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Eroding the Second Amendment
Posted by: Jon Henke on Wednesday, November 22, 2006

This is all you need to know about the commitment of the NYTimes to the 2nd Amendment:
As a last little gift to America, Senator George Allen, who was narrowly defeated by James Webb this month, has introduced what may be his final piece of legislation: a bill that would allow the carrying of concealed weapons in national parks. The argument behind the bill is that national park regulations unfairly strip many Americans of a right they may enjoy outside the parks. The bill has passed to the Senate Committee on Energy and Natural Resources, where we hope it will die the miserable death it deserves.

America’s confusion about the Second Amendment is now nearly total. An amendment that ensures a collective right to bear arms has been misread in one legislature after another — often in the face of strong public disapproval — as a law guaranteeing an individual’s right to carry a weapon in public.
The "right to keep and bear arms" has become, for modern liberals, the right to keep the bare minimum of arms...out of sight.

Because, really, National Parks are already well-stocked with sticks and rocks for self-defense. And who needs to engage in self-defense in public, anyway?
the right to keep the bare minimum of arms...out of sight.
Imagine the New York Times making a similar argument against "America's confusion" about the First Amendment.
An amendment that ensures a collective right to free speech has been misread in one legislature after another — often in the face of strong public disapproval — as a law guaranteeing an individual’s right to speak freely in public.
 
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Previous Comments to this Post 

Comments
If individuals can’t bear arms, how can the "collective" hope to do so?

But whatever. The NYTimes can’t even get their own reporting correct, the constitution is beyond such as them
 
Written By: shark
URL: http://
...confusion about the Second Amendment...ensur[ing] a collective right to bear arms...misread
So what, do tell, DOES it mean?
 
Written By: D
URL: http://
Also Jon, McQ and Dale,

Your *&%# blocker also nuked the words "pray tell" which I had to substitute with "do tell" above.
 
Written By: D
URL: http://
I deleted it, but I was able to post pray tell with no problems.
 
Written By: Jon Henke
URL: http://QandO.net
Gun ownershp by individuals undermines communism and socialism. The NY Times is communist and socialist. So what’s the debate?
 
Written By: J
URL: http://
The "collective" (nonexistent) rights theory of the Second Amendment is pretty standard among major "news" (propaganda) papers. The L.A. Times and the Chicago Tribune have long argued the same thing, so I’m not surprised the NY Times does, as well. The only question is how many duly elected legislatures have to keep getting it "wrong" before "wrong" becomes "right."

As to Allen’s bill, the editorial is a bit odd in two other respects. First, my understanding is the bill only allows carry in national parks to the extent the applicable state does, meaning the net impact of the bill on any park in New York is essentially nil. Second, making an issue of Webb’s upset is a nonstarter, as Webb is A rated by the NRA, based on a questionnaire in which he promised to support this very measure.
 
Written By: Xrlq
URL: http://xrlq.com/
The "collective" (nonexistent) rights theory of the Second Amendment is pretty standard among major "news" (propaganda) papers.
A quick reading of the genesis of the Bill of Rights will disabuse anyone of the notion that any of them were "collective" rights.
 
Written By: McQ
URL: http://www.qando.net/blog
It was intuitive to the founders that in order for an individual member of the militia to bear arms, that member would themselves own arms. So it’s not enumerated specifically, in much the same way they didn’t bother to enumerate a citizen has the right to breath, see, hear or eat, it’s intuitive.

But since the NYT doesn’t understand the precise reason the citizens are armed is to offset any ’army’ the government might field against them (the presumption being that fielding would be unjust) why would it seem unreasonable to them that the militia itself should be an arm of that very government (and since at the time the citizens individual weapon wasn’t very different from the soldiers, there was parity between them).

I can’t repeat enough, the founders originally didn’t see the NEED for a standing army, and were quite keenly aware of the abuses a government could commit when they had one available.
 
Written By: looker
URL: http://
Arguing about the Constitution is a bit like arguing about the Bible: it all depends on an interpretation as it applies to today’s world.

In all fairness, though, it should be noted that the Second Amendment arose out of a debate about states’ militias as a defense against overreach by a Federal Force. It was more of a Fedaralist vs. anti-Federalist debate at the time. The right to bear arms by individuals referred to citizens reporting for durty in a state militia with their own arms. I suspect that’s what the article meant by ’collective’ rights, i.e. in the context of militias.

The argument now, and in recent decades, is about how that applies today to individuals’ bearing arms, when the context is totally different.

Like most arguments, this one is conducted by working backwards. First you take a stand, and then you try to read a complimentary meaning into the original text. Absolute clarity is possible only for those who look at only one side of the coin. There are plenty of bonafide arguments on both sides.


 
Written By: Laime
URL: http://
Tell ya what, I would not venture too far off the beaten path at Yellowstone without carrying a gun. There are some critters there that could have you for dinner.
 
Written By: markm
URL: http://
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.
What could be more clear? We need a "well regulated" Militia to bear arms. The Swiss have one of these and it has worked there for years. When we gave up on the idea of the militia, we gave up our power to resist the federal government. We are less free because if it.

If you are not in a well regulated Militia, your right to bear arms is not clearly defined in the constitution.

 
Written By: cindyb
URL: http://
being necessary to the security of a free State
CindyB this would seem to imply that it is NOT a National Security Issue but an issue of Indivisual Freedom and therefore an individual right, and not soley an issue of a "Militia". Further, the BoR grants INDVIDUAL Rights not collective ones, by-and-large, so it is UNLIKELY that the 2nd applies to us as a GROUP, but rather applies to us as INDIVIDUALS. Again obviating the idea of "Militia" or group.

I would say that Laime makes a very good point about this debate, it is only OBVIOUS my side is right , IF you’re on "my" side, whosoever is "my" side.

In fact, it IS obvious what the "Establishment Clause" of the 1st means from reading the debates concerning the 1st, whereas there was almost NO debate on the 2nd, In Congress at least, and so whilst it may have been OBVIOUS to the Founders it is far LESS OBVIOUS to us, today.
 
Written By: Joe
URL: http://
Arguing about the Constitution is a bit like arguing about the Bible: it all depends on an interpretation as it applies to today’s world.
Not really. It was either written as an individual right or it wasn’t. All the existing writing between the man who wrote the 10 amendment sand the man who demanded their inclusion points to them as individual rights.

Now you can argue that they’re really collective rights, but there’s nothing to back your opinion among that which was said and written by those who wrote the amendments and made them law.

So there really isn’t a interpretation problem here. Instead there’s a desire to change them into something their not in order to then interpret them the way you’d like.

That’s an entirely different thing.
 
Written By: McQ
URL: http://www.qando.net/blog
Laime -
Arguing about the Constitution is a bit like arguing about the Bible: it all depends on an interpretation as it applies to today’s world.
Read Constitutional Fate by Philip Bobbitt and come back when you know something about what you’re talking about.
-=-=-=-=-
CindyB -
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.

What could be more clear? We need a "well regulated" Militia to bear arms.
The Department of Justice begs to differ.
 
Written By: OrneryWP
URL: http://
Link for Constitutional Fate.
And when you’re done, pick up his Constitutional Interpretation. Hell, buy all his stuff. The Shield of Achilles is incredible, but it’s a different kind of book.
 
Written By: OrneryWP
URL: http://
If you are not in a well regulated Militia, your right to bear arms is not clearly defined in the constitution.
Wrong. If you’re not part of a well-regulated militia, then according to the preamble of the Second Amendment, you’re not (necessarily) necessary to the security of a free state. Only if you’re not part of "the people" does your right to bear arms come into doubt.
 
Written By: Xrlq
URL: http://xrlq.com/
It seems to me, that it takes a fair amount of judicial activism, to take the phrase "well regulated militia" and construe that to mean "bunch of individuals who have no chain of command, training or organization".

It says what it says. If they meant UNREGULATED militia they would have said so. Given how much the founders distrusted government and believed in checks and balances, I’ve got to believe that the armed miiita was a check to protect us from our own government.

 
Written By: cindyb
URL: http://
OrneryWP, TRUST ME, Constitutional Interpretation is NOT clear-cut, you can quote as many books as you care to. Are you a Textualist, an Originalist, a Critical Theorist? Each one has its supporters. I took a number of classes on Constitutional Interpretation and no it’s only "Obvious" to the members of each "church" that their way of interpretation is correct. To others it is far LESS obvious.
 
Written By: Joe
URL: http://
there are really two difficulties with understanding the 2nd amendment, though they often get blurred together.

First, no other amendment has a prefatory clause. To complicate matters, the prefatory clause refers to a form of collective conduct which no longer exists — "well-regulated militias" have turned into the National Guard.

Second, many individualist interpretations fail to focus on the word "bear". "Bearing arms", at the time of the drafting of the Constitution, meant wielding a military weapon in a military organization (according to most interpretations i’ve read). Again, the amendment contemplates collective conduct.

It’s also worth noting that a very strict interpretation of the Bill of Rights was not contemplated even by the Founders. "Congress shall make no law abridging the freedom of speech". So, in Congress, a spectator could get up and start shouting? Uh, no.
 
Written By: Francis
URL: http://
It seems to me, that it takes a fair amount of judicial activism, to take the phrase "well regulated militia" and construe that to mean "bunch of individuals who have no chain of command, training or organization".
No, it just takes some skill in grammar and sentence diagramming. No one says "well regulated militia" means "bunch of individuals who have no chain of command, training or organization", thats your strawman.

We’re saying the people means well, the people, everyone.
The right of the people to keep and bear Arms, shall not be infringed.
The militia part is just a sentence clause explaining why the people must be allowed to carry arms.
 
Written By: ChrisB
URL: http://
Also, one thing I don’t get at all is this. Left leaning people have been telling us for 6 years now how the govt is becoming increasingly dictatorial and authoritarian. Why do those same people want that same dictatorial govt to take away their weapons?

They decry the harsh master, yet beg for the yoke of servitude.
 
Written By: ChrisB
URL: http://
The militia part is just a sentence clause explaining why the people must be allowed to carry arms.
No, bad interpretation...IF you adopt it you UNDERMINE the right to keep and bear arms INDIVIDUALLY, it seems, because as was pointed out the "Militia" is now the National Guard.

A better focus is on the phrase, "Free state", a focus on Liberty, not Security, even that begs the question, is it an INDIVIDUAL or Collective Right? Because a "Free State" COULD very well mean EXACTLY that a Free State, e.g., a "Free Virginia", which is the basis for Robert E Lee’s decision to join the Confederacy. The Collective is the STATE, not the United States and fire arms are necessary to defend the State, be it VA, CN, or NY.

Again, Ornery and others it is NEVER so clear what the 2nd means. It is only clear to those that share your interpretation, and Laime STILL makes a good point.
 
Written By: Joe
URL: http://
Clearly, regardless of your interpretation, it does not say "the right of the MILITIA to keep and bear arms" - it says "the right of the PEOPLE to keep and bear arms".

Had they meant only the ’militia’ had that right, they would have said it.
 
Written By: looker
URL: http://
Not really. It was either written as an individual right or it wasn’t. All the existing writing between the man who wrote the 10 amendment sand the man who demanded their inclusion points to them as individual rights.

Now you can argue that they’re really collective rights, but there’s nothing to back your opinion among that which was said and written by those who wrote the amendments and made them law.
Wrong, as usual. On so many counts. But let’s start with the easiest one.

No one "man" wrote the Second Amendment. It may have started out from Madison, but the final text was written by committee. And it went through several drafts. It is purposely ambigious because it was meant to accomodate two general camps: the Federalists and the anti-Federalists. And the debate between these camps was not over the rights of the individual vs. the rights of the government. Rather, as the names of the adversaries imply, it was over centralized government vs. non-centralized government.

There is no "correct" answer to the question of whether the Second Amemdment guarantees an individual right. If it clearly did, it would clearly say so. But it doesn’t.
 
Written By: mkultra
URL: http://
Oh I HATE to agree with MK, but that is not a bad read of the 2nd.
 
Written By: Joe
URL: http://
There is no "correct" answer to the question of whether the Second Amemdment guarantees an individual right.
Actually there is: What was the purpose of the Bill of Rights? Or asked another way, what entity was it designed to restrict?

Hint: It wasn’t the individual.
 
Written By: McQ
URL: http://www.qando.net/blog
I have questions about the idea that the government can impose absolutely no restrictions on weapon ownership — a position that I think would be quickly abandoned as soon as individual nuclear weapons became available — but the suggestion that the RTKB is not an individual one strikes me as difficult to justify. What other collective rights are outlined in the Bill of Rights? Why would the FFs give the right to a state entity, but not to the common citizen? Why, in the bill of rights, would they include a "right" to state entities? If you insist that one must be part of a "well regulated militia", please define "well regulated"? Can we define "militia" as it was defined in the 1780s?

The Bill of Rights was a list of individual rights. It would be absurd to argue that the 3rd amendment only provided a "collective" right from troops quartering in their house, but not an individual one. It’s equally absurd to think that the FF’s intended to restrict gun ownership to either State organizations, or to private posse’s.
 
Written By: Jon Henke
URL: http://QandO.net
the Federalists and the anti-Federalists. And the debate between these camps was not over the rights of the individual vs. the rights of the government. Rather, as the names of the adversaries imply, it was over centralized government vs. non-centralized government.
Make it clear, are you talking about a centralized FEDERAL government, or a centralized state government.

At no time did the FEDERAL government have control of the State militias, that concept didn’t come until the formation of the National Guard, much later than the period being discussed.

Either group would have viewed the state based militia organizations the same way.
Yet we don’t have the right given to the ’state’ which the militia is to defend, or to the ’militia’.

PEOPLE.
 
Written By: looker
URL: http://
Well I agree with your point Jon, BUT the 2nd DOES have the pesky words, "State " and "Militia". Now, the militia MAY have been all free male property holders, then and by implication ALL citizens with voting rights NOW, and therefore for the individual, still the words "free state" is there. And that could very well have meant that the obligation is to the State, Va, CN, HA, to defend the State, and that it is NOT an INDIVIDUAL RTKB, but a duty for the COLLECTIVE defense of the State.

I tend toward the Henke/McQ side in this, but I get a case of the ar$e when someone talks aobut OBVIOUS this or OVIOUSLY that...because it isn’t as obvious as we might think, in this case. What the Establishment Clause meant when passed is fairly clear, but a number of amendments really aren’t so clear and what they "mean" really depends on HOW you interpret the document.

 
Written By: Joe
URL: http://
Why suddenly enumerate a state right in a list of otherwise individual rights?
 
Written By: looker
URL: http://
Actually the militia still exists. It is all of us. The militia was defined as all able bodied men of fighting age. I am not aware that they have disappeared. Nor is the militia now National Guard. Standing militia’s analogous to the Guard existed at the time. By "well regulated" they did not mean what Cindyb is describing. That was the standing militia, though the actual form these various militia’s took varied form state to state. No, "well regulated" was about the need to be able to call upon the people’s of the various states in time of need. It was in direct opposition to large standing armies, amongst some against standing armies of any type.

Contra Joe, it is telling that all discussion of the 2nd at the time expressed it as an individual right. While other amendments had a lot of debate and therefore a large record of the controversy over them, the second had almost no dissension, therefore little from the founders themselves about the amendment. That is why the committee excuse doesn’t work. If people had found Madison or any of the other people’s views on the subject controversial you might have expected some statements to that effect. There are none because nobody felt that way.

Nor is the fact that the world has changed important in this discussion. The founders felt the ability of the people to form a militia was important, but it was not the only reason for the amendment. They said so, nobody said different, so it really doesn’t matter whether one is a textualist or originalist or something in between. The text says people, regardless of the rationale, and the rationale as to intent all points to an individual right being the issue.That the individual right was necessary for a collective good does not mean the individual right plainly expressed ceases to exist. So either way of interpreting it works out to the same thing.

Since we, the people are the militia, and since we still exist, it follows that we still have the right to bear weapons. Similarly the definition of "bear" is irrelevant. Certainly bearing arms is what we as the militia would have to do. Therefore the founders wanted as many people as possible to know how to carry firearms (part of the well regulated bit) and be able to volunteer for occasional training. That is still applicable today, even though few of us do so volunteer. We still are capable of bearing arms. Besides, it is not true the phrase was only used to refer to military affairs anyway, no matter how many times Gary Wills says that it is the case.

Finally the whole compromise between the federalist and anti-federalist argument as to the Bill of Rights is wrong as well. Yes, they fought over a great many things, but not this (though some resisted the entire exercise, it was not because they didn’t feel we had the right to bear arms.)The fact the Bill of Rights was a compromise in no way implies that the understanding of Madison was incorrect on any of it. Where he lost the words were changed, they didn’t all of a sudden become something different than what he and others said they were. They didn’t say, "go ahead stick in ’the people’ but since we are all compromising here we’ll just agree that this will be the only place in the Bill of Rights where ’the people’ really means the government. That way the right you are working so hard to put in won’t really be a right, but a framework for later needs. Does that work for you and Jefferson Mr. Madison?" If something along those lines were being compromised I am sure Madison would have just left, because what is the point? Nobody was arguing the governments couldn’t have guns. Exactly why have a second amendment if that is what they are arguing? Seems a bit pointless doesn’t it?

Interpretation is necessary, but the document isn’t a piece of taffy to stretch to be whatever you want.
 
Written By: Lance
URL: http://www.asecondhandconjecture.com
from Ornery’s link to the Justice department interpretation (current version anyway....)
The Second Amendment’s recognition of a "right" that belongs to "the people" indicates a right of individuals. The word "right," standing by itself in the Constitution, is clear. Although in some contexts entities other than individuals are said to have "rights," (37) the Constitution itself does not use the word "right" in this manner. Setting aside the Second Amendment, not once does the Constitution confer a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a "right of the people" discussed below, the Constitution in the Sixth Amendment secures "right[s]" to an accused person, and in the Seventh secures a person’s "right" to a jury trial in civil cases. (38) By contrast, governments, whether state or federal, have in the Constitution only "powers" or "authority." (39) It would be a marked anomaly if "right" in the Second Amendment departed from such uniform usage throughout the Constitution.
I would hope the justice deparment has a little more going for it in a weight of legal interpretation sense than most of us here, MK included.
 
Written By: looker
URL: http://
A further thought - given that rights were viewed to have been endowed by a creator, I find it unlikely they believed that the creator endowed the STATE with rights.

And you can read any version of intent you want, depending on how you like the idea of private citizens owning guns, but don’t pretend they foresaw the need to handle YOUR interpretation based on our current society back in the late 1700’s.

As Freud is reputed to have said, ’sometimes a cigar is just a cigar’.
 
Written By: looker
URL: http://
but don’t pretend they foresaw the need to handle YOUR interpretation based on our current society back in the late 1700’s.

Well all these pre-supposes the idea of "Authorial Intent" what if and the Reality IS, it’s "Reader Response?" Who cares what the Founders INTENDED, assuming it can be determined. It is what the Courts SAY it means that count...
 
Written By: Joe
URL: http://
All of this nonsense about the 2nd Amendment being some sort of collective right is just that: nonsense.

At no time prior to the 20th century did any constitutional scholar or commentator ever refer to the 2nd Amendment as anything but an individual right. The universal interpretation of the 2nd Amendment, in commentaries, legal articles, and con-law textbooks from the founding of the Republic until the 20th century, was that the 2nd Amendment was an unquestioned individual right.

The "collective rights" interpretation of this amendment is a completely ahistorical revision of its meaning, and simply didn’t exist at any time prior to the 20th century. It first reared its ugly head publicly in a law review article in 1916.

To believe in a "collective right" to bear arms is to believe that no American legal scholar, from 1792 to 1916, correctly understood the meaning of the 2nd Amendment, but that legal scholars miraculously discovered the true meaning of the amendment 140 years after its promulgation.

That’s not just nonsense. It’s nonsense on stilts.
 
Written By: Dale Franks
URL: http://www.qando.net
This is all a very nice discussion, but can someone explain to me why it’s a benefit to society that people have the right to carry guns in a National Park? I mean, for tours of the White House, the Supreme Court and the Capitol, I can understand why it would be important to carry a gun. But the National Parks, that’s going to far.
 
Written By: Steven Donegal
URL: http://
MCQ: "It was either written as an individual right or it wasn’t."
===
The words re the ’right to bear arms’ appear as a clause in a long sentence. Taking the words out of the context of the whole sentence already skews the point, a bit.

A sentence: If it rains. you must use an umbrella.
The clause: You must use an umbrella.
See?

Like I said, it is absolutely clear to only those who start with and end with a particular slant, and can not see the other side of the coin.

You would be better off arguing that the right to bear arms was implied by the requirement to show up for militia duty with your own gun. But then we get into the area of inferences and implications, which inevitably leads to accusations and counteraccusations of judicial activism.
 
Written By: Laime
URL: http://
Actually there is: What was the purpose of the Bill of Rights? Or asked another way, what entity was it designed to restrict?

Hint: It wasn’t the individual.
The power of the federal government, of course. But that observation only invites the question. It doesn’t answer it.
The Bill of Rights was a list of individual rights
Why suddenly enumerate a state right in a list of otherwise individual rights?
Huh? Look at the amendment that comes immediately before the Second, i.e., the First. It prohibits the government from limiting the freedom of the press. Now, the press is hardly an "individual." Sure, it is made up of individuals, but then so are militias.

When one speaks of "the press," one is speaking of a collective entity. Thus the idea that every single right in the Bill of Rights relates only to the rights of the individual, and not the right of colllective entities, is simply false.

More to the point, look also at the Tenth Amendment. It explicitly discusses certain rights being reserved to "the states." So much for the idea that the Bill of Rights deals exclusively with the rights of the individual vs. the government.
 
Written By: mkultra
URL: http://
This is all a very nice discussion, but can someone explain to me why it’s a benefit to society that people have the right to carry guns in a National Park?


There’s bad people everywhere....including national parks. Drug runners, illegal immigrant runners, hippies in communes, etc.

It’s nice to have some self-defense out in the middle of all that parkiness
 
Written By: Shark
URL: http://
Look at the amendment that comes immediately before the Second, i.e., the First. It prohibits the government from limiting the freedom of the press. Now, the press is hardly an "individual." Sure, it is made up of individuals, but then so are militias.
No, you’re misreading this bit. Back then the "press" wasn’t any sort of a collective - it was basically individuals printing their own bomb-throwing broadsheets. In other words, it is a logical extension of the freedom of speech (freedom of the individual to say what they want) to cover the freedom for individuals to write/print/publish what they wanted.

Nice stab at semantics though
 
Written By: Shark
URL: http://
The "collective rights" interpretation of this amendment is a completely ahistorical revision of its meaning, and simply didn’t exist at any time prior to the 20th century. It first reared its ugly head publicly in a law review article in 1916.
Really? 1916? A law review article?

Well, last time I looked, the published decisions of state supreme courts are public documents. The Kansas Supreme Court said, in City of Salina v. Blaksley, 72 Kan. 230 (1905) (emphasis added):
That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: "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.
Indeed, the collective right interpretation has even deeper roots in state court decisions that predate City of Salina. See, e.g., State v. Buzzard, 4 Ark. (2 Pike) 18 (1842).

Sorry Dale, but once again, you are about as wrong as wrong gets.


DALE RESPONDS: I should’ve looked it up rather than popping off from memory. Salina v. Blakesly is, indeed, the first collective rights interpretation of the 2nd Amendment. So, the real meaning of the right was apparently discovered 129 years after its promulgation, not 140.

[sarcasm]That, of course, is a major change which invalidates my entire previous comment. Those 11 years are vitally important, apparently.[/sarcasm]

Oh, and by the way, Salina v Blakesly directly contradicted the Supreme Court’s 1886 ruling in Presser v. Illinois.

So, it was wrong on its face when the Kansas Supreme Court decided it.
 
Written By: mkultra
URL: http://
mk -
Huh? Look at the amendment that comes immediately before the Second, i.e., the First.
You must think we’re really stupid.
More to the point, look also at the Tenth Amendment. It explicitly discusses certain rights being reserved to "the states." So much for the idea that the Bill of Rights deals exclusively with the rights of the individual vs. the government.
You’re just asking for it tonight, mk. Read for comprehension:
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.
-=-=-=-=-=-
Laime - Clearly you’re not familiar with prefatory clauses. I suggest that you actualy read the link I provided from the DoJ.
-=-=-=-=-=-
Joe -
I never said that Constitutional interpretation was a super-simple, obvious thing — else, why the h*ll would I reference two books and a lengthy DoJ site? I never argued that it was clear-cut, and if you thought twice before taking another jab at me (as is your habit), you’d realize that I was trying to say exactly that to someone who tried to boil it all down to,
Arguing about the Constitution is a bit like arguing about the Bible: it all depends on an interpretation as it applies to today’s world.
And you called that "a good point," like he was doing anything besides lamely trying to lay down smoke where his ideology didn’t want to admit it’s out of ammo.
 
Written By: OrneryWP
URL: http://
Joe -
Well all these pre-supposes the idea of "Authorial Intent" what if and the Reality IS, it’s "Reader Response?" Who cares what the Founders INTENDED, assuming it can be determined. It is what the Courts SAY it means that count...
I have a hard time swallowing the idea that the contract between the people of the United States to establish a government, one seemingly founded on a limited government ethos, is subject to perhaps the least institutionally accountable agents of that government.

It’s precisely that kind of B.S. that real conservatives and libertarians are railing about and fighting against. If it’s all about what a few men decide on a whim, why have a Constitution at all?
 
Written By: OrneryWP
URL: http://
No, you’re misreading this bit. Back then the "press" wasn’t any sort of a collective - it was basically individuals printing their own bomb-throwing broadsheets. In other words, it is a logical extension of the freedom of speech (freedom of the individual to say what they want) to cover the freedom for individuals to write/print/publish what they wanted.

Nice stab at semantics though
Right, Shark, right. When the First Amendment says "the press," it doesn’t mean "the press." After all, we all know there were no newspapers in the 18th Century.

That must mean "the people" identified in the Second Amendment really doesn’t mean "the people." It must mean the militias then, right?

Ha ha ha ... oh Shark. You say the craziest things.
 
Written By: mkultra
URL: http://
You’re just asking for it tonight, mk. Read for comprehension:
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.
So what’s your point? My point was that the 10th Amendment addressed the power balance between the states and the federal government. The assertion that I was responding to was that the Bill of Rights addresses only the power balance between individuals and the federal government. Clearly that is not the case.

Your first sin is misrepresenting my point. Your second is not addressing it.

So tell, Ornery, how does the reference in the 10th Amendment to both the states and the people show that the Bill of Rights addresses only the people? Please explain. I won’t hold my breath.
 
Written By: mkultra
URL: http://
Are you being deliberately obtuse? This is very simple!

rights /= powers

Get it?
 
Written By: OrneryWP
URL: http://
Are you being deliberately obtuse? This is very simple!

rights /= powers

Get it?
Again, engage the question. Does the Bill of Rights address the power or rights of state governments v. the federal government or doesn’t it? Why won’t you answer that question? Call them rights or call them powers, I don’t care.
 
Written By: mkultra
URL: http://
So tell, Ornery, how does the reference in the 10th Amendment to both the states and the people show that the Bill of Rights addresses only the people? Please explain. I won’t hold my breath.
I didn’t make that assertion. You brought up the Tenth Amendment and you said it was something that it most certainly is not.

Whether your "point" as defined in your head had anything to do with what you wrote is another thing altogether.
 
Written By: OrneryWP
URL: http://
The Bill of Rights addresses the powers of the federal government and the rights of the people. It does not establish rights for the states. In fact, if one reads the Ninth Amendment in combination with the Tenth Amendment, it specifically avoids giving the states any power or rights. It merely acts as another part of the ocean of rights surrounding the islands of state powers.
 
Written By: OrneryWP
URL: http://
I have a hard time swallowing the idea that the contract between the people of the United States to establish a government, one seemingly founded on a limited government ethos, is subject to perhaps the least institutionally accountable agents of that government.
And yet every day it does AND we accept its decisions. Again there seems to be some belief that the ORIGINAL INTENT of the Constitution CAN BE determined. I simply say, it is possible to say what the Founders DID NOT inted, to a large degree, but it is much more difficult to determine what they INTENDED. I am not sure what the Founders meant by the 9th Amendment and the Idea of Substantive Due Process, does the 5th Amendment guarantee a more diverse definition of "Liberty" or does Liberty simply mean "Not in Jail"?

As to the 2nd I am not sure that it is entirely clear what the Founders intended, surely an individual right, but a right to defend oneself or to defend one’s state? If the latter, then the 2nd is a very circumscribed right, because states have no recourse to violence, now, Appomattox settled THAT! If the former, what limits can be placed on the RTKB? As someone has already pointed out, I doubt anyone is too keen on the neighbors owning a Mk-28 Thermo-Nuclear Bomb, but at what point does the 2nd allow restriction? And the limits MUST be imposed by the People AND the Courts, for surely the Founders provided no input. So, we get back to WHO CARES WHAT TEH FOUNDERS INTENDED, to an extent.
 
Written By: Joe
URL: http://
Laime, your sentence:
A sentence: If it rains. you must use an umbrella.
The clause: You must use an umbrella.
Is inaccuarte for comparision. It should read:

If it rains, in order to protect yourself, you have the right to use an umbrella.

In addition the right to bear arms is not a clause in a long sentence but the main portion of the sentence with a preface. As the DOJ link above points out:
A preface can illuminate operative language but is ultimately subordinate to it and cannot restrict it.
Removing the preface in either case only strengthens the root.
DKK
 
Written By: LifeTrek
URL: http://
And the limits MUST be imposed by the People AND the Courts, for surely the Founders provided no input.
Now you’re into the judicial area of ’the reasonable man’. A reasonable man would not have expected every person to have owned his own cannon - the ’nuke’ of the time - because the cost would be prohibitive and the operation by one individual impractical, and it’s really a bit much to use grape shot on an intruder in your parlor.
I believe the founders would have used the principle of what the reasonable man would expect - a musket, a pistol, a sword, a pike. Those were the weapons of an individual. Crew served weapons were probably not in the venue of the average person.

I’ll go with the idea they would impose limits, but it’s easy (Nuke Neighbor) to come up with ridiculous weapons for your neighbor to own (how bout his own Abrahms?) to invalidate a reasonable argument that you ought to be able to arm yourself with the same personal weapons you are going to come up against in the form of an invading army (owned an operated by your own suddenly tyrannical government, or under a foreign flag). It wasn’t that long ago that the Thompson SMG was sold as a varmint gun (and hence our conundrum today).

To the matter at hand thought -
packing a .38 in a National park is NOT going to gain you much if Ungentle Ben the grizzly decides you look like lunch unless you’re lucky, but it might come in handy if Joe-Bob Whacko decides he’s taken a liking to your gear and your girlfriend. Reasonable people packing heat in a National Park are probably never going to pull their weapon.
People who are going to wave their piece around aren’t reasonable in the first place, are probably already a danger to society, and probably don’t give a sky-hoot if there’s a law against carrying a fire-arm in the park.
 
Written By: looker
URL: http://
Right, Shark, right. When the First Amendment says "the press," it doesn’t mean "the press." After all, we all know there were no newspapers in the 18th Century.

That must mean "the people" identified in the Second Amendment really doesn’t mean "the people." It must mean the militias then, right?
What the f*ck are you off about now? The idea of the press as you’re trying to sell it DIDN’T EXIST back then. You’re going to sit there and push the idea that a bill of rights that explicitly made a guarantee of freedom of spoken speech for the people, then made a guarantee of freedom of printed speech only for a select few known as "the press"? That’s a very unique reading I’ll tell ya pal. In fact, you’re the only one who seems to believe that. Oh hell, even YOU don’t really believe it.

The press = the people. The militia = the people. You = idiot
 
Written By: Shark
URL: http://
Steven Donegal:

This a good enough reason?
 
Written By: Buddy
URL: http://


"There are some critters there that could have you for dinner."

Evidently those critters didn’t exist 200 years ago, since noone seems to think individually owned weapons were necessary for defending home, crops, property, or person from anything other than a government.

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

"to take the phrase "well regulated militia" and construe that to mean "bunch of individuals who have no chain of command, training or organization"


My knowledge of the colonial era is not that great, but from what I have read there was little, if any, training or organization, and chain of command was purely ad hoc. No uniforms, no meetings or drills, no written regulations, no standard weapons, etc.

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

"but can someone explain to me why it’s a benefit to society"

Why must an individual action be beneficial to society?
 
Written By: timactual
URL: http://
It prohibits the government from limiting the freedom of the press. Now, the press is hardly an "individual." Sure, it is made up of individuals, but then so are militias. When one speaks of "the press," one is speaking of a collective entity. Thus the idea that every single right in the Bill of Rights relates only to the rights of the individual, and not the right of colllective entities, is simply false.
So, are you prepared to argue that freedom of the press is a collective right, not an individual one?

The "press" is an activity in which individuals engage. However, if you want to argue that "freedom of the press" is a collective right, not an individual one, I’d say that pretty much makes you the most dangerous man here.

With that argument, you could shut down all bloggers, all community papers, all alternative press, etc. You have merely to argue that ’hey, you already have plenty of press. The Constitution grants a collective right to the press, not an individual one. So, if you aren’t the New York Times, you can go suck it."

That’s precisely the same anti-freedom argument you’re making about the 2nd Amendment. Congratulations, that’s about 12 steps more "fascist" than anything you’ve alleged against the Bush administration.
 
Written By: Jon Henke
URL: http://QandO.net
The militia consists of two parts, the "organized militia" and the "unorganized militia", and the US Code does still recognize the unorganized militia as an entity.[10 USC 311]
 
Written By: SDN
URL: http://
I can understand why someone would choose one interpretation of the amendment and one judicial phisophy over another; different personalities lean toward different approaches.

But I sure can’t understand the need to believe that one’s preference is the ONLY choice possible.
The Founding Fathers were debating the notion of Federalism, pro and con. The right of individuals to bear arms doesn’t even seem to be the main thrust of the amendment, when you read about the history surrounding it. The amendment was a compromise among the most jpassionate views.

The words in the amendment are what they are, but as soon as you get into the area of which is the important clause and which is not, you’re adding interpretation into the mix and opening the subject to debate.
There are plenty of learned legal treatises for every side of current thought. People cite the sources they agree with.

Personally, I suspect that the right to carry arms was just assumed, because people did own guns at the time, with no questions asked. But that’s a personal opinion, not a Constitutional one. I’m interpreting.


 
Written By: Laime
URL: http://
There are plenty of learned legal treatises for every side of current thought. People cite the sources they agree with.
As Dale already pointed out, prior to this century that was not true.
The right of individuals to bear arms doesn’t even seem to be the main thrust of the amendment, when you read about the history surrounding it. The amendment was a compromise among the most jpassionate views.
I have a request, give us a citation. You will not find any evidence of that. I have read books by anti-gun rights scholars and they can never come up with any evidence that that is true, though they imply it repeatedly. It is as if you and I compromised about whether to have Turkey or Goose for Christmas by having a bit of each and later someone claimed we had eaten out. No evidence, they just point out we argued about what to eat, so their characterization of the outcome is just as reasonable as claiming we ate at home. Except it isn’t, we ate at home.
 
Written By: Lance
URL: www.asecondhandconjecture.com
"The press" in the 1st amendment doesn’t refer to people or persons any more than "speech" does... it’s not a very good comparison for this subject.

However,
the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
shouldn’t be interpreted in such a way that individuals lack protection that the assembled group has.
 
Written By: h0mi
URL: http://
LANCE:
My point is that I don’t think the Second Amendmennt was written to directly answer the question: should private citizens carry arms in whatever circumstances they please?"
As I said, I don’t think the question came up, because most people did own and carry guns of some sort at the time of writing, and the question of restrictions did not seem to have come up.

New questions about how to apply the Constitutional precepts to life today arise because new thinking arises over time. I don’t believe anybody can claim with certainty what the Founding Fathers would have thought about modern society in America or how they would have applied their original thinking to modern trends. My opinion is that they would have argued a lot about it; they argued about most everything else. In that regard, I oppose Scalia. I believe that societies evolve as they learn more about the dynamics of their society, just as individuals evolve as they gain experience. I don’t see any reason to assume that if the FF had lived for all these centuries, they would be incapable of assimilating new insights. The original tenets of the Constitution serve extremely well to keep this evolution carefully narrow and conservative,
but it can;t be avoided altogether. To be static is to invite death.
Therein lie all the debates. How can we embrace new ideas without straying from the original intent?
It’s Thanksgiving Day. My children will be here soon. I don’t mean to avoid your question about citing sources, but I will have to do the research after the holidays. I was relying on reading I’d done in the past, but I have a terrible memory for names and titles of books.

 
Written By: Laime
URL: http://
Here’s a different angle: Is anybody aware of any significant figure in the Founding Generation who thought that individual citizens should their weapons forceably taken for them? I’m not aware of a one. Given the nature of life in America in the late 18th century such a thing would have been absurd and laughed at by all.
 
Written By: DS
URL: http://
Laime -
New questions about how to apply the Constitutional precepts to life today arise because new thinking arises over time. I don’t believe anybody can claim with certainty what the Founding Fathers would have thought about modern society in America or how they would have applied their original thinking to modern trends.
Well, believer in democracy that you are, if the Amendment has outlived its usefulness, why not fight to amend it out of existence? If it’s causing us to be so "static" as to "invite death," it shouldn’t be hard to get 2/3 of Congress and 3/4 of state legislatures to agree, should it?

Or do you think that the old way of dealing with the Constitution is also a little too "static"?

Really, why have a Constitution at all, Laime? Why not just a bunch of lawmakers and judges passing whatever can pass 50% plus one? Why have any static restrictions on the power of each branch of the government? Why have a First Amendment, if it can be stretched beyond its breaking point by people who argue that it’s outlived its usefulness or only applies to certain collective entities? Why even have a process for amending that Constitution, if you can do whatever the hell you want through the Elastic Clause and Commerce clause and by arguing that certain Amendments no longer apply, without needing to actually pass an Amendment?
I don’t think the question came up [at the time of the writing of the Bill of Rights], because most people did own and carry guns of some sort at the time of writing, and the question of restrictions did not seem to have come up.
Then what good did they expect the Second Amendment to do? If the question of restrictions on firearms was never under consideration, why pass an Amendment saying "the right to keep and bear Arms, shall not be infringed"?
Therein lie all the debates. How can we embrace new ideas without straying from the original intent?
We don’t have to be slaves to the original intent—they’re long dead and not our masters. But they did leave us a way to change the Constitution if something was just not working for the vast majority of the country. We could amend it if enough people agreed to change the framework of the government by doing something so drastic as changing the supreme law of the land.

So, what’s wrong with that process, Laime?

And doesn’t the very existence of that process indicate to you that the Constitution is not intended to be stretched terribly far, or its parts tossed out as no longer applicable without any process of amendment?
 
Written By: OrneryWP
URL: http://
I still say that the Second Amendment is what it is, with all its clauses, and the argument that the beginning clause should simply be ignored because it is a preamble just makes no sense. Why then add it so conspicuously to this one particular amendment? Those of you suggesting otherwise are just citing anti gun-control advocacy talking piints.

So, the amendment refers both to militias and to the right to bear arms. The only thing absolutely clear about this amendment is that it is NOT CLEAR.

The amendment was written in deference to the prevailing antipathy to raising and maintaining a federal army, This, in turn, arose in reaction to the armies of English monarchs used to subdue citizens. It was written to address the question
of Federalism, not gun ownership.

Regardless of what you or I believe, the Supreme Court unainimously ruled in 1939 in US vs. Miller that Congress has the power to call forth militias to suppress insurrections and repel invsions, but that an indiviual’s right to bear arms outside of the constext of state militias was not granted by this amendment. This ruling has never been overturned and is the basis for gun control laws.

Everything I’ve read in opposition to this ruling enumerates what ’should have been’, i.e., a different ruling. The only way to achieve a different result is to bring a new case before the Supreme Court. If it’s difficult to achieve that, I suggest the culpriit is the ambiguity of the text of the amendment.

Another talking point is that the relevant cases did not arise before the 1900’s. So? New ideas, like new test cases arise when they arise. If the anti gun-control faction succeeds in overturning the Miller ruling, will it be irrevelant because it came about in the 21st Century?

Another point, which I raised myself, is that at the time, it would have been assumed that people carried arms. I would add, however, that in the 1800’s, the type of arms available were usually rifles and muskets. How would that apply to hand grenades or bombs? What, exactly, is covered under the term ’arms’?

There are two separate issues. One is the meaning of the Second Amendment and that will have to be decided in the Courts. The other issue is, even if congress has the power to impose restrictions on gun ownership, what restrictions are advisable?
The issues should be kept separate. and argued separately, in courts and in blogs.
 
Written By: Laime
URL: http://
The amendment was written in deference to the prevailing antipathy to raising and maintaining a federal army, This, in turn, arose in reaction to the armies of English monarchs used to subdue citizens. It was written to address the question
of Federalism, not gun ownership.
Oh it’s a question of Federalism all right. It gives the people the last word in any argument.

All’s I can say is that if the New York Times reading of the 2nd Amendment is correct, then only the National Guard has the rights of freedom of speech, the press, and assembly.

It’s ludicrous to think that when the founders included the phrase "the people" in the 2nd Amendment that they meant something completely different than every other instance of the phrase employed throughout the rest of the document.

yours/
peter.
 
Written By: peter jackson
URL: www.liberalcapitalist.com
I would add, however, that in the 1800’s, the type of arms available were usually rifles and muskets. How would that apply to hand grenades or bombs?
Cannons had been around for several centuries. And actually, early hand grenades (which, given, were not nearly as effective as modern ones, obviously, but that’s true of a lot of weapons) were around well before the Constitution was written.

Anyway, the people who wrote, debated, and passed the Constitution were not fools; everyone knows that weapons get deadlier over time.

But if that factor changes the fundamental usefulness of the Amendment, the solution is not to ignore the Amendment but to pass yet another Amendment indicating that the vast majority of us recognize that sea change and further feel the need to reform in light of new circumstances. I’d have no problem with someone proposing an Amendment saying, in effect, "No private weapons of mass destruction," taking care to define what "mass destruction" entails.
The only way to achieve a different result is to bring a new case before the Supreme Court. If it’s difficult to achieve that, I suggest the [culprit] is the ambiguity of the text of the amendment.
Or, too many judges being sympathetic to the ruling (or, given its age, simply willing to show it deference) so that, if someone’s caught with a gun in DC, her or she is summarily tossed in jail without even the possibility of appealing it all the way to the Supreme Court. Anyway, when’s the last time the Supreme Court’s been populated with enough judges of the type who would hear such a case anyway? Ideologically, I mean.

Take, for example, Roberts. Here’s a judge that many believe is conservative, and in a way, he is. But he’s also indicated a great degree of deference for any Supreme Court ruling that’s been around for a while, because it’s basically become part of the "common law." How many times did the man say the words "stare decisis" during his confirmation hearings?

And that presents a barrier to looking at the Constitution itself—its words, the basic intent of those who formulated and passed the thing, etc.—as the sole, supreme law of the land.
One is the meaning of the Second Amendment and that will have to be decided in the Courts.
I disagree. The courts aren’t accountable enough to the people for me to trust them to take care of the contract we have to establish a government. Letting the government govern itself is rarely a good idea.
The amendment was written in deference to the prevailing antipathy to raising and maintaining a federal army, This, in turn, arose in reaction to the armies of English monarchs used to subdue citizens. It was written to address the question
of Federalism, not gun ownership.
Again I ask: then what was the point? What did they expect the Second Amendment to accomplish, if the principle was ever challenged? Let’s hear a reason.
 
Written By: OrneryWP
URL: http://
There is a lot of factual misunderstanding of history, militias, and gun control.

I have read the argument on both sides, and I confess I do not see anything obvious. Both sides make valid points, but history leads me to believe that the 2nd was about restricting the federal government from prohibiting armed militias.

The facts that lead me to this conclusion are contrary to what many pro-individual right advocates beleive:

1. The Constitution DOES in fact provide for federal control of state militias including what we would understand today and gun registration.

2. There were numerous state and local laws restricting firearms that were never challenged even as the Constitution was ratified. If people believed this were an individual right not subject to state militia regulations, I cannot imagine that these laws would not have been challenged.

If we were to go back not to the argument of original intent of meaning, but rather original practice, all privately owned weapons would be subject to federal regulation, inventory, registration, and care requirements.

Frankly, I prefer the freedom we have now to what the framers apparently intended. I am glad I do not have to meet the requirements imposed in 1790.

So, though I agree that it was intended as a collective right, I prefer the allowance to the individual right.

Cap


 
Written By: Captin Sarcastic
URL: http://
Assume the right to bear arms is not a personal right, but a right to bear arms as part of a militia, with regulation and control of the weapons in the hands of government. How exactly does this protect against an abusive or tyrannical government, which seems to be the accepted justification in this case? Were I in a position of authority in a dictatorial government, I would certainly make sure that all those weapons under government control were removed from the hands of anyone likely to resist. And, since the government has the authority to regulate and control these weapons, and the militia, I could do it legally. Where, then, is the protection against an abusive government?
 
Written By: timactual
URL: http://
"...then what was the point? What did they expect the Second Amendment to accomplish, if the principle was ever challenged? "
===
My GUESS: Being distrusful of a federal army, which might be used to suppress the states, but recognizing the need for defense against invasion, they chose the establishment of citizen militias.
NOthing is clear, however. It’s hard/impossible to find impartial historical analyses; all have an axe to grind about gun control, either pro or con. One would need to devote a good part of one’s life to the search for original documents. Even then, you would probably get what one of the Founding Fathers said, versus another.
That’s why we need the courts to clarify. And we can all argue about judicial activism in the process of clarification.


 
Written By: Laime
URL: http://
My GUESS: Being distrusful of a federal army, which might be used to suppress the states, but recognizing the need for defense against invasion, they chose the establishment of citizen militias.
Humor me, please, and walk me through this.

They didn’t trust a federal army (check), yet in the wake of the failure of the Articles of Confederation they passed Article 2, Section 2...
Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States
... and in order to check against the federal government, they passed an Amendment that would have to be taken to federal court if ever the federal government were to break its word to the states and start prohibiting the bearing of Arms by the militia of any of the several states?

Is that about right? That if the federal government started prohibiting the bearing of arms by the state militia (the same state militia who would answer to the President if called to serve the United States), the state or states affected would have to take it to a federal court to cry foul?

And they worded it like so:
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.
That was their safeguard against the overreach of centralized power?
-=-=-=-=-=-
Captin Sarcastic -
There were numerous state and local laws restricting firearms that were never challenged even as the Constitution was ratified. If people believed this were an individual right not subject to state militia regulations, I cannot imagine that these laws would not have been challenged.
As Cornell Law School’s annotations point out,
Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints.
 
Written By: OrneryWP
URL: http://
Screwed up those last links...
state or private
 
Written By: OrneryWP
URL: http://
"and in order to check against the federal government, they passed an Amendment that would have to be taken to federal court if ever the federal government were to break its word to the states and start prohibiting the bearing of Arms by the militia of any of the several states?"

If the right to bear arms is a state right, where does the Federal gov’t. get the power to pass laws to limit this state right? It sems to me that, whether the right is an individual or a state right, the Federal gov’t. has no power to regulate the right to bear arms.
 
Written By: timactual
URL: http://
Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints.
Yes, I said that... "but history leads me to believe that the 2nd was about restricting the federal government from prohibiting armed militias."

This is my point, I can extend the 2nd to private arms unrelated to militia with respect to the federal restriction, but this would mean that states are free to regulate arms to any degree they like, from total gun bans to registration. Also, if the federal government uses the militia act to require inventories of all private arms, the Constitution provides that authority in the aforementioned articles as well as the Militia Act.

What did they expect the Second Amendment to accomplish, if the principle was ever challenged?
The principal is this:

State militias, though reporting to the federal government, would be much more difficult to order to them into action against their neighbors without good cause. A standing federal army could be used in such a fashion. Also, as long as militias existed, they could be used as a balance of power against a federal force.

This didn’t work out so well in the Civil War (for the Southern States), but it gave them a fighting chance.

The point is, as I see it, the fed can regulate arms to an extent, and states can regulate arms completely, as such, there is no individual right to bear arms. But as a practical matter, there are simply to many guns to regulate, gun control is a political albatross, so we should be safe from gun grabbers.

Cap
 
Written By: Captin Sarcastic
URL: http://
"... so we should be safe from gun grabbers."

How on earth do you think anyone will be "safe from gun grabbers" if there are a lot of them? There are a heck of a lot of traffic law violators, so do you feel safe(from arrest) to run red lights and go 50 mph above the speed limit? If you feel safe because there are a lot of others doing what you are doing, you are living in a fool’s paradise. There are boatloads of drug dealers; how safe are they?
 
Written By: timactual
URL: http://
How on earth do you think anyone will be "safe from gun grabbers" if there are a lot of them?
A. There aren’t a lot of them.
B. There are a LOT of gun owners.
C. The Constitution will not protect you when there are a lot of gun grabbers, but your gun might.

Get it?

Cap
 
Written By: Captin Sarcastic
URL: http://
"Get it?"

I am not sure. I obviously didn’t express my self clearly. I should have said something like "How on earth do you think anyone will be safe from "gun grabbers" just because there are a lot of people who have guns?", which is still not clear.
My point is that you seem to be relying on the statistical improbability of being caught and calling that safety. I call that luck, and it is not something I would want to rely on.
 
Written By: timactual
URL: http://
My point is that you seem to be relying on the statistical improbability of being caught and calling that safety. I call that luck, and it is not something I would want to rely on.
And my point is that this is all your going to get. As I said, the Constitution is not going to protect you, there is simply too much ambiguity in number 2, and we all know people’s opinions on guns direct their interpretation of number 2 (it’s not right, but that’s the way it is) such that if the national sentiment favored serious gun control, the Constitution is not going to stop it.
 
Written By: Captin Sarcastic
URL: http://
The point is, as I see it, the fed can regulate arms to an extent, and states can regulate arms completely, as such, there is no individual right to bear arms.
Two points: first, until just before the middle part of last century, exactly none of the restrictions on government power imposed by the Bill of Rights was legally binding on the states. It wasn’t until then, when the courts decided to re-interpret the implications of those restrictions in light of the 14th Amendment’s guarantee of equality before the law, that the states were constitutionally prohibited from regulating speech, the press, conducting warrantless searches and establishing a religion. Second, there is remarkably little 2nd Amendment case law. The process by which most of the Bill of Rights was "incorporated" was judicial review. No review, no incorporation.

But it’s going to happen. The 2nd Amendment will eventually get the legal attention it deserves and be incorporated. It’s just a matter of time because the anti-gun forces have publicly lost the argument. Falling crime rates occurring simultaneously with the wide-spread passage of concealed carry laws has essentially pulled the premises out from under the entire anti-gun position.

yours/
peter.
 
Written By: peter jackson
URL: www.liberalcapitalist.com
The Equal protection argument relating to number is very interesting, but I disagree with you on the ease of which it could be reviewed and incorporated into 14th Amendment protections. You have to consider not just concealed carry laws and waiting periods, but the implications of a Constitutional mandate prohibiting any government, federal, state, local, from making any laws limiting or interfering with the bearing of arms.

While I agree that individuals being legally allowed to own and carry handguns, I don’t think I would like it people were driving around with .50 caliber machine guns mounted in their pickup trucks and rocket launchers in their back yards.

Maybe we need a Constitutional Amendment that would define and protect small arms ownership and leave allowances for restrictions in larger weapons?

Cap
 
Written By: CaptinSarcastic
URL: http://
"there is simply too much ambiguity in number 2"

I think that is perfectly clear.

Unfortunately, I think I am in agreement with your point. Unwilling, reluctant agreement. Temporarily anyway.
 
Written By: timactual
URL: http://
Time and I agreeing on something is a sure a way as Godwin’s law to kill posting on a topic.

 
Written By: Captin Sarcastic
URL: http://

 
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