiment in self-governance by free people. In free societies, we are all deemed to be responsible and law-abiding by default, until our actions prove otherwise. I know that may be a scary proposition to you, since you don't seem to have any trust in your fellow citizens...but that is one of the costs of a free society...they are not the safest, nor the most orderly. Living in a free society requires some level of trust of your fellow citizens and an acceptance of the risk that goes with it.

There are plenty of countries where the government shares your mistrust and are not willing to "take that chance" that free countries do...and this being a free country, nobody is forcing you to live outside of your comfort level...BUT because we ARE a FREE country, you don't have the right to preemptively infringe upon our life, liberty or property because of your mistrust of what we MIGHT do. If you don't feel safe participating in the experiment our founders created, nobody is forcing you to stay or leave...we only ask that if you stay you must overcome your fears and respect our freedom.

Again, I ask you to please state, SPECIFICALLY, what danger you would be to the rest of us should you own a nuke or anything else, if you are truly a responsible, law-abiding citizen.

 

[chipcom]

I have far more trust in the common people than I do in governments. That being said, the whole nuke argument is nothing more than a thought exercise due to the extreme cost of producing, maintaining and delivering a weapon of any size. Sure there are dirty nukes but even getting your hands on one of those is going to be far more expensive than what the average person could afford.

Hell, how many nukes has the US and Russia lost over the years? Some of which have never been recovered. Yeah, .gov is trustworthy all right...

I agree that this whole "nuke" argument is silly from literal standpoint, but it does serve as a good subject for a basic question concerning the underlying principles of free people and free societies: How is a responsible, law-abiding citizen a threat to anyone based on anything they might possess? Possession does not equate to actions and actions are what are required to prove that one is not responsible and/or law-abiding.

The core of the issue here is how much we trust our fellow citizens "out of the box"? Do we think they are responsible and law-abiding until their actions prove otherwise, or do we assume they are all potential criminals, terrorists and mental cases until certified otherwise by some authority? Are we really a free society...or is freedom just another buzz word that has no real meaning because we don't trust our fellow man?

 

[AlexanderA]

This thread has gone off into the realm of the theoretical (private ownership of nuclear missiles, for example). I'm as guilty of this as anyone.

The theory of the 2nd Amendment is that the general population (the militia) is to be as well armed as the standing army. This made sense in the late 18th century, but it probably doesn't make sense today, for a host of practical reasons. Yet, we have to deal with the unchanged language of the Amendment, which after all is part of the constitution.

This has led the courts to indulge in mental gymnastics to reconcile the language of the Amendment with today's realities. Scalia's opinion in the Heller case is the ultimate example of this. He essentially converted a collective, political right of the people to monitor their government (insurrectionism!) into an individual, personal right of self-defense. The fact is, the "system" would not have tolerated a broader interpretation (nor would 5 justices have signed onto it).

Yes, the 2nd Amendment (as originally conceived) has been infringed. But at least we have half a loaf instead of none. If the 2nd Amendment, as written, was up for ratification today, I have no doubt that it would not be ratified. (And BTW, for those advocating a "convention of states" to amend the constitution -- watch out! The 2nd Amendment would not survive such a process.)