The Second Amendment doesn't guarantee the right to get arms, true or false? (Moved from Legal)

[2agunner]

You are treading some dangerous ground referring to the right to keep and bear arms as a privilege. Privileges can be restricted or withdrawn, as with a driver's license. Not so inherent rights acknowledged and protected by our organic law.

Trolls gonna troll.

Oh hell no. Let me make this very clear. 2A is a right not a privilege. I was referring to what the gun salesman said and what he probably meant. I don't care what he said because I know 2A is a right. So, chill on calling me a troll.

Things are starting to go south as can happen on forums sometimes. So, mods feel free shut down thread because I have never stated that I believe 2A is a privilege because it's not.

 

[theotherwaldo]

The entire point of the Bill of Rights is the enumeration of rights that the federal government is forbidden to tamper with.

 

[ilbob]

The Second Amendment only specifies the right to keep and bear arms. There's no mention of the right to acquire arms. In the absence of specifically mentioning the right to get arms, is it a right or something that should be regulated by the government/ATF? In other words, can or should the government legally regulate if law abiding citizens get guns or certain guns or gun parts? We know certain firearms/weapons can't be legally owned by individuals or things can change over time. We know the government can legally or illegally do things just like an individual can.
I don't see how you can "keep and bear" something you cannot acquire.

What was the intent of the Second Amendment at the time it was written, codified and passed as law?
I think you would have to ask the guy that wrote it what he meant, and the guys that voted on sending it to the states, and the state legislatures that passed it.

How can we be sure what the intent was or is of our founding fathers?
We can't be sure of the exact intent because so many of the writings from the time are contradictory. It is pretty clear though that for the most part, it was understood that people as people had the right to keep and bear arms.

Why wasn't other supporting documents or writings specifically on the Second Amendment by our founding fathers include more words explicitly stated in the Second Amendment to try to attempt to avoid lawsuits. Not that the Second Amendment is about lawsuits but in reality that's where legal determinations are made. Was the Second Amendment broadly or narrowly focused?
I think they expected legislatures and judges and presidents to be honorable, and for the most part that has turned out to not be the case.

In some ways the Second Amendment might be too short and concise that leaves it open for people to interpret or debate the intent and have varying opinions. Perhaps, more wasn't written because it would have had the opposite effect because it would be picked apart and therefore more confusion would ensue.
I doubt anyone who wrote the bill of rights thought any of it would ever be necessary, because it was obvious.

Who are all the gun laws protecting? The government, other countries, law abiding citizens, criminals or a all of the above?
No one is protected by most gun laws.

For the legal scholars or very opinionated, what's your thoughts on the Second Amendment regarding getting arms not just keeping and bearing arms? It's difficult enough to just keep what guns or rights we already have because it's constantly being chipped away.
All of our rights have been chipped away. it is the nature of ever increasing government.

P.S. Please keep things cordial. I'm as passionate about guns and the Second Amendment as anyone that believes in "freedom" which can be a misnomer in itself but you know what I'm saying. I want this to be an educational dialogue. In other words, I don't want the mods to shut this thread down because it goes south because adults can't behave themselves.

Freedom requires that the people want to be free and in many cases that appears to not be the truth. We have been willing to give up all kinds of freedoms in exchange for promises from various governmental entities.

ETA: I don't know what the specifics are, but I just received an email saying that a US court had to rule that wearing a MAGA hat was covered by free speech. We have come a long way from "it is obviously a right" to it is only a right if you go to court.

 

[shafter]

The militia in those days were pretty organized. They drilled together far more frequently than most shooters do today. Their shortcoming against the militia were very short terms of service when called up, resupply, operating in conjunction with a larger force made up of similar units, and fighting over who was in overall command.

The Founders had no issue with private ownership of firearms I'm sure but the 2nd Amendment was about the militia and people don't understand how that system worked.

 

[westernrover]

To be semantically correct, the 2A is not a right. It is the prohibition of the infringement of a right. The 2A does not establish the right, but acknowledges it and then prohibits its infringement.

Let me make sure I'm following you. In other words, there's no need to mention the right to acquire arms. A right can't be given or taken away.

You're trying to say too much. Of course rights can be taken away. That's why the 2A prohibits taking this one. An infringement on acquiring arms inherently infringes on the right to bear them. Now what constitutes an infringement could be debated. Nobody is proposing that anyone has the right to guns provided to them by someone else free of cost. It's well established that guns can be taxed as well as any other good. Reasonable taxes are not an infringement. Something that made arms impossible to acquire or produce for oneself would be an infringement. In order to avoid infringement, there has to be a balance in regulation. Presently, we put up with most sales being regulated through FFL holders because the regulatory burden is considered reasonable by many, and there are other lawful means to produce firearms for ourselves.

2A implies one can get guns that can't be taken away or infringed. In other words, 2A can't prohibit getting guns even though in reality there's many guns and gun related items that we can't buy, acquire, or possess..

There are unlawful infringements that violate the 2A. Those infringements don't define or explain what the 2A actually means. We can't properly interpret the 2A using a history of violations of it. The NFA of '34 and GCA of '68 are blatant, unlawful infringements of 2A. They need to be overturned, but like other egregious civil rights violations in our nation's history, not everybody agrees that change is needed and the needed changes do not happen immediately.

So, the gun salesman is saying a person doesn't have the a right to get guns to begin with because it's not a right but a privilege provided by the government

Anyone who believes that is a fool.

OR said another way a right doesn't exist therefore acquiring is not implied and can be infringed. Is that correct?

The Constitution clearly acknowledges the existence of the right.

 

[Old Dog]

Freedom requires that the people want to be free and in many cases that appears to not be the truth. We have been willing to give up all kinds of freedoms in exchange for promises from various governmental entities.

Your observation is spot-on.

We have raised the past three generations without raising their collective consciousness on this nation's history, the philosophies and ideals of our founding fathers, and, as obvious, an understanding of the meaning and intent of our Constitution and the Bill of Rights.

We have raised successive "me generations," content to live on credit so long as they have a trendy automobile, truck, cell phone, access to Facebook, Tik-Tok,Instagram, and the ability to fund whatever it is they do for entertainment (which seems to include mostly horrible "music," crass and vulgar motion pictures/television, but yet not much in the way of enjoying the natural beauty of this country, fishing, hunting and outdoor physical activities). Rather than desiring more freedom, we now seem to prefer the ability to obtain food and consumer goods without having to actually get our lazy butts out of our cars or homes, have lost the ability to communicate in person, face-to-face, and with the concept of civil discourse thrown out the window. Teamwork? Is that a Zoom thing? The idea of self-reliance and self-defense, sustaining one's self and family without government assistance, and most importantly, the concept of self-determination all seem lost. Narcissism is heavily promoted (watch any "reality" TV?) and the cult of celebrity worship reigns supreme. We care more about how much our professional athletes, actors and musicians earn than our teachers, cops and firemen.

We have ceded back the 1st and 4th Amendments to our rulers, willingly. That so many seem surprised that the 2nd Amendment remains under attack is troubling.

 

[ilbob]

The militia in those days were pretty organized. They drilled together far more frequently than most shooters do today. Their shortcoming against the militia were very short terms of service when called up, resupply, operating in conjunction with a larger force made up of similar units, and fighting over who was in overall command.

The Founders had no issue with private ownership of firearms I'm sure but the 2nd Amendment was about the militia and people don't understand how that system worked.

I suspect the 2A was about both the militia and the right of people in general to keep and bear.

 

[Pudge]

The militia in those days were pretty organized. They drilled together far more frequently than most shooters do today. Their shortcoming against the militia were very short terms of service when called up, resupply, operating in conjunction with a larger force made up of similar units, and fighting over who was in overall command.

The Founders had no issue with private ownership of firearms I'm sure but the 2nd Amendment was about the militia and people don't understand how that system worked.

The right of the people to peaceably assemble, keep and bear arms, be secure in their persons, houses and effects... It is a repeated use of a term in a singular document, it refers to the same entity, the people.

 

[AlexanderA]

The entire point of the Bill of Rights is the enumeration of rights that the federal government is forbidden to tamper with.

And, now, states as well, thanks to 14th Amendment "incorporation."

But the thing is, we can enumerate a right, but the devil is still in the details. Every listed right is circumscribed in some way. This is the gray area where the courts have scope.

 

[theotherwaldo]

And, now, states as well, thanks to 14th Amendment "incorporation."

But the thing is, we can enumerate a right, but the devil is still in the details. Every listed right is circumscribed in some way. This is the gray area where the courts have scope.

The courts may meddle with these inalienable rights at the risk of undermining the right of the government to exist.
The Constitution and the Bill of Rights are a contract between the nation's people and the nation's government that establishes the conditions that allow the existence of the government.
If any branch of the government breaks this contract then the government loses all authority over the people... .

 

[AlexanderA]

The militia in those days were pretty organized. They drilled together far more frequently than most shooters do today. Their shortcoming against the militia were very short terms of service when called up, resupply, operating in conjunction with a larger force made up of similar units, and fighting over who was in overall command.

The Founders had no issue with private ownership of firearms I'm sure but the 2nd Amendment was about the militia and people don't understand how that system worked.

Indeed. The concept of the militia is central to the understanding of the 2nd Amendment. As you say, the Founders didn't care about the general, private ownership of firearms. That was a given in 1791. What they did care about was the civic right of the militia to be armed.

We have to look at what the militia was like in 1791. There was a "general" (universal) militia in every state, in which, theoretically, every free male citizen of military age was enrolled. They were supposed to have periodic (annual?) musters at their county seats, bring their own weapons, have their weapons and equipment inspected, and undergo some rudimentary military training. But this never really worked out in practice. The musters, on the rare occasions when they were actually held, quickly deteriorated into drunken parties on the courthouse lawn. The fact is, the early Americans were too busy with their private lives, and in the absence of an immediate threat, they didn't take their militia obligation seriously.

So the militia quickly devolved from the "general" militia to a self-selected "volunteer" militia. These were basically military hobbyists who formed themselves into local units, and then applied for state sanction. These volunteer units were supplied arms and equipment from the state governments, which in turn were allocated arms and equipment from the National Armories and other federal installations, according to a set formula.

The War of 1812 was a mess, fought by a disorganized mixture of general and volunteer militia, along with small numbers of Regulars. Thereafter, the general militia was abandoned. The Mexican War and the Civil War were mostly fought by units of volunteers.

The point is, the volunteer militia was centrally supplied. The members no longer had to provide their own weapons. The 2nd Amendment's direct application to this militia therefore became moot. By, say, 1820, the 2nd Amendment was a dead letter as regards its original purpose, which was the private arming of the militia. And then it sat dormant until it was resurrected in the 20th century as the foundation of a private, individual right.

But the big mistake was Justice Scalia's treatment of the Militia Clause as a nullity, in the Heller decision. What he should have done is recognize the idea of a universal militia (even though it didn't exist in practice), and then base the right to private arms on putative (theoretical) membership in such a militia. That would have meant that we were all entitled to own the latest weapons in use by the military. Clearly, that would have invalidated the NFA, for example. The 1939 Miller case merely hinted at this.

 

[2agunner]

The NFA of '34 and GCA of '68 are blatant, unlawful infringements of 2A.

The Constitution and the Bill of Rights are a contract between the nation's people and the nation's government that establishes the conditions that allow the existence of the government.
If any branch of the government breaks this contract then the government loses all authority over the people... .

Is unlawful infringement considered a breach of contract? If yes, then based upon what Westernrover said and you said then the government lost it's authority over the people.

 

[dogtown tom]

.......The reason why I asked the question is because of a conversation I had with a gun salesman. He was saying things I never heard by someone that works in a gun store before. It's logical and makes sense and I agree with what was said. The salesman can believe what he wants regarding the Second Amendment, but what caught me off guard was that he said most people think that way about the Second Amendment because they can't read and don't know history. We know many times the gun salesman is the least knowledgeable about guns. More than that, I also wanted to ask the question because he was boasting about I have hundreds of guns in my collection and have a big library of books on guns and history.

Anyways, I have believed for decades what has been stated and will continue to believe that regarding the Second Amendment.

Bottom line: he was saying the right to acquire arms is not implied, which is illogical. He further stated that at the time the Second Amendment was passed it was intended for only to protect the right to keep and bear arms with what people already had at the time, not to get more guns. Don't know if that's true or not but that's why my post was lengthy.

Key takeaway, definitely take what anyone says about the Second Amendment including gun salesman with a grain of salt that says I know everything there is to know about all things gun related.

Your gun salesman is an idiot. His understanding of the Second Amendment is laughable.

 

[westernrover]

Is unlawful infringement considered a breach of contract? If yes, then based upon what Westernrover said and you said then the government lost it's authority over the people.

So what can be done about it? Should we the people overthrow it? Or should we see it similarly to the other breaches in civil rights that have been overcome in our nation's history, and work toward the kinds of solutions that worked in those cases?

 

[2agunner]

So what can be done about it? Should we the people overthrow it? Or should we see it similarly to the other breaches in civil rights that have been overcome in our nation's history, and work toward the kinds of solutions that worked in those cases?

Don't know, I have questions but not answers. Don't know what the point of having a contract is when the government can't fulfill it's obligation and breaches contract. Perhaps it's asking for too much for the government to do better since it has authority over people versus a private party versus another private party. That's just between two parties. But, when talking about the government it's that entity versus the public which is much more than just a couple of people involved. In other words, a lot more is at stake especially when talking about unlawful infringement of the 2A. I assume it's very important and it wasn't arbitrary and was specifically placed number two for good reason. Also, don't know if using other solutions in other civil rights breaches can work because the 2A is a completely different animal.

 

[Old Dog]

Don't know what the point of having a contract is when the government can't fulfill it's obligation and breaches contract

Eh, it all points out that in a republic or democracy where citizens elect their leaders, there is not the presumption that the leaders have the best interests of the citizens at heart, but rather that the citizens should be educated about whom they elect.

 

[2agunner]

Eh, it all points out that in a republic or democracy where citizens elect their leaders, there is not the presumption that the leaders have the best interests of the citizens at heart, but rather that the citizens should be educated about whom they elect.

That presumes that the elected do what they say they will do after they are elected. In other words, don't make promises you can't keep. Can't have authority without trust and transparency. You can but there's going to be a breakdown somewhere. Perhaps that's why politics and voting is in the current state that it's in.

 

[shafter]

Indeed. The concept of the militia is central to the understanding of the 2nd Amendment. As you say, the Founders didn't care about the general, private ownership of firearms. That was a given in 1791. What they did care about was the civic right of the militia to be armed.

We have to look at what the militia was like in 1791. There was a "general" (universal) militia in every state, in which, theoretically, every free male citizen of military age was enrolled. They were supposed to have periodic (annual?) musters at their county seats, bring their own weapons, have their weapons and equipment inspected, and undergo some rudimentary military training. But this never really worked out in practice. The musters, on the rare occasions when they were actually held, quickly deteriorated into drunken parties on the courthouse lawn. The fact is, the early Americans were too busy with their private lives, and in the absence of an immediate threat, they didn't take their militia obligation seriously.

So the militia quickly devolved from the "general" militia to a self-selected "volunteer" militia. These were basically military hobbyists who formed themselves into local units, and then applied for state sanction. These volunteer units were supplied arms and equipment from the state governments, which in turn were allocated arms and equipment from the National Armories and other federal installations, according to a set formula.

The War of 1812 was a mess, fought by a disorganized mixture of general and volunteer militia, along with small numbers of Regulars. Thereafter, the general militia was abandoned. The Mexican War and the Civil War were mostly fought by units of volunteers.

The point is, the volunteer militia was centrally supplied. The members no longer had to provide their own weapons. The 2nd Amendment's direct application to this militia therefore became moot. By, say, 1820, the 2nd Amendment was a dead letter as regards its original purpose, which was the private arming of the militia. And then it sat dormant until it was resurrected in the 20th century as the foundation of a private, individual right.

But the big mistake was Justice Scalia's treatment of the Militia Clause as a nullity, in the Heller decision. What he should have done is recognize the idea of a universal militia (even though it didn't exist in practice), and then base the right to private arms on putative (theoretical) membership in such a militia. That would have meant that we were all entitled to own the latest weapons in use by the military. Clearly, that would have invalidated the NFA, for example. The 1939 Miller case merely hinted at this.

Great post. I wonder how broad the term "arms" was in those days. Did it refer to shoulder fired weapons only or did it include cannons as well?

 

[RetiredUSNChief]

And that's when we say, but what about those pesky 15th,19th, 24th and 26th Amendments as well as the Voting Rights Act of 1965 with several subsequent extensions? With the acknowledgement that Shelby v. Holder gutted the VRA, there's still significant movement within the country to formally improve the right to vote throughout the country and review of unconstitutional barriers to disenfranchise citizens.
And that's when they say, asking for identification to cast one's ballot, or force one to cast one's ballot in person is a barrier to voting, and and unreasonable "restriction" on one's right to vote. It's a constitutional right to "their" side.

Yet "their" side not only throws up additional barriers to acquiring firearms, ID is required. Go figure. One constitutional right comes fraught with barriers and infringements while requiring positive identification to exercise that right.

And... another is viewed in exactly the opposite. Is it about the perceived threat or danger to the society? Some would posit that the results of elections spawn far more disastrous consequences to a country than the ability to purchase firearms.

Some would say that this hypocrisy should be evident to both sides.

And still, we are not always arguing specific concepts, but too often rather simply the definitions of words contained in the concepts and the interpretations of seemingly plain language.

Anyone remember the movie Something's Gotta Give with Jack Nicholson? Great line after Diane Keaton's character calls out Nicholson's character for lying to her... He says, "Ive never lied to you, I've always told you some version of the truth." And she replies something along the lines of, "There are no versions of the truth." When we get down in the weeds like this, that's pretty much how I feel. At this point, we need to acknowledge that the other side will never see our "version of the truth" and figure out how better to approach the issues besides constantly repeating our mantra, "The Second Amendment specifies the right to keep and bear arms shall not be infringed." The other side does not, and will not, ever understand this.

You are correct. They can say whatever they want. Doesn't mean they understand what they're saying.

Like those "pesky 15th,19th, 24th and 26th Amendments as well as the Voting Rights Act of 1965 with several subsequent extensions", for example. None of them explicitly address voting as a right... they all IMPLY it by saying things like "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged...". But WHERE is it explicitly stated that voting itself is a right? Nowhere.

And that's my point to these people. A right does not have to be explicitly enumerated or defined for people to have it. To go down that road is to pave the way to Hell with respect to liberty and freedom. Because if such logic applies to the RKBA, then it must apply to all else as well.

 

[RetiredUSNChief]

I'll say it. A gun salesman who'd say something such as this is a blithering idiot.

You have a marvelous way with words!

Spot on, here.

 

[illinoisburt]

But the big mistake was Justice Scalia's treatment of the Militia Clause as a nullity, in the Heller decision. What he should have done is recognize the idea of a universal militia (even though it didn't exist in practice), and then base the right to private arms on putative (theoretical) membership in such a militia. That would have meant that we were all entitled to own the latest weapons in use by the military. Clearly, that would have invalidated the NFA, for example. The 1939 Miller case merely hinted at this

I respectfully disagree. Any reading of the individual rights of the people as a collective is a mistake, regardless the intention. There is a separate specific section of the constitution dealing with the militia. Attempts to conflate the enumerated individual rights with powers of Congress and the States simply opens the door for further erosion of the people's rights. Rather than limiting restrictions on what individuals can do, it will provide a very wide opening for legislation requiring any and all weaponry to be owned only by the military unit and secured in central armories only to be issued to members as dictated by officers.

 

[AlexanderA]

I wonder how broad the term "arms" was in those days. Did it refer to shoulder fired weapons only or did it include cannons as well?

I think the only thing that was required at the early militia musters was an individual musket. But that certainly didn't prevent the rich citizens (and aspiring politicians) from showing up with a cannon. That would have caused quite a stir.

We can get a clue from how the arms distribution system in the 1840's and 1850's worked. Each state was given a quota of muskets that it could draw from the national armories. But instead of muskets, a state could choose to draw an analogous number of cannon, horse harnesses, etc., at its option. Say, at the ratio of one cannon, with supporting equipment, for each 50 muskets in its allocation (not sure of the exact ratios). And then all this stuff was distributed to the volunteer militia units, or held at the state armories. So yes, all these things were included as "arms."

 

[shafter]

So, the question would be does the 2nd Amendment reference "The people" as collectively those comprised of militia units protecting the "free state" or as individuals?

Incredible how one sentence contains so much interpretation when you really drill down.

 

[illinoisburt]

So, the question would be does the 2nd Amendment reference "The people" as collectively those comprised of militia units protecting the "free state" or as individuals?

Incredible how one sentence contains so much interpretation when you really drill down.

That was exactly the question so often debated by politicians who wanted to enact gun control. The Supreme Court clearly answered that it is an individual right, just like all the other enumerated rights of the people enshrined in original Bill of Rights. I don't think there was any question as to what the amendment meant prior to the 1960s. Schools and media have done a fair job of convincing people otherwise since then.

 

[Old Dog]

I think the only thing that was required at the early militia musters was an individual musket. But that certainly didn't prevent the rich citizens (and aspiring politicians) from showing up with a cannon. That would have caused quite a stir.

It wasn't "required," but let's not forget those guys who owned their own ships -- complete with several cannons -- issued Letters of Marque so they could engage in warfare (and profit from it!) against (first) the colonie's and then (second) the country's enemies.

Did anyone else think of any of this when Biden's speech (on MLK Day) referred his concept of what the 2nd Amendment meant (plus his go-to phrase, "deer don't wear kevlar")?