Thoughts on the 2nd Amendment (long-ish)

[goon]

Few people realize this, but the only reason we have any Bill of Rights at all is because of a compromise between the Federalists and the Anti-Federalists to get the Constitution ratified. The Federalists wanted a stronger government to replace the weak Articles of Confederation but the Anti-Federalists feared giving government too much power.

The Federalists feared a Bill of Rights because to them, the people obviously already had ALL the rights not placed under the specific jurisdiction of the government. To identify certain rights might mean an implicit acknowledgement that the government had authority to regulate any right not specifically identified. Hamilton said it better than I can in Federalist No. 84 :

"...bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power."

The Second Amendment was added (based largely on existing state constitutions) and the BOR attached to the Constitution under this climate because although everyone "knew" that the people retained all rights and powers not specifically delegated to Congress or the states, the Anti-Federalists felt it very necessary to go further in identifying certain rights which were even more important.
Make what you will of that.

 

[happygeek]

^ That's why they included the 9th

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

followed by this

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

which it seems almost everyone in D.C. pretends doesn't exist.

IMHO the reason why they spelled out certain rights in the first 8 Amendments is that those were the rights that England had been trampling on, and that memory was fresh in their minds. The 3rd Amendment might seem strange to us today, but at the time that British injustice was a vivid memory.

Of course as we all know, the shooting war started when the British attempted gun control at Lexington & Concord. I'm sure that was on their minds too when they wrote the 2nd.

 

[goon]

As you say, parts of the Constitution are sadly ignored when it's convenient to do so.
We've also lost the mentality that the Founders had - that ALL the rights belong to the People unless we as a nation specifically choose to allow the government to exert authority over something. Truth is that it took me several years of undergraduate history courses and a conversation with a very insightful professor to realize that.
Hopefully others aren't so slow on the uptake. But that's why I always bring this up - because many people don't quite grasp that the rights existed, and would continue to exist, regardless of whether the BOR had ever been written or not.
I'm no anarchist - far from it given how it's worked out in places like Somalia - but government has to be conducted with respect to the Peoples' rights, even when that makes it harder to govern. Officials are elected knowing that they are getting a tough job so they should expect to deal with that.

 

[Squeaky Wheel]

Hopefully others aren't so slow on the uptake. But that's why I always bring this up - because many people don't quite grasp that the rights existed, and would continue to exist, regardless of whether the BOR had ever been written or not.

Well said. While I agree with this position, I fear that our country has changed dramatically (for the worse) since 9/11. Ever since 9/11, it's not uncommon to hear people (both Dems and Repubs) talk about their desire, and the necessity, of the federal government to do WHATEVER IT TAKES to prevent another attack. As has been stated by others in other venues -- we are no longer "the home of the brave". It appears that many are willing to grant the federal government any and all authority to "keep us safe". So we now have Department of Homeland Security, TSA, warrantless wiretaps, widespread surveillance of the public, surprise visits from federal agents at 3am for those suspected of being connected to terrorism, etc. We are now "the home of the fearful".

I'm sure that some look forward to the day when we need to have a federally issued ID card with biometrics and will need permission from the feds to travel from one state to another -- all to keep us 'safe' from the terrorists.

I will be delighted for any of you to point out that I'm wrong (I genuinely hope that I am), but if you do, please provide some evidence to the contrary.

 

[GambJoe]

It's amazing to see people here compare certain elements of this government to Stalinist and speak of revolution on this Fourth of July. After a recent Supreme Court decision finally clarified what gun ownership and the extent of which local governments control over it was, many members still don't get it. At least for guns we are probably the most country in the world. This country does other things to. Think of it ending slavery, raising Chicago, sewage systems and clean water acts, the Erie Canal, the purchases of Louisiana and Alaska, the space program, and defeating fascism and communism to name a few. Most importantly this is the country that welcomed my grandparents a hundred years ago and left them alone. I don't think of this country as a place where anyone with an axe to grind gets to take up arms against it.

There's more to our history of than one line out of our constitution, much more.

 

[goon]

I don't think of this country as a place where anyone with an axe to grind gets to take up arms against it.

There's more to our history of than one line out of our constitution, much more.

Neither do I.
But acts that the goverment carries out need to be within the bounds of what the Constitution allows.
And if they're not and they still need to be done, then the Constitution can be amended using the estabilised, legal system for doing so. This prevents knee-jerk overreactions and allows us to rule ourselves based on national consensus rather than the desires or fears of a few in power.

 

[B!ngo]

I'll re-interpret what I stated. It seems to me that, when speaking with anti-RKBA's, that simply saying the 2A gives us the right to do so falls a bit short. Moreover, if anti's were to interview a thousand gun owners and each got a different answer or reason why the 2A did in fact provide those rights, it would make a less compelling argument than if gun owners could unify on their interpretation of the 2A.
If this sounds too much like mind-control for you, then so be it. But it was hardly intended to be that. And instead of just sending money to the NRA so they will continue to construct a compelling and winning story, we all personally did so, we'd all be better for it. Or so it seems.
Finally, regardless of what the court has interpreted, we all see that the actions taken in individual states such as CA, NY, IL can diminish said ruling in a way that inhibits what you interpret the court has interpreted. So, if that is alright with you, not your problem, Then so be it as well.
So, what was the problem with what I stated?
B

Get our story straight? What does that mean? You get your own story straight. The court has ruled in the heller case that the 2nd amendment protects the individual fundamental right to keep and bear arms, and the reason for the holding is explained in that decision. Your attempt to "re-interpret" the right to somehow define it in "modern times " was rejected by the court, too.

Let us know what you decide.

 

[Fremmer]

There's nothing wrong with having disparate opinions about whatever you don't seem to understand about the 2nd. We don't have to tailor or unify our opinions to satisfy antigun people, who seem to rely on arguments about our modern society justifying the infringement of our constitutional right to keep and bear arms. Arguments that were already rejected by the us supreme court.

Oh yeah, and we all need to stop giving money to the nra. Right, sure we do.

 

[B!ngo]

There's nothing wrong with having disparate opinions about whatever you don't seem to understand about the 2nd. We don't have to tailor or unify our opinions to satisfy antigun people, who seem to rely on arguments about our modern society justifying the infringement of our constitutional right to keep and bear arms. Arguments that were already rejected by the us supreme court.

Oh yeah, and we all need to stop giving money to the nra. Right, sure we do.

Honestly, you are right. And if I seemed too insistent, or my way or the highway, I apologize. I was only trying to highlight the value of pulling together to deal with, as I read many threads on this forum, and ongoing struggle with anti-'s. Surely it needn't happen in that, by accounts of many respondents, gun ownership rights are generally not under attack in this country. OTOH, if that were to radically change, a unified message is always a wise tactic to take when disputes are held in the court of public scrutiny. And that was the only point I was trying to make.
Re your comment about the NRA, I'm just not understanding what you're implying. I said and meant nothing of the kind. I in fact noted that they were the ones that many gun owners have designated, through their support and contributions, to carry on the fight for gun owners rights. I guess I'll go back and read what I wrote.

Edit: so I re-read what I wrote re the NRA and still don't understand your interpretation.
B

 

[Ole Coot]

I read all the fancy and technical weapons under government control and how a citizen might as well give up, can't match the firepower. Who can say our military would go along with search and seizure of firearms? Us older guys and young men and women in my opinion won't be goons for the government. If push comes to shove we and our kids are the military now or was at one time. The government may count on UN troops but not all of our military. This is not a give up situation. The 2nd may divide the military but will yield very few "storm troopers". Us old men from the earlier "conflicts" haven't forgotten how to survive.

 

[beatledog7]

I pose the following as a thought experiment. This post is not intended to question the interpretation or ongoing support of the 2A. But rather, to initiate a discussion on the value of it in this day and age, and how the founders of our union would interpret it in these times.

It's astonishing to me why we all think we are empowered to interpret the Constitution. The fact is, no individual or group is given that authority. The document is presumed to be immune to interpretation.

And that's ok, because it can be changed through the amendment process. If what it says--which is exactly what it means and all that it means--proves unworkable or in need of modification, Congress and the States together are empowered change it. The courts are not. The President is not. The United Nations is not.

That's all there is to it.

 

[Fremmer]

I have no idea how we'll answer your demand that we get our story straight, or provide anything more than an answer that will probably have to be adjudicated by a court. And then we get comments about the nra. What could giving money to the nra have to do with your question?

You try and deal with an antigun person just like any other person, calmly and rationally. Otherwise, I'm still not sure what you're getting at.

 

[JDBoardman]

Gentlemen:

As I, an old fool from an earlier generation now see it, the greatest damage to the inherent ideal of freedom first given voice in the Declaration of Independence - that rights are inherent, that they arise from our humanity, and are not something bestowed upon us by a benevolent government, was lost sometime in the 1960's with the rise of a "professional political class" and with an uncontrolled and unaccountable bureaucracy. The principle that government exists to serve its citizens has done a complete inversion and now we are told that we serve the government. I, for one, believe that the greatest casualty of the War Between the States was the 10th Amendment - that as horrific as the loss of 650,000 American lives, the resulting subjugation of the people to the State was far more horrendous.

I can remember when government employees were called (and the populous believed they were) public servants; when elected officials were the representatives of the people, and not our ruling elite. I don't know exactly when we went from citizens to subjects - was it while I was overseas in Viet Nam, was it during "Missiles for Monica", or was it with the passage of the USA Patriot Act? I do know that the country I left to go fight an ill-concieved war was not the same country I returned to two years later. And since then, the rate of change just seems to be accelerating.

Still, with all her faults, we still live in a unique place, and if we fail to do our utmost to preserve, protect and defend Her and Her ideals, our progeny will justifiably hold us in utter contempt for what we let slip through our hands.

 

[B!ngo]

I couldn't agree with you more JDB. And it's the seemingly further acceleration of change that worries me more and more, and leads to questions such as the one I initially posed.
B

Gentlemen:

As I, an old fool from an earlier generation now see it, the greatest damage to the inherent ideal of freedom first given voice in the Declaration of Independence - that rights are inherent, that they arise from our humanity, and are not something bestowed upon us by a benevolent government, was lost sometime in the 1960's with the rise of a "professional political class" and with an uncontrolled and unaccountable bureaucracy. The principle that government exists to serve its citizens has done a complete inversion and now we are told that we serve the government. I, for one, believe that the greatest casualty of the War Between the States was the 10th Amendment - that as horrific as the loss of 650,000 American lives, the resulting subjugation of the people to the State was far more horrendous.

I can remember when government employees were called (and the populous believed they were) public servants; when elected officials were the representatives of the people, and not our ruling elite. I don't know exactly when we went from citizens to subjects - was it while I was overseas in Viet Nam, was it during "Missiles for Monica", or was it with the passage of the USA Patriot Act? I do know that the country I left to go fight an ill-concieved war was not the same country I returned to two years later. And since then, the rate of change just seems to be accelerating.

Still, with all her faults, we still live in a unique place, and if we fail to do our utmost to preserve, protect and defend Her and Her ideals, our progeny will justifiably hold us in utter contempt for what we let slip through our hands.

 

[bsgjn]

2nd Amendment and when it was created

I believe in what Jefferson said and I quote:

"Those who hammer their guns into plows will plow for those who do not."
and
"The beauty on the 2nd amendment is that it will not be needed until they try to take it."

 

[Sam1911]

bsgjn, Thomas Jefferson never said either one of those things. They are falsely attributed.

Benjamin Franklin is accredited with authorship of the first one, and the second quote seems to have been invented in the last decade.

 

[Frank Ettin]

It's astonishing to me why we all think we are empowered to interpret the Constitution. The fact is, no individual or group is given that authority. The document is presumed to be immune to interpretation....

Not sure where you get that. Do you have some authority or source to support that conjecture?

Of course, your interpretation or my interpretation of the Constitution doesn't mean anything in the real world. On the other hand, the interpretation and application of the Constitution by the federal courts will affect the lives and property of real people in the real world. And, guess what, that's authorized by, of all things, the Constitutions (Constitution of the United States, Article III, Sections 1 and 2):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

Or, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

 

[wdyasq]

I've just read through this thread and it is interesting.

Perhaps a bit of knowledge gained from a close friend who operated in US special forces for 30 years will add a bit of levity to the thoughts of a civilian force overwhelming a professional force. Whenever two armed forces clash, there will be casualties.

One of many discussions we have had would pivot on percentages of losses a force would incur before the force became ineffective. Rather than misquote, I would rather state a 'professional' force has seen casualties and has had to deal with it. Not many folks will be able to operate efficiently when a brother/friend/father/mother/sister next to them has just been incapacitated. As a "Force Recon' friend of mine stated, "It's hard to return accurate fire when the man next to you has just been hit and is screaming bloody murder."

Of course a lot of the 'other side', being part of the group causing terror by selectively eliminating political leaders, will work on that fact too. Those folks voting with 'high speed lead' will find that vote is a lot more effective than a piece of paper or an electronic bit that may or may not be properly counted. Subordinates of political figures change their minds and votes when there is a survival vs reelection choice. I do believe the 'casualty ratio' for effective combat will be a lot lower for bureaucrats and politicians than for civilians. There will be no hiding for the political animals wanting civilians punished for wanting freedom and liberty.

Ron

 

[HEAVY METAL 1]

my thoughts

The term "well regulated" as written under the 2A meant something different in language of the day than what most people think the term regulated means now. Most people see the term as a circumscription of action rather than a standardization of equipment with the regular armed forces:

"to adjust to some standard or requirement, as amount, degree, etc."

In modern parlance the people were to be afforded the ability to have the same arms as the national forces. Therefore I postulate that laws restricting the citizens from owning machine guns is unconstitutional. Machine guns wouldn't be so expensive if they weren't so restricted. There would be parity of force, an equal playing field if you will.

The goverment should have absolutely no fear of an armed citizenry as long as it is doing the will of said citizens. the whole point of our government is that it is executing the will of the people.

 

[fallout mike]

Everyone go join your state militia so that you will have a better argument for having your guns when citing the 2nd amendment as your case for doing so.

 

[jrdolall]

I doubt we will resolve the interpretation of the 2nd Amendment on this thread any more than we could reconcile all of the differences of opinion regarding the 1st Amendment. Both are highly volotile and subject to interpretation by every person that actually reads them. How many people think that the 1A gives any American to say anything they want at any time regardless of the situation? Does the 2A give every citizen the right to own/carry a firearm no matter what the situation? There are very good argunemts both for and against the literal interpretation of each.

I personally believe there are situations in which a person does NOT have the legal right to say exactly what they want. I believe that great harm is done when young children are subjected to language that is harsh or vulgar. I personally do not want to listen to vulgar talk in public or loud rap music advocating killing LEOs and other unacceptable behavior. Does this make me against the 1A? I don't think so. It means that I understand that some interpretation is required.
The same goes for 2a rights. There are situations in which a person should not have the right to keep a firearm. My interpretation will vary from your interpretation. Of course I will be correct and you will probably be wrong.

I would also argue that our not being able to possess arms equal to the military is not as huge a factor as it might seem. The training of our military would be more likely to give them a big advantage over the general populace. With 50% of households containing firearms it is almost inconcievable that any US government would be willing to destroy half the households in the USA susing "smart" technology. It has been proven time and time again that a populace that is willing to continue to fight can succeed in a conflict against superior technology. Vietnam and Afghanistan (vs USSR) are examples of inferior technology and training eventually defeating the enemy. You can define "defeat" however you want but I define it as the inability to ochieve your objectives.

These arguments have been played out in the USA for over 200 years and will probably continue to be a source of argument for many years to come. As long as we the people continue to keep our government accountable then we have the chance to continue to live "free". My main concern is the gradual infringement on our 2A rights whatever they may be. I will be dead and gone before Alabama outlaws guns but I would hope that my descendants will be able to enjoy the freedoms that I have seen.

 

[happygeek]

Everyone go join your state militia so that you will have a better argument for having your guns when citing the 2nd amendment as your case for doing so.

http://uscode.house.gov/download/pls/10C13.txt

(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.

 

[beatledog7]

Frank's very detailed and learned post (#67) supports my point (though I'm sure he didn't mean for it to). While noting many cases and many interpretations, it fails to do the key thing that is required to prove that I'm wrong--it does not point to the words in the Constitution that say, in effect, "the power to decide what these words mean rests with ______." It can't, because they are absent.

The judicial power vested in a Supreme Court is the power to decide whether a law violates a Constitutional principle as that principle is stated. That is application, not interpretation. Federal officials take an oath to support and defend the Constitution, not case law and not someone's interpretation of the Constitution.

 

[Frank Ettin]

Frank's very detailed and learned post (#67) supports my point (though I'm sure he didn't mean for it to). While noting many cases and many interpretations, it fails to do the key thing that is required to prove that I'm wrong--it does not point to the words in the Constitution that say, in effect, "the power to decide what these words mean rests with ______." It can't, because they are absent....

It doesn't have to. The power to decide what the words mean is inherent in the exercise of judicial power. It is quite simply impossible to decide a "case arising under this Constitution" without interpreting what the Constitution means in the context of the matter before the court.

Again, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (emphasis added):

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule....

Law (including the Constitution, which is, itself, law) does not exist in a vacuum. It exists in this, the real world, where it is used as a tool by which courts decide the outcome of disputes. Just as a musical score is just marks on paper until it is realized by the playing of it, the law derives its meaning from its application by the courts to real life matters.

 

[beatledog7]

OK, so a judge says, in effect, "Judges have the power to interpret law," and we roll over and take it as fact.

How about if as an English teacher I declare that English teachers have the power to decide what words mean? Does that mean that they do? Or if a LEO declares that LEOs have the power to shoot suspected BGs on sight, do they then have that power? Of if a President declares that the President has the power to suspend habeas corpus, does he then have it?

Self-proclaimed power over others sounds pretty scary to me.

Does a judge have some magical insight to know what a legislature meant when it passed a law? If the meaning of a law has to be sorted out by a court, and whatever that court says it means is what it means, then what power does a legislature really have?

Again, Frank, you quote case law to support your views on the Constitution. Why don't you quote the Constitution to support your views on the Constitution? After all, Federal officers, even SCOTUS members, when they are sworn in, vow to support and defend the Constitution, not case law.