The Right (or privilege?) to Bear Arms

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"...or any other lawful purpose" might sound good on the surface, but when the laws are changed to deny you the right to self-defense it amounts to an infringement of your God given rights.

The frog is in the pot, the camel's nose is under the tent.
 
Lets Break the 2nd Ammendment Down Shall We


A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.


Well Regulated Militia - What does that mean? To most it means a reserve army (non standing) that can be called upon in times of emergency. The founders were referring mainly to invasion - which was of much concern then, and also civil disturbances, and natural disasters. It is clear that they meant a disciplined ordered body of private citizens that could be called upon by elected leaders in times of need.

Free State - does that mean state as the collective nation or state as "the several states". That has never been codified.

moving on ....

The right of the people to keep and bear arms, shall not be infringed.

Who will not infringe? Does that mean Congress or does that mean any government at anly level. The mere existance of the BATFE is constructive infringement. The Federal Government doesn't have to do much with all of the 50 states and localities passing numerous laws and restrictions.

Keep and Bear - Where can arms be kept and borne? Some places make it difficult to impossible to keep much less bear.


As we can see, we really have no militia unless you want to count the National Guard which is a militia but it's the ONLY officially sanctioned one. If myself and 50 neighbors decided that we were going to drill, practice, march and swear to defend a territory from those that we thought were enemies we would be arrested. We could call ourselves a militia and be "well regulated". We could hold meetings and do other things. We would probably be regarded as traitors since we were not authorized to form such a group. It is not up to us to decide to defend our streets.

Try bearing some arms in your area and see how far you get. Most states do not allow for open carry of loaded rifles. They stopped at the "Keeping" part. If it weren't for hunting the gunnies would be after rifles and shotguns too.

To sum it all up if you're not keeping and or bearing your arms in the manner in which the state you live in allows, you're not protected under the 2nd. Most states have rewritten the 2nd in some shape form or fashion in their constititution. Some have no such provision at all. It's all about that militia loophole. If the 2nd Read:

the right of the people to keep and bear arms, shall not be infringed.

we wouldn't have any off the issues we have today.

States follow the other ammendments to the letter but were left a way out on this one. We count on speedy trials, no cruel and unsual punishment, right to not self incrminiate, unlawful searches (SCOTUS has screwed us on this in some cases), excessive bail,and civil suits.

Maybe it's time for an ammendment that fixes this one and for all. Bush should have used some of his political capital on that one!
 

USC Title 10, Subtitle A, Part 1, Chapter 13, Section 311


(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
 
What I am suggesting is that the state Supreme Court has taken what is specified in our constitution as a right and turned it into a privilege. It has not done so by a technical application of lawyerly skills that only trained professionals could understand (and of which, therefore, can be the only critics) but by a cramped and less than obvious reading of a fairly simple English sentence.
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So many assault lawyers! So few opportunities to turn rights into privileges!
 
The term "privileges" is surprisingly tricky because there's been a language shift happen over the years.

"Privileges" used to be interlinked to the concept of "rights".

Let me show you what I mean. Here's the basic equal protection clause from the California Constitution:

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A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

Source:
http://leginfo.ca.gov/.const/.article_1
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I'm not sure the exact year that entered the state constitution but it is very old. It wasn't in the original Calif constitution of 1849:

http://www.ss.ca.gov/archives/level3_const1849txt.html

...but if you look at THAT document, obvious civil rights are described as "privileges" several times. As an example:

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Sec. 5. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.
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Compare this with the opening paragraph of the 14th Amendment of 1868, which is probably a bit older than the California equal protection provision:

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Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Finally, let me show you the 1856 US Supreme Court case of Dred Scott, which outlines a series of civil rights (and argues that African-Americans don't have them, but that's immaterial to the use of the term "privileges and immunities"):

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For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. [emphasis added]
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So we've got all sorts of references from 1849 through 1868 (and many more in each direction not mentioned here) in which the word "privileges" is linked to "the traditional civil rights of free Englishmen" or something pretty danged similar. Look at the Dred Scott reference: a right to free travel without pass or passport? Where is that in the Bill Of Rights? It's not. Civil rights were understood to encompass far more than what was written down.

If I were a very suspicious individual, I'd say that the language shift of the word "privilege" is deliberate, a way to negate all sorts of personal rights references from the 19th century.

But that would be one hell of a conspiracy.

Then again...it seems to hve started with the US Supreme Court pretending not to know what the "privileges and immunities" of the 14th Amendment are. A horrible example of this (the worst, in my opinion) is Cruikshank:

http://laws.findlaw.com/us/92/542.html

...but then Williams sucks too:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/170/213.html

...and the infamously twisted Plessy v. Ferguson:

http://www.historycentral.com/documents/PlesseyvsFerguson.html

(Of the three I consider Cruikshank the most evil, with at least half a dozen vying for the #2 spot between 1870 and 1900.)

So it's possible the legal situation changed the language, either deliberately or by simply abusing the term for too long.
 
Thought this might be of interest. How does a founding Right, agreed upon and authorized by the very principals that started our government, become a priviledge?
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Lefties frame the Constitution as a “living breathing” document so that they can insist that it’s meaning changes with time. They then look to legal minds like Ronald Dworkin that say it is the principle behind a law/right that is important not the text or historical intent. This allows them to over look what the Constitution actually “says” and originally intended in favor of focusing on their own interpretation of what they think it should say.
 
I would like to know the etymology of the words used in their original context for our fine government documents and what kind of proof could be presented that our rights should be as so.
 
Right , Priviledge, infringement, acquiesce

Thanks for that interesting link. To add to it these thoughts.

Some states recognize the 2nd Amendment and have similar langauge, but prohibit large numbers of armed men.

If we can all agree that the 2nd Amendment recognized that we the people have right to keep and bear arms without infringement.

Think of this:
So when we apply for a CCW permit that you have to pay for, background check, finger prints, photographs, written and practicle tests than haven't we acquiesced our right for a revocable permit on a grand scale? We made what was a right into a priviledge by signing it away.
Definetly infringed on it.

It would seem that way to me, and I think someday in the future it will seem that way to a judge in court.
 
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Right to keep and bear arms...not quite dead yet.

I live in a township in Michigan. It is not in city limits and for the most part, still zoned as AG (farming). Last Sept, my boy and I were test/tuning his 12GA. The State police show up. One of my neighbors who live about 1/2-3/4 miles across a field and woods called the police. He asked me some routine questions and I showed him my containment backstop. He stated he always get these calls this time of year (people sighting in). No big deal of course, I know I'm not breaking any laws. Again last week the state police showed up. The neighbor said bullets had hit his trees. I asked the officer if he saw any hits, he said "no". I told him that if he's telling me to stop, I'll stop. I will proceed to the township hall and get the whole township ZONED as a no shooting zone (alot of good deer hunting out here). He then stated that I was well within my rights to target practice on my own property (and I told him that is exactly why I moved out here). At this point, I'm wondering why we are even having this discussion. He also stated that if I hit a house or other real property, they'd be knocking on my door. I told him that I was well aware of that. I also told him there is NO way bullets are going through 10ft of sand and clay across a 50yd field, through 100yds of woods on a downward angle from where I shoot, and hitting this idiots trees. I also told him that unless the guy is going to prosocute, he better just leave me alone. I'm sure had I been in California...I'd be in jail right now. He might go as far as to shoot his own house but I don't think it'll match what I've been using for ammo, and I'll insist that the bullet be recovered to be analized for origin. I even asked the officer if he wanted to see my containment and he declined.
Since I was not breaking any law, if this guy continues to harass me...I will take his hindend to court, and I will make it stick (I know a real nasty attorney).
 
This allows them to over look what the Constitution actually “says” and originally intended in favor of focusing on their own interpretation of what they think it should say.
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Which is exactly as it should be in a modern society: I just expected better "minds".

You want your interpretation? "Vote."

"There's your power."

"Originally intended?" As if you know...
 
I will proceed to the township hall and get the whole township ZONED as a no shooting zone (alot of good deer hunting out here).
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"Bull****." No you won't. This is a ridiculous and empty threat. In addition, if it is a "township", you have NO IDEA what legalities my be in place. Saying you are "outside of city limits" merely indicates a form of ignorance.

He then stated that I was well within my rights to target practice on my own property
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Presuming not a single pellet of shot -- for any reason -- left your property. Dude: this is a dangerous road.

Since I was not breaking any law, if this guy continues to harass me...I will take his hindend to court, and I will make it stick
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"Fear."

I'm looking forward to you trying such. You just didn't move far enough into the country: deal with it.

Go to a range, or prove you're not causing "harm." If you are pressed, THIS is the "real" situation.

Ad hoc rhetoric espoused by "snivel-dom" annoys me.
 
Since I was not breaking any law, if this guy continues to harass me...I will take his hindend to court, and I will make it stick (I know a real nasty attorney).
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And what are you going to sue him for? Private nuisance - You lose that.

How about give the guy $1000 and tell him to leave you alone when you shoot. That way you'll spend less money and get a desirable result.

a right to free travel without pass or passport? Where is that in the Bill Of Rights? It's not.
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The term privileges and immunities means different things in different places of the constitution.

Free travel is a Art IV Section 2 P and I protects the temporary traveller => free passage b/t states with no passport.
The 14th amend P and I means a state must treat all individuals the same.
 
...but if you look at THAT document, obvious civil rights are described as "privileges" several times. As an example:

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Sec. 5. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.
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United States Constitution, Article 1, Section 9, Clause 2:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

United States Constitution, Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Notice the difference between Right and Privilege? A Privilege can be suspended, or abolished, while a Right cannot under any circumstance. Right has never equated Privilege, nor shall it ever, (ComLog, {Common Logic}, not withstanding). A Right can never be recended, merely opressed. A Privilege is a state-granted behaviour or belief that may be restricted (morally) at any time. Marijuana is a Privilege, Self-Defense is a Natural Born Right.
 
K_Semler: I disagree. In MODERN terms sure, you're right.

But there's no way to look at Dred Scott any other way than that "civil rights" are clearly being described with the term "privileges and immunities".

The text of Scott is here:

http://laws.findlaw.com/us/60/393.html

Read it. The complete term "privileges and immunities" appears over 30 times and is extensively defined in the language of 1856.

Next, John Bingham (primary author of the 14th Amendment) specifically said he borrowed that term from Dred Scott in order to turn it around, constitutionally speaking. In other words, once the US Supreme Court declared that blacks didn't have civil rights, the only way to overturn that is with a constitutional amendment, so he turned the words of that case back on itself.

Except that subsequent extremely racist decisions of the US Supremes through the late 19th century gutted the 14A. It was rebuilt from the ground up in the 20th century but "crooked", we didn't get the full effect back.

IF the opening paragraph of the 14A was read correctly in modern terminology, it would look like this:

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Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the basic civil rights as outlined in the bill of rights and then some, to include the traditional rights of free citizens of a Republic of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Boldface is used to mark editing in line with the definitions in Dred Scott.]
-----

If the US Supremes had read it that way in the 1875 Cruikshank case, they would have held that local government employees such as Mr. Cruikshank and most of his accomplices could not strip blacks of their arms and then punish them for excercizing their 1st amendment rights and 14th amendment right to vote with three days of rape, arson, murder and lynchings.

In short: you've got your head wrapped around this clear-cut distinction between "privileges" and "rights" in modern usage. You use one example to support your position but sorry, rights CAN be stripped in extremis and that's always been the case. You're ignoring tons of evidence otherwise, such as the entire Dred Scott case, the 14th Amendment (esp. when combined with Bingham's writings) and more.
 
Rather than posturing, take a look at the period documents.

If I'm right (pardon the pun), we've lost a ton of ground just through a language shift...one that may be deliberate as it was all too convenient for the Supreme Court's purposes circa 1870 - 1900.
 
It's all very simple. Some people think that there are those that are too dumb, irresponsible, and or unscrupulous to handle firearms.
That is why we have all these laws.
So we all pay the price en masse and gradually see our rights eroded over time.
As with anything.
 
Which is exactly as it should be in a modern society: I just expected better "minds".

You want your interpretation? "Vote."

"There's your power."

"Originally intended?" As if you know...
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If you follow the Dworkin legal philosophy then your vote is meaningless since the power to “create” law is taken out of the hands of the legislature and placed in the hands of judges that can re-write legislated law or completely write entirely new law simply by re-interpreting the “principal” behind a right or law. As for original intent, that is found by looking at the exact text and drawing the founders meaning from how they used the text in comparison with other historical documents (e.g. the federalist papers). Look up Originalist and Strict Constructionist legal philosophy for more on “original intent.”

If the Constitution is framed as a continually changing document then past precedent becomes meaningless as there is never any assurance that the past interpretation of the Constitution, when the precedent was established, is the same as when it is later re-visited. The easiest way for the government to oppress its people would be to use the changing times to strip the people of the freedoms established long before. We saw this in New Orleans when the (local) government went door-to-door confiscating firearms. Equally disturbing was the way they justified this based on the conditions at the time. Personally I would never follow a legal philosophy that allows this.
 
Some how, some where along the course of history we have been led to believe that we, here in the United States of America, are living in a DEMOCRATIC state. Never has been, never will be. Our form of government is a REPUBLICAN form of government. We "vote" for a representative to hopefully administer and regulate laws that best "represent" our wishes. The way our "representatives" can neglect our wishes and even force laws upon us that are contrary to "our" wishes, is to appoint to the judicial branch the people that will change and enforce laws that do NOT represent the wishes of the people. If "we" vote some one out of office because of culpable legistration against our wishes, it is too late, the deed has already been done! Our founding fathers recognized the opportunity for this to evolve and wrote in certain, inalienable Rights. This "Bill of Rights" was supposed to supersede the authority of any individual branch of the federal government and require a two thirds majority of the states to amend. The states themselves could not directly alter the amendments, only approve or deny. At the time the Constitution was written, it took a minimum of six years to amend or add an amendment, which gave the constituents the opportunity to address the representatives on their position. If the representative's position was contrary to the popular majority, there would be a change in representation.
 
The 2nd amendment, like the rest of the bill of rights, is only a restriction upon the federal government.

The 14th amendment applies the 2nd to the states. You can apply it through the current Due Process jurisprudence, or you can apply it through Privileges and Immunities. The 14th was custom tailored to prevent the States from disarming freed slaves. This is consistent with the original intent and the wording of the amendment.

The States initially got around this by using private actors to harrass black people (the original Klan and similar insurgent groups). An attempt at federal prosecution for this behavior resulted in Kruikshank v US. Despite not applying against private parties, Kruikshank was still entirely consistent with the 14th amendment applying against the state governments.

The final blow was struck in the Slaughterhouse cases, which eviscerated the concept of priveliges and immunities at the state level. This concept has been brought back piecemeal via the Due Process Clause. So far they have incorporated the 1st, 4th, 5th, 6th, 7th, 8th and (via the 9th) private sexual conduct and abortion.

I think the supreme court has been hesistant to act because it realizes that once it speaks upon the meaning of the 2nd, gun control will be drastically curtailed, and this was probably seen (especially in the 60s-70s) as an intolerable outcome.
 
Beerslurpy: you've got the Cruikshank case *seriously* wrong.

Mr. Cruikshank was a cop, as were a lot of his co-defendants. He was a state-government actor and the 14th Amendment damned well SHOULD have applied to him and most of the defendants.

The fact is, this was in my opinion the single most racist US Supreme Court decision in history, worse than Dred Scott, worse than Plessy. It caused all those lynchings for generations.

People have tried to put a happy face on that disasterous case but it doesn't wash.
 
No, I looked up the Colfax Massacre and it was a gang of angry whites, not a bunch of police officers. Cruikshank may or may not have been a sheriff's deputy, but I am unable to verify this either way. In any case, the whites were rioting against the state militia, so I doubt his actions were in an official capacity.

If youre going to accuse me of being seriously wrong, you could perhaps provide me with a reference to these facts? There are other Cruikshank cases, are you sure you dont have it confused?

And are you actually arguing that the 14th amendment binds private parties as well as the States? The Court has held that this is not so countless times.

edit: about the Colfax Massacre, one of the underlying arguments was over who won the county sheriff's election. Just before the riots (indeed, causing them) the Republican governor of LA declared the black guy to be the winner of the election for Sheriff, so the rioting guys couldnt have been government actors unless they somehow got that decision reversed. One of the ringleaders was the white candidate for sheriff (Nash) who was not at that time officially an LEO, nor was he acting to enforce the law (rather, he was leading a bloody riot).
 
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