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The 2A is NOT an individual right!

Discussion in 'Legal' started by LkWinnipesaukee, Jan 27, 2007.

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  1. Green Lantern

    Green Lantern Member

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    I think it's more fun to aruge the "militia" point, but only if it's a male age 17-45. Especually if he's also a pacifist! :evil:
     
  2. shield20

    shield20 Member

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    Now having our own gov't actually agree is all well and good, but 8 years ago many in office (Clinton, Reno, their DOJ etc. :barf: ) didn't agree. SOOO...

    Start here, with the Virginia BOR:
    1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

    The Penn. Constitution:
    WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings..

    Then the Pennsylvania Declaration of Rights:
    XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

    Then the Massachusettes Consitution:

    All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

    George Mason's Comments on the Constitution:
    There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law.

    And his recommendations:
    17. That the People have a Right to keep and to bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free State; that Standing Armies in Time of Peace are dangerous to Liberty, and therefore ought to be avoided as far as the Circumstances and Protection of the Community will admit; and that in all Cases, the military should be under strict Subordination to, and governed by the Civil Power.

    The New York Ratifying convention:
    That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;

    The North Carolina Ratifying Convention:
    In Convention, August 1, 1788.
    Resolved, That a Declaration of Rights, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People, together with Amendments to the most ambiguous and exceptional Parts of the said Constitution of Government, ought to be laid before Congress, and the Convention of the States that shall or may be called for the Purpose of Amending the said Constitution, for their consideration, previous to the Ratification of the Constitution aforesaid, on the part of the State of North Carolina.

    That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state.

    Ratification of the Constitution by the State of New Hampshire
    June 21, 1788.
    Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

    The Virginia Convention:
    That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following;

    17th That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.

    **************

    Then visit what the author of the BOR James Madison (from Virginia) said:
    "Supposing a bill of rights to be proper ... I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. [i.e. HE HAD NO DOUBTS about arming the people!!!!]

    Because in his intro on a bill of rights to the 1st Congress (which obviously took the state recommendations and intent into consideration):

    "First, That there be prefixed to the constitution a declaration, that all power is originally rested in, and consequently derived from, the people."

    Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

    The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
    ...
    The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

    No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.
    ...
    [Note that he intended these to go INTO the constitution under Article 1 section 9 - The area LIMITING Congress' power (and NOT with the militia clauses!)

    ***
    Point out what the House Commitee of 11 Report:
    ART. 1, SEC. 9 — Between PAR. 2 and 3 insert,

    "No religion...

    "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 person religiously scrupulous shall be compelled to bear arms."


    Then you can mention how in the debates over the Bill Of Rights, these things were said:

    Mr. Gerry.--This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.
    ...
    Mr. Scott objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms,

    Then you can mention how the 1st Senate, when presented with the HR version: indicated its intent that the right be an individual one, for private purposes, by rejecting a change to the amendment which would have limited the keeping and bearing of arms by adding "For the common defense".


    Also BE SURE to point out that the 2nd amendment doesn't GRANT anything, it PROTECTS from infringment an inalienable right. That right is ours already, natural, inherent, inalienable.
     
    Last edited: Jan 28, 2007
  3. Warren

    Warren Member

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    I'm just amazed at how effective we gun nuts have been in distorting the very obvious plaintive cry of the Founders to be disarmed by the government into a "right" that people can own guns.

    I'm wondering how long we can keep this charade going.
     
    Last edited: Jan 28, 2007
  4. Optical Serenity

    Optical Serenity Member

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    Great thread. I get this all the time from anti-gunners as well. :)
     
  5. Tim Burke

    Tim Burke Member

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    The Bill of Rights was intended to limit the powers of the Federal government, and protect the power of the State governments and the rights of the people. The awkward phrasing comes from addressing both State powers and the rights of the people in the same sentence. The subordinate clause acknowledges that the States remain free, and implies that they have the authority to raise their own militias. The main clause acknowledges the right of the people to keep and bear arms, and explicitly prohibits the government from infringing upon it.
     
  6. ilcylic

    ilcylic Member

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    "Mock government".

    I mock the government all the time!
     
  7. glennv

    glennv Member

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    So forget the 2nd even exists. Every state has some version of this right and all but two have had their state surpreme courts rule that it is an individual right not collective.
     
  8. Sodbuster

    Sodbuster Member

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    The United States Code at one time specified that all honorably discharged veterans (male and female) were members of the militia until age 65. It also made provisions for people to volunteer. I don't see those references anymore, which seems to indicate that Congress can willynilly modify the US Code. Getting back to the framers and the Bill of Rights, it would seem that INTENT would be the critical factor in whether the 2nd amendment is an individual or collective right. They obviously intended it to be an individual one. Who said when asked, the the militia were, with the exception of a few public officials, the whole of the people?
     
  9. Tim Burke

    Tim Burke Member

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    You are probably thinking of George Mason, who is frequently cited as saying:
    "I ask, who are the militia? They consist of now of the whole people, except a few public officers."
    The next line is usually omitted:
    "But I cannot say who will be the militia of the future day."
    There was also Tenche Coxe, who wrote in the Pennsylnania Gazette:
    "Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
     
  10. ssr

    ssr Member

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    I cannot believe how niave and short-sighted the people are who claim the 2nd ammendment is no longer useful and should be done away with, and is a collective right anyway.

    Rights are something individuals have. It is something the government cannot assume power over. The 2nd Ammendment has the exact same meaning now as it did years ago.

    Right now the US is the lone superpower and has the most powerful military in the world. Noone is going to invade the US at this point in history. But is the US going to remain the lone superpower and have the most powerful military for the rest of time? Of course not. We will decline in power at some point and someone else will rise.

    But even now, Iraq should show us something. Even we, with the most powerful military in history, cannot stay in (occupy) Iraq indefinitely. We cannot sustain the human, emotional and financial costs long-term. Because when it somes to occupying a country it comes down to individual soldiers on the ground with small arms. And they can be fought with small arms, among other weapons.

    If at some point our army is wiped out by another, which can happen, we as a country will be left naked, "defenseless". But if at that time, the other army attempted to occupy US soil, a militia would arise and fight. It has meaning today, just as it did many, many years ago. The 2nd ammendment is about the longterm survival of the US as a country. And that is what is important to the republic, not every single persons relative so-called "safety".

    To think that the US will remain the power forever and the 2nd ammendment is out-dated, simply because people cannot think outside of the box of our current world situation, is very short-sighted, niave and foolish.
     
    Last edited: Jan 30, 2007
  11. another okie

    another okie Member

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    There is no such thing as a "collective" right, at least not in the way people thought of rights in 1788. Collectives have powers or duties or responsibilities, but not rights. There can be an individual right which is expressed as a part of a group, such as jury service, militia service, or abolishing the government. But the right belongs to the individual.

    In modern times people use the word "right" in a loose way that would include what people in 1788 called powers.

    Some of the best books about rights, which take text and context seriously but still are very modern, are by Akhil Amar Reed, a law school professor. I recommend them.
     
  12. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    Check out http://www.guncite.com/ for an excellent resource on the Second Amendment. If you read all of the material at that site, you will be well equipped to argue either the individual or collective rights arguments (and you have to understand the other side's arguments before you can start putting holes in it.)
     
  13. hugh damright

    hugh damright Member

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    In 1776 it was declared that the people of each State have a collective right to alter or to abolish goverment. I believe that this collective right of self-government is what the American experiment is all about.

    When people say that there are no collective rights, that there are only collective "powers", I like to ask them ... if the US is attacked, do we have a power to fight back, but no right to fight back? It makes no sense to me. I reckon there is a collective right to self-defense, and a collective right to self-government, and a collective right to defend free government ... I reckon that the people of a free State have a collective right to form a militia to secure their free State.

    If I remember correctly, Amar's view is that the USBOR did not originally regard individual rights ... he said that the First Amendment declares an individual right and that confuses people. Amar's view, like my own, is that the USBOR originally declared principles of, or limits upon, government. I believe that Amar calls these "political rights" which are different than "individual rights". But Amar accepts that the 14th "Amendment" turned the USBOR into what you libertarians today see it as, and this is where he and I part. I believe the USBOR means what it originally meant, or it means nothing.
     
  14. Master Blaster

    Master Blaster Member

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    Ask them where in the constitution it says that the murder victim has the right to live and breathe.

    Surely the people referred to in the other parts of the constitution, where its says we have the right to life liberty and the pursuit of happiness, hence the individual has the right to live and breathe and not have this taken aways by some one else or by the government at its whim, is not referring to collective rights, and the phrase the people is used there as well.

    The Bill of rights was written to ensure that certain individual rights were not taken away by the government.

    Its author James Madison had put the same clause in the Virginia constitution.
    He insisted that it be part of the US constitution so essential personnal liberties which men were endowed with from Birth (by their creator) could not be taken away or infringed by the government. The fact that it is the second amendment emphasises it importance as an individual right.
     
  15. Master Blaster

    Master Blaster Member

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    Ask them where in the constitution it says that the murder victim has the right to live and breathe.

    Surely the people referred to in the other parts of the constitution, where its says we have the right to life liberty and the pursuit of happiness, hence the individual has the right to live and breathe and not have this taken aways by some one else or by the government at its whim, is not referring to collective rights, and the phrase the people is used there as well.

    The Bill of rights was written to ensure that certain individual rights were not taken away by the government.

    Its author James Madison had put the same clause in the Virginia constitution.
    He insisted that it be part of the US constitution so essential personnal liberties which men were endowed with from Birth (by their creator) could not be taken away or infringed by the government. The fact that it is the second amendment emphasises its importance as an individual right.
     
  16. shield20

    shield20 Member

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    Hugh,

    Your definition of a collective right is no different then the definition of an individual right - the group "we, the people", is the same as the individuals making up that group. Yes the people have the right to bear arms, I am one of the people, so I have that right.

    The "collective rights" theory is based on a ridiculous misinterpretation of the Second Amendment in protecting only the historical right of States to form well regulated militias, which is obviously totally contrary to all intent displayed by the Founders' actions, histories, experiences, debates AND of course THEIR WORDS.

    MY right is dependent on my being one of the people, NOT on my being a member of any type of group militia - regulated or otherwise. Therefore the right is mine - and is inherent, inalienable, etc.
     
  17. another okie

    another okie Member

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    When you say 1776 I assume you are referring to the Declaration of Independence. I guess first we should acknowledge that the Declaration has no legal status in our system of government.

    More importantly, it does say the "people" have the right to alter or abolish a bad government. It doesn't say "the people as a group." I guess you can read it that way, but I think it means each individual person has that right.

    Here's why I think that: if only one person believed the government was a tyranny, that one person would still have the right to try to alter or abolish the government. To accomplish it may take a group, which gives the group the power to do it, but the right belongs to each individual person in the group.

    I suggest you reread Amar, because this is the very point he is trying to make about some of the rights in the Bill of Rights. They belong to individuals even though you must be in a group to carry them out. For instance, take jury duty and militia duty. You can't be a jury or a militia of one, but each individual in the jury or militia has an individual right to be there.
     
  18. hugh damright

    hugh damright Member

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    Sort of ... the Preamble says that we the people established and ordained a constitution, but there is no individual right to do such a thing. Maybe in a monarchy an individual (the King) would have a (divine) right to establish and ordain a Constitution, but in a free State it is a collective right of the people. A collective right is different from an individual right.

    Just because the Second Amendment says "the people" does not mean that the Second Amendment protects your RKBA. I don't think it's a question of whether or not you have that right ... I think it's a question of what federal protection there is of that right, and whether this federal protection comes from the Second Amendment. The way I understand it, there is federal protection of your RKBA, but it does not come from the Second Amendment.


    I don't see what's contrary about it. The States were to maintain control of the militia so that they might remain free States. The Federalist Papers explained that there was no reason to fear that the US might take over the militia, and that the States would remain in control. I am not seeing how the Federalist Papers are contrary to our founding.


    Again, the question is not whether or not the right exists, the question is about the federal protection of a right, and if any such protection comes from the Second Amendment.


    Of course an individual has a right to try to influence government, but no individual has a right to destroy the government of your State and erect a new government, that is a collective right of the people of your State.
     
  19. ssr

    ssr Member

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    Establishing a government is not a right. It is not a right to give up freedom and let a government assume powers. Establishing a government is a choice people enter into to alter their free natural state, hopefully for the better. Rights are what the people possess over which the government cannot assume power.

    People are free to form government if they wish, but it is not a right, individual or collective.
     
  20. shield20

    shield20 Member

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    But we are NOT talking about creating a government, or overthrowing it, we are talking about a natural right of self defense, one that is inherent to ALL people, individually, the moment they are born. Each and everyone of us, collectively as 'we, the people', AND INDIVIDUALLY as 'the people' enjoys such rights.



    Again, that collective right view is contrary because MY right, YOUR right etc, to keep and bear arms is NOT dependent on a milita, whether it is regulated by the federal government, or controlled by the States. It is, like all natural inherent inalienable rights, dependent on us being people, and further in this case on being citizens. It also is NOT dependent on the 2nd amendment, other then w/o its protection those who don't agree with that RIGHT would otherwise try to take that right away.

    Hamilton wasn't concerned about federal control over the militia - including the Union regulating it, because he wanted a strong central government! He didn't care about a BOR, because he knew (or thought), like many others, that in listing certain rights that were so obvious and inherent, it would leave others not mentioned open to infringment. The anti-federalists, and also another Federalist author Madison, wanted a Bill of Rights to list rights inherent in the people, to keep the federal government from usurping those rights.

    "I believe that the great mass of the people who opposed it [the recent ratified Constitution], disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary."


    As it is the purpose of all the clauses that make up the BOR, to restrict the Congress from encroaching on ANY of the rights of the people, though it shouldn't be necessary because only specific powers were given in the constitution. Those rights, of all people, NOT listed were covered by the 9th: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


    It is EXACTLY the intent of the 2nd to protect my right, your right, ALL the individual people's right to keep and bear arms.
     
    Last edited: Jan 28, 2007
  21. k_dawg

    k_dawg Member

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    It is because 99% of all elected officials and appointed judges view themselves differently than they view the masses.

    Put bluntly: they don't WANT us to have the right.
     
  22. ssr

    ssr Member

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    And that's the problem with the BOR. After all this time, people nowadays generally have the assumption that if it is not specifically stated in the BOR, that it is under the realm of government control, rather than the assumption being that it is not under government control until the people give up that freedom.

    And now, even the BOR does not even protect those rights. Both major parties just pick which ones they will more slowly erode, all blessed by the Supreme Court. (Not sure why people place so much weight on SC decisions anyway. If whatever they decide on any given controversial subject depends upon the makeup of the court at the time, their decisions are BS.)
     
  23. shield20

    shield20 Member

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    Gary M. Galles:

    One of the most insightful of the Antifederalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention was exceeding its instructions. Yates wrote as Brutus in the debates over the Constitution. Given his experience as a judge, his claim that the Supreme Court would become a source of almost unlimited federal over-reaching was particularly insightful.

    Brutus asserted that the Supreme Court envisioned under the Constitution would become a source of massive abuse because they were beyond the control "both of the people and the legislature," and not subject to being "corrected by any power above them." As a result, he objected to the fact that its provisions justifying the removal of judges didn't include making rulings that went beyond their constitutional authority, which would lead to judicial tyranny.

    Brutus argued that when constitutional grounds for making rulings were absent, the Court would create grounds "by their own decisions." He thought that the power it would command would be so irresistible that the judiciary would use it to make law, manipulating the meanings of arguably vague clauses to justify it.

    The Supreme Court would interpret the Constitution according to its alleged "spirit", rather than being restricted to just the "letter" of its written words (as the doctrine of enumerated rights, spelled out in the Tenth Amendment, would require).

    Further, rulings derived from whatever the court decided its spirit was would effectively "have the force of law," due to the absence of constitutional means to "control their adjudications" and "correct their errors". This constitutional failing would compound over time in a "silent and imperceptible manner", through precedents that built on one another.

    Expanded judicial power would empower justices to shape the federal government however they desired, because the Supreme Court's constitutional interpretations would control the effective power vested in government and its different branches. That would hand the Supreme Court ever-increasing power, in direct contradiction to Alexander Hamilton's argument in Federalist 78 that the Supreme Court would be "the least dangerous branch."

    Brutus predicted that the Supreme Court would adopt "very liberal" principles of interpreting the Constitution. He argued that there had never in history been a court with such power and with so few checks upon it, giving the Supreme Court "immense powers" that were not only unprecedented, but perilous for a nation founded on the principle of consent of the governed. Given the extent to which citizens' power to effectively withhold their consent from federal actions has been eviscerated, it is hard to argue with Brutus's conclusion.

    He further warned that the new government would not be restricted in its taxing power, and that the legislatures war power was highly dangerous: "the power in the federal legislative, to raise and support armies at pleasure, as well in peace as in war, and their controul over the militia, tend, not only to a consolidation of the government, but the destruction of liberty."

    http://www.mises.org/story/2335
     
  24. Rebeldon

    Rebeldon Member

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    If the Second Amendment were about the right to own and read books, they would have written it this way...

    A well educated intelligencia, being necessary for the prosperity of a free state, the right of the people to keep and read books shall not be infringed.

    Would the Left in this country be arguing that only college professors should own books?
     
  25. ssr

    ssr Member

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    shield20, that post is so true.
     
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