Gun Control & RKBA
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randys1
(16,286 posts)allowed the other debate to be about what KIND of ID we can require to vote, when ANY requirement is absolutely unconstitutional.
guillaumeb
(42,649 posts)License. This should be a national thing. In order to receive a driver's license an applicant must prove identity and residency.
randys1
(16,286 posts)But since we know there is virtually no voter fraud
Let me repeat that
NO voter fraud, there must not be an ID requirement.
Not just because it is a poll tax, and it is, but because there is no reason for it.
sorry for the Off topic
guillaumeb
(42,649 posts)When George W. Bush was President he asked the Justice Department to research voter fraud. They could find no measurable voter fraud. But they did not look into the fraud in 2000 Florida that was conducted by his brother, Governor Jeb, and Florida Secretary of State Kathleen Harris. THAT is where the real fraud is. That and not providing sufficient voting machines to people have to wait in line for hours to vote.
randys1
(16,286 posts)guillaumeb
(42,649 posts)That view, which contrasts so sharply with the current interpretation, has a long history. In 1840, the Tennessee Supreme Court captured a widespread understanding in announcing that the real object of the right to keep and bear arms “is the defense of the public” and so refers to “military use.” It follows that a hunter “might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.”
Many commenters at DU, and in the media in general, talk about the recent SCOTUS decision on the Second Amendment as if the decision simply reaffirmed what has been long established precedent. The decision was instead an example of an activist Court supposedly determining "original intent" that contradicts centuries of precedent.
hack89
(39,179 posts)as delineated in the British Bill of Rights of 1690.
Why would they turn around and change their minds? And why would they then add a collective right to a list of individual rights? And why would some of them go home and place in their state constitutions an individual right to bear arms independent of the militia?
It is not as simple as you present it.
guillaumeb
(42,649 posts)And if individual rights had been the paramount concern, why write:
"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."
If individual rights were the issue, rather than the defense of a country with no standing army, and no provision for a standing army, there would be no need for the initial phrase "a well regulated militia" at all. The Founders did not get paid by the word, so any words in the document must be presumed to be there for a specific reason.
hack89
(39,179 posts)it was specifically added to ensure that certain individual rights could not be infringed by the government. Don't they teach civics anymore?
If they wanted to talk about government powers, it would have been added to the main body of the Constitution. People have rights - not governments. The BoR is all about individual rights.
guillaumeb
(42,649 posts)agreed that the right is/was not unlimited. Your individual right to free speech is also not unlimited. Elementary civics.
And I was not taught US civics, but I can read.
hack89
(39,179 posts)Eleanors38
(18,318 posts)Even Alan Dershowitz, who favors repeal of the Second, concedes 2A acknowledges an individual right.
Those who argue the "militia clause" minority position don't want to concede this reality, or even entertain that the federal government was only stating its interest in and reliance upon the broader individual right to keep and bear arms.
Incidentally, the awkward language structure used in the Second is used in some state constitutions to show how a democracy must rely on one right in order to secure other rights. The Second's militia clause, however, is even more subservient in that the feds are relying on the individual RKBA in order for it to exercise a power.
Ghost in the Machine
(14,912 posts)FULL HISTORY of the Bill of Rights.
As the 2nd Amendment reads:
What many people don't remember, or understand, is that *before* The Revolutionary War, we did not have a well trained and regulated "Standing Army" to protect us. *AFTER* the Revolutionary War, we did. Our Forefathers had enough insight to understand that this new "well regulated Militia, being necessary to secure a free State" could become tyrannical and try to take over the Government, so they allowed for the PEOPLE to have the right to keep and bear arms, as a way to defend themselves, and our fledgling Government, against an attempted Military Coup.
Keep in mind that this is just MY interpretation. Why else would they mention a "well regulated Militia", then go on to include the right to the "PEOPLE", as in We, the PEOPLE"... the general populace? Could it be because our Founding Fathers already knew the history of some other countries that banned arms, or other weapons, except for the Military, and those countries experienced Military Coups against a defenseless populace?? This has *always* been MY interpretation, your mileage may vary....
Peace,
Ghost
dairydog91
(951 posts)Claiming "centuries of precedent" would imply that there are Supreme Court cases, dating back hundreds of years, which follow the "collective rights" interpretation. I don't think that there are any Supreme Court cases besides Miller, a 1939 case, which even started to define that right.
As far as state court interpretation, well, the article displays a form of dishonesty which many lawyers are very familiar with. When faced with a blizzard of cases interpreting a particular phrase, cherry pick the cases which support your argument, describe them in great detail ("There are MANY cases which support me"
, and conveniently omit all cases which contradict you. In this particular article, watch the author find one state court case which does support his/her case (the 1840 Tennessee case), while casually omitting, say, Nunn v. Georgia (1846, Georgia state supreme court held that the Second Amendment protected an individual right to bear arms for self-defense).
I wouldn't say whether the Georgia or Tennessee interpretation was predominant, but I do think the unmentioned nature of Nunn discredits the author's attempt to claim that one particular interpretation was definitive. The least they could do with their research is actually offer an honest survey of ALL gun law cases interpreting the scope of "keep and bear arms". All this article (And you!) seem to be doing is going fishing for a favorable case and ignoring contradicting caselaw. Not a great start at offering a compelling definition of the "true" meaning of the Second Amendment.
Edit: And the Nunn court's view of the Second Amendment? Hoo boy, is that a doozy for gun control. "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State." That is, in this view, the Second Amendment does not limit the keeping and bearing of arms to members of the militia; rather, it ensures that everyone has the right to be armed to the teeth so that if the state wishes to create or expand its well-regulated militia, it may draw from its own gun-totin' populace. Super short version: Guns for everyone!
guillaumeb
(42,649 posts)people safer.
Now when you talk about Nunn v. Georgia (1846), let us talk about the reason behind certain language.
The Framers did not provide for a standing army. Hence the emphasis on a militia, and also the requirement that any authorization for military expenditures be of no more than 2 year duration. So when the Nunn Court talked about: " the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State", they were talking about the militia as the representative of state power and defense. Not some "Red Dawn" fantasy of an armed populace resisting their own government.
What Nunn talked about for the state was a reflection of what the Framers intended the Second Amendment to mean.
Rather than centuries of precedent, I should have said centuries of a uniform understanding of the meaning of the language of the Second Amendment. Until Heller, which represents more years of NRA lobbying, buying politicians, and successfully frightening a small, but vocal segment of the US population, there was no talk about unlimited, nearly unregulated gun possession.
dairydog91
(951 posts)What Nunn talked about for the state was a reflection of what the Framers intended the Second Amendment to mean...I should have said centuries of a uniform understanding of the meaning of the language of the Second Amendment.
That uniform understand being, as the Georgia court thought in Nunn, that the Second Amendment prohibited laws which restricted gun ownership by individual members of the public, so as to ensure that if states wanted to form a militia, they could draw from a well-armed populace? Great, but that logic largely dismembers quite a bit of gun control, particularly assault weapon bans and magazine restrictions. It embraces the individual rights approach to the Second. Is this the universal understanding you were talking about?
they were talking about the militia as the representative of state power and defense. Not some "Red Dawn" fantasy of an armed populace resisting their own government.
They were "talking about the militia" in the context of a case in which the court explicitly states that it thinks the Second Amendment protects an individual right to keep and carry arms, regardless of whether or not that individual is currently serving in a militia.
Eleanors38
(18,318 posts)After Heller was filed by, I believe, attorneys from the CATO Institute. If it were up to the NRA, the suit against D.C.'s lurid gun prohibition laws would not have been filed. Correct me if I am wrong, but I believe no justice argued that there was not an individual right to keep and bear arms, only that it comes from different interpretations of the Constitution.
PoliticAverse
(26,366 posts)
virginia mountainman
(5,046 posts)A well balanced breakfast being necessary to the start of a healthy day, the right of the people to keep and eat food shall not be infringed...
Who has a right to food, "a well balanced breakfast" or, the people??? Or food ONLY at breakfast time, when eating breakfast?????
guillaumeb
(42,649 posts)But in spite of the nice picture, what part of "a well regulated militia" do you not understand?
Does it mean the state national guard, or every person who wishes to amass large quantities of firearms because they are deluded enough to think that the arms would allow them to resist the Federal Government?
A well regulated militia is the phrase used by the Founders. Did they put it in to fill up space, or perhaps because they were paid by the word?
gejohnston
(17,502 posts)and everyone provided their own gun.
guillaumeb
(42,649 posts)as actually meaning well functioning?
Switzerland and Israel are examples where every adult is considered to be part of a well regulated militia. Would all gun owners wish to be considered as part of the National Guard, do you think, subject to regular call up and possible overseas service?
If so, as with the Guard, there would be age and physical requirements.
gejohnston
(17,502 posts)and your understanding of how the militaries of those countries is very poor. For starters, Israelis, like many in Europe even today, have a draft.
virginia mountainman
(5,046 posts)reg·u·late (rĕg′yə-lāt′
tr.v. reg·u·lat·ed, reg·u·lat·ing, reg·u·lates
1. To control or direct according to rule, principle, or law.
2. To adjust to a particular specification or requirement: regulate temperature.
3. To adjust (a mechanism) for accurate and proper functioning.
4. To put or maintain in order: regulate one's eating habits.
The Militia as defined by US code...
(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.
jimmy the one
(2,717 posts)va mtn man: A well balanced breakfast being necessary to the start of a healthy day, the right of the people to keep and eat food shall not be infringed...
Who has a right to food, "a well balanced breakfast" or, the people??? Or food ONLY at breakfast time, when eating breakfast?????
Dunno what you think you prove. Couple problems for your breakfast amendment:
1) The people indeed have a right to eat food, as long as it makes for a well balanced breakfast. This becomes problematic in our food supply. Beer & distilled spirits are likely ruled out, as well as too many eggs & sowsage & donuts(???) There are limits as to what one can eat for a 'well balanced breakfast'. Obviously one shouldn't eat dogmeat here in usa, or cats, & jewish can't eat certain non kosher foods etc...
The food people can eat acc'dg to your breakfast amendment must be regulated to maintaining a well regulated, excuse, a well balanced breakfast.
2) Scalia in heller said the individual rkba was needed to 'prevent elimination of the militia', so accd'g to that dickhead, you could eat food so as to prevent elimination of well balanced breakfasts, eh? you tell me.
mtn man posted def of regulate ,which is conspicuously missing 'subject to rules or restrictions' as defined by Webster in 1828:
reg·u·late
1. To control or direct according to rule, principle, or law.
2. To adjust to a particular specification or requirement: regulate temperature.
3. To adjust (a mechanism) for accurate and proper functioning.
4. To put or maintain in order: regulate one's eating habits.
Webster in 1828, more appropriate to our discussion, REGULATE:
1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.
3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.
http://1828.mshaffer.com/d/word/regulate
Eleanors38
(18,318 posts)wherein pre-Revolutionary War militia were called up and required to provide their own rifles, suitable for infantry and in proper working order, with the owner demonstrating his knowledge of its use. The recruit was to provide ammunition as well. Should the recruit show himself not in compliance, he would be issued an arm and ammunition and have his pay docked accordingly.
Any training, drill, and doctrine (often haphazard in those times) were additional measures beyond being well-regulated.
guillaumeb
(42,649 posts)First, you are aware, of course, that the Founders made no provision for a standing army. Thus the necessity for a militia composed of able bodied citizens. Thus also the requirement that any appropriations related to military expenditures be limited to two years duration. Without a standing army, there was no need for a war budget.
You might also be aware that the US currently spends over 1 trillion dollars yearly on a defense budget that supplies an enormous standing army.
If you truly believe in the Constitution, and its Amendments, are you prepared to call on Congress to abolish the military and institute regular training for all eligible people in the US? That seems to me to be the original intent of the Framers.
Eleanors38
(18,318 posts)Article 1 of the Constitution authorizes the creation and funding of a standing military. It also gave the federal government power to call for the militia. The two are not mutually exclusive. If you are implying the government spends too much on the military, I would agree. Again, the Second is neither an individual right (not a stuck-out sore thumb communal/agency right), nor is it a right conditioned by by a federal power (calling for militia). This is the dominant view by those scholars who have studied the Second.
tortoise1956
(671 posts)Here are some links to contemporary uses of the term:
http://www.constitution.org/cons/wellregu.htm
Here is an article talking about playing a well-regulated (well tuned) piano:
http://www.authorsden.com/visit/viewArticle.asp?id=74072
And finally, tuning a piano is still called regulation. Look it up yourself if you don't believe this link:
http://www.ptg.org/Scripts/4Disapi.dll/4DCGI/cms/review.html?Action=CMS_Document&DocID=59&MenuKey=Menu7
Is this enough to convince you that the term well-regulated didn't mean something is tightly controlled, but rather in top condition? That a well-regulated militia is one that is armed and trained so that it can respond to any threats?
Besides, no matter how much you twist words, the term "the people" in the Bill of Rights, that is used to describe individual rights in the 1st, 4th, 9th and 10th amendments, is also describing an individual right in the 2nd amendment. Any attempt to say otherwise has no basis in fact.
Indeed, the "Collective Rights" theory rests solely on a modern interpretation that itself has no rational core that can be defended. A close reading of Miller shows that no one even showed up for the defendant in the original case. If they had, they could have demonstrated quite easily that a short-barreled shotgun was indeed a weapon of war - they were used during the trench warfare stage of WWI. Hell, modern U.S. military shotguns have barrels as short as 14 inches:
https://en.wikipedia.org/wiki/Mossberg_500
So, Miller was a flawed decision based on a one-sided argument. Other than that, there is no legal basis for interpreting the 2nd as a collective right.
I hope this at least spurs you into researching your argument further. I believe that if you do this, you will find for yourself just how thin the ice is that your argument stands on.
guillaumeb
(42,649 posts)well regulated, disciplined militia. And then the clause that talks about how the militia shall be officered.
tortoise1956
(671 posts)There is no article 8. (I know it's quibbling, but sometimes I just can't resist. I know, I know, try harder...)
Two things:
1. Nothing in section 8 talks about restricting weapons to militia members only, and
2. Even if there was verbiage in section 8 restricting gun ownership, it wouldn't matter. The Bill of Rights are amendments to the original constitution, and as such take precedence over anything prior.
I would have thought that Rawle's simple declarative paragraph stating that gun ownership was conceived to be a personal right would have been good enough to carry the day- after all, he was writing this contemporaneously with some of the original founders and authors of the constitution and the BoR. However, since it didn't, I give you these other historical views of the second amendment:
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1421&context=wmborj
Trench Coxe was adamant that the purpose of the 2nd amendment was to ensure that private citizens could arm themselves if they wished to.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1161&context=nulr_online
George Tucker published, in an edition of Blackstone's Commentaries his opinion that the second amendment is indeed an individual right. This link is actually to a paper critical of that interpretation, but I believe that as you read this paper you will see that Justice Stevens' use of a comment Tucker wrote in his (unpublished) lecture notes was incorrect, since it neither jibes with his published works, but actually pre-dates it by 11 years. The real argument-killer, though, is that the comment Stevens quoted was written about section 8 and the militia powers given to Congress. The notes covering the 2nd amendment are in effect an almost exact copy of those published in his work on Blackstone. ( http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1148&context=nulr_online )
https://home.comcast.net/~dsmjd/tux/dsmjd/rkba/story.htm
Jposeph Story laments that Americans are not interested in a well-regulated militia (in the sense that they don't want to put in the time to make it a fully functional organization). He also mentions the rights of citizens to keep and bear arms.
There are other sources, but the are further removed from the founding era, and as such I don't think they are truly representative of the view prevalent when the constitution and BoR were written.
Here is the real question: now that I have provided contemporary sources directly confirming the right to bear arms as an individual right, can you provide even one citation, from the same time period, that directly confirms the 2nd amendment to be a collective right ONLY? I would be very interested in reading any source with that view, but so far I haven't found one that pre-dates the 20th century.
(edited to convert piss-poor typing to plain English...)
jmg257
(11,996 posts)to see just how the people/militias would be organized, disciplined and trained, and how they were to arm themselves for militia duty.
jmg257
(11,996 posts)"...to oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia.."
Under arms.
Trained in military exercises and evolutions - a lot.
= a degree of perfection =well-regulated.
aikoaiko
(34,202 posts)Regardless of its meaning, its not about controlling the people's right to keep and bear arms from which a well-regulated militia can be drawn. But see OED entries below; #2 addresses regulated troops.
1. Properly controlled, governed, or directed; subject to guidance or regulations. Also: adjusted in response to, or in order to conform to, a principle, standard, set of circumstances, etc.
Freq. with modifying word, as badly-, best-, ill-, well-regulated, etc.
1615 T. Tuke Christians Looking Glasse 70 Hee that loues God truely, and with a well regulated loue will loue God, chiefly for God himselfe.
a1631 J. Donne Serm. (1957) III. 243 How Matrimonially soever such persons as have maried themselves may pretend to love,..yet..all that life is but a regulated Adultery.
1697 J. Woodward Acct. Relig. Societies London in Earnest Admon. Young Persons 142 Those regulated Societies, which are now..conspicuous among us for many good Works.
a1704 T. Brown Ess. Satire Ancients in Wks. (1730) I. 16 These [verses]..had regulated forms, that is regular dances and musick.
1731 tr. Winter Evening Tales xvi. 238 Even in the best regulated families some petty Quarrels will arise.
1766 Compl. Farmer at Surveying, Then may you measure all the whole chains by your regulated chain.
1828 J. M. Spearman Brit. Gunner 336 They are fired with a regulated charge of powder and shot.
1838 Jrnl. Statist. Soc. London 1 358 Many [schools]..are close, filthy, ill-regulated, and the teachers utterly unqualified for either teaching or keeping the children in order.
1897 T. C. Allbutt et al. Syst. Med. IV. 621 Regulated exercises, such as the gentle climbing, especially in mountain districts, known as the terrain cure.
1946 G. Wilson Fidelity Folks 54 He stoutly maintained that a regulated open saloon was to be preferred to the evils of moonshining and boot-legging.
1961 Econ. Bot. 15 357 Contact between the refrigerated plates and packaged product is maintained under regulated pressure.
2008 Daily Mail (Nexis) 8 Oct. 91 We need only to look at banking to see what can happen in a badly regulated industry.
†2. Of troops, an army, etc.: properly organized; formally constituted into a professional body. Also fig. and in figurative contexts. Obs. Cf. regular adj. 7.
1650 T. Fuller Pisgah-sight of Palestine iv. iii. 45 Fight they durst not, being a multitude of undisciplin'd people, of all ages and sexes, against a regulated army of their enemies.
1690 London Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.
1714 J. Pointer Chronol. Hist. Eng. II. 461 The Muscovite Army was above 100000 Men, and the Swedes but 20000 Regulated Troops.
1769 J. Brown Dict. Holy Bible II. 487/1 What regulated troops of vigilant, active, and courageous ministers, armed with the sword of the Spirit, which is the word of God.
1816 J. Aikin Ann. Reign of George III II. 253 On November 15, the Janissaries, who had massacred the principal officers of the regulated troops, scaled the walls of the seraglio.
guillaumeb
(42,649 posts)the Constitution DO explain what is meant by the term, and how it is to be applied.
Heller was an example of judicial activism divorced from all precedent at the SCOTUS level.
jmg257
(11,996 posts)Of individuals; divorced from the orginal militia intent, things like AWBs and mag limits are being upheld in CT & NY. Such rulings may have been a bit harder to make if say the Miller decision (protected arms are those with a "reasonable relation to the preservation or efficiency of a well regulated militia" was used by the courts instead.
guillaumeb
(42,649 posts)jmg257
(11,996 posts)
GGJohn
(9,951 posts)Find the picture you want to add, highlight the address bar in the upper left hand corner of the screen, push Ctrl and C at the same time, go to where you want to add the pic, push Ctrl and V, and viola, your picture is added to your post.
guillaumeb
(42,649 posts)GGJohn
(9,951 posts)I find it a lot easier to do it that way than the whole rigamarole of cut and paste.
Lurks Often
(5,455 posts)Link: http://www.constitution.org/cons/wellregu.htm
The definition at the link is from the Oxford English Dictionary published during the time period the 2nd Amendment was being written.
It took all of 5 seconds to find with an internet search. Your inability to do the same search or recognize any definition that doesn't fit your biased view is one of the reasons the gun control extremists have been losing for the last 20 years and will continue to lose for the foreseeable future. Put more simply, the majority of Americans are seeing through the lies and the increasingly shrill & pathetic arguments of the gun control extremists.
guillaumeb
(42,649 posts)From the US Constitution:
Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Note that this is not the entire Article, but just that part that refers to defense, the necessity of having a NON-STANDING army, and the militia.
Note the three expressly enumerated functions of this militia:
First, to execute the Laws of the Union,
Second, to suppress insurrections, and
Third, to repel Invasions.
Next, the Article talks about organizing, arming, and disciplining this militia that functions, of course, in place of an army that does not exist for the Framers. Note also that this militia is to be trained according to the discipline prescribed by Congress.
By my biased, shrill, and pathetic arguments, I would argue that it is your interpretation that sacrifices history and logic in support of your desire to self arm and self protect against all of your enemies, real and imagined.
.
-
Lurks Often
(5,455 posts)Why do gun control extremists always change the subject when faced with an answer that doesn't fit their narrative?
I'll save you a lot of time, I find no merit in your argument that the 2nd Amendment only applies to the militia.
guillaumeb
(42,649 posts)And well regulated means regulated. If the Framers had written "an unregulated militia" I moght agree with the NRA position.
And if the militia simply referred to all able bodied people the Amendment could have simply read "The right of the people to keep and bear arms shall not be infringed". But the words "well regulated" and "militia" ARE in the wording. The plain fact here is that the Robert's SCOTUS reading of the Second Amendment is what the GOP likes to call "an activist judiciary".
And remember that even the Heller decision stipulates that the right to bear arms is not unlimited. The NRA ignores this, but the language IS in the Heller decision.
Eleanors38
(18,318 posts)Folks in town to see RKBA as an individual right, not some "right" conditioned by a federal militia power, or occuring to some entity or agency unique exception to the rest of the enumerated rights. Had that some how been the case, the framers would have specified what entity held that right.
You wouldn't by chance be using the "NRA ___________" as a means of negatively characterizing all views contrary to yours?
guillaumeb
(42,649 posts)If your opinions closely or completely follow the NRA talking points that I can read at the NRA site, I can either assume that you are getting your arguments from the site, or that it is simply coincidence.
I am not judging you or your views. I simply disagree with the NRA view of the Second Amendment, a view that is currently shared by the Robert's SCOTUS.
Lurks Often
(5,455 posts)and while Heller was a 5-4 decision overall, 8 of the 9 Justices also stated in their written legal opinions, that the 2nd Amendment is an individual right.
aikoaiko
(34,202 posts)Trotting out the ramblings of a retired justice doesn't mean much.
The question of individual versus collective right was ambiguous but settled by Heller.
The Bill of Rights protects individual rights and civil liberties. And yes no right is absolute.
ileus
(15,396 posts)guillaumeb
(42,649 posts)Eleanors38
(18,318 posts)
jimmy the one
(2,717 posts)Hey guillaume; there are too many 2nd amendment mythology misconceptions & half truths on this thread, & I don't want to devote an hour or two just to have my replies to the misconceivers buried in the middle, so for better exposure I'm going to reply to your OP with the offender's names.
Eleanors: Even Alan Dershowitz, who favors repeal of the Second, concedes 2A acknowledges an individual right.
Dershowitz believes 2ndA originally was to protect an individuals right to own guns in militia; Dershowitz noted the Founding Fathers spoke of the nation maintaining a "well-regulated militia," .. "We have tried an experiment for the last 250 years and it's failed miserably and we have to start a new approach. The new approach has to be guns should not be available to people generally, except if they have a significant need.
..some dershowitz 2ndA quotes (dersh also defended oj simpson, boo dersh the money minded):
"Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard...They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
Ha! there are 2 clauses + a conclusion in dershowitz' remark above. First clause 'Foolish liberals who are trying to read the {2ndA} out of the Constitution...' and Second '..by claiming it's not an individual right..', then his conclusion 'They're courting disaster by encouraging others to use the same means..'
Dershowitz is not arguing above that 2ndA is an individual rkba. He is simply admonishing 'foolish liberals' for using the militia argument to make any headway in the gun control debate. He is advising liberals to avoid making the 'not an individual right' argument.
wiki: Dershowitz supports repealing the {2ndA}, but opposes the judicial system to read it out of the Constitution because it would open the way for further revisions to the Bill of Rights and Constitution.. "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like
dershowitz: Jul 27, 2015 What is needed is some very tough legislation both on the federal and state level to make it much, much harder to get guns and to create a presumption against gun ownership instead of a presumption in favor of gun ownership, consistent with the well-regulated militia language of the Second Amendment,"
".. if you want a gun you should have to go to official authorities in the govt, you should have to be able to justify your need for a gun on self-defense grounds or if you want to be a hunter.. you give it back when you finish hunting,"
"If I could write the Bill of Rights over again, I would skip amendment number two. We're the only country in the world that puts in our Constitution the right to bear arms. It's an absurd thing to be in our Constitution, but it's in our Constitution. http://www.newsmax.com/Newsmax-Tv/Alan-Dershowitz-Louisiana-Shooting-Trainwreck/2015/07/27/id/659156/
friendly_iconoclast
(15,333 posts)Do you also agree with his stance on the Eighth Amendment?
https://www.google.com/search?q=dershowitz+torture&ie=utf-8&oe=utf-8#q=alan+dershowitz+torture
guillaumeb
(42,649 posts)"interpretation". Some people interpret the Second Amendment as an individual right unconnected to a militia.
I disagree with that view. I disagree because it rests on the argument that the plain words of the Amendment, read with the words of the Constitution as they relate to the militia, make quite clear that the militia is to serve as the non-standing defense force of the US, and further that the right to keep and bear arms is directly related to being in a well regulated militia.
Nothing in the Second Amendment can be construed as conferring a right to carry rifles or other arms around during peacetime. The function of the militia is spelled out in the Constitution. Personal defense is not one of those enumerated functions.
Again, my interpretation.
jimmy the one
(2,717 posts)guillaume: I disagree with that view... and further that the right to keep and bear arms is directly related to being in a well regulated militia.
I essentially agree as well, but moreso with the 'militia centric' view, which is kind of in between the pure militia view & the individual. Militia centric means the militia was at the heart of 2ndA, but there was no problem with people individually owning guns in 1791 when 2ndA enacted. Centric means revolving about something, here the militia. I think this is what dershowitz means when he says that people have an individual right to own guns to belong to militia.
PS: the nra & gun lobby hate the militia centric view.
Nothing in the Second Amendment can be construed as conferring a right to carry rifles or other arms around during peacetime. The function of the militia is spelled out in the Constitution. Personal defense is not one of those enumerated functions.
I know. But gun ownership was certainly allowed, but not part of any 2ndA 'right'.
2ndA's been subverted by the supreme court & given this 2nd amendment mythology.
guillaumeb
(42,649 posts)the Bill of Rights. Both talk about the essential function of the militia, and the Second Amendment, dealing specifically with guns, also relates the guns to the militia.
I understand your view that gun ownership was allowed de facto. The Second Amendment added the de jure basis.
ileus
(15,396 posts)friendly_iconoclast
(15,333 posts)jimmy the one
(2,717 posts)hack: Yet the founding fathers, as Englishmen, enjoyed an individual right to bear arms as delineated in the British Bill of Rights of 1690.
More 2nd amendment mythology (& was 1688 or 89); scalia wrote similar about the English 'have arms' decree in 2008 heller decision, only to be chastised by a consortium of 21 british scholars (most living in USA, some American):
british scholars: THE SUPREME COURT SHOULD REEXAMINE PRIOR FINDINGS IN LIGHT OF SOUNDER SCHOLARSHIP WHEN INTERPRETING RIGHTS IN THE CONSTITUTION
Amici Curiae are scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history.
Amici Curiae have an interest in the Court having a well-informed and accurate understanding of the Anglo-American tradition to “have arms” from which {2A} originated
The “have arms” provision in the English Declaration of Rights, which was later codified as the Bill of Rights, provided two protections to the individual. First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders. Second, the grant of a right to “have arms” was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of “self-preservation” and “resistance” should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.
...the {US Supreme} Court examined the English Declaration of Rights of 1689, correctly finding that the right to “have arms” in Article VII is the basis of the right enshrined in the Second Amendment. The Court also correctly recognized that the SecondAmendment right to bear arms was an individual right to have and use arms for “self preservation and defense” as in its English predecessor.
However, contrary to discredited scholarship upon which Heller relied {to wit, joyce malcolm}, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or usearms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm.
Accordingly, the right to own or use arms for private purposes is not a right deeply rooted in our nation’s tradition, and should not be incorporated as against the states by the 14th Amendment. http://docplayer.net/1918043-Supreme-court-of-the-united-states.html
The Court “throughout its history has freely exercised its power to reexamine the basis of constitutional decisions.” That the Heller decision is recent only weighs in favor of quick action by the Court to correct its error of historical interpretation.
As set forth below, reconstructing the historical meaning of the right to “have arms” deserves better than Petitioners’ selective reading and mischaracterization of Blackstone’s reference to the “natural right of resistance and self-preservation,” http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistorians.authcheckdam.pdf
Indeed, after receiving this horrific news after posting bogus info in heller, scalia removed any reference to the british have arms being an individual rkba, in subsequent McDonald.
guillaumeb
(42,649 posts)As I responded to your previous post, and as I have previously responded here and elsewhere, the right to keep and bear arms was a collective right. Having no provision for a standing army, the Framers intended that a militia function as the means of defense against external aggression.
Your post said it with far more research and citation than my own.
Thank you.
jimmy the one
(2,717 posts)dairy dog posted: And the Nunn court's view of the Second Amendment? Hoo boy, is that a doozy for gun control. "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State."
{dairy dog remarked}: .. rather, it ensures that everyone has the right to be armed to the teeth so that if the state wishes to create or expand its well-regulated militia, it may draw from its own gun-totin' populace..
By 1846 the schism between individual & militia rkba was in progress, the individual rkba was generally viewed as from scofflaws wanting to avoid militia service. To cite the radical Nunn case is disingenuous for a full view of the situation then, singles out a slave owning southern chief justice. You want stars & bars back too dairy dog? (nickname for confederate battle flag, guillaume, compare stars & stripes = US).
Tennessee confined rkba obviously for common defense, disallowing blacks:
Tennessee: 1796: "That the freemen of this State have a right to keep and to bear arms for their common defence."
1834: "That the free white men of this State have a right to keep and to bear arms for their common defence."
(enacted 1870). That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.
the atlantic: The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment.
The Supreme Court cited Nunn in District of Columbia v. Heller, for the first time in over 200 years, that {2A} protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public. ... http://www.democraticunderground.com/1016133712
In the North, publicly carrying concealable weapons was much less popular than in the South. In 1845, New York jurist William Jay contrasted “those portions of our country where it is supposed essential to personal safety to go armed with pistols and bowie-knives” with the “north and east, where we are unprovided with such facilities for taking life.” Massachusetts was not unusual in broadly restricting public carry. Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon, and Pennsylvania passed laws modeled on the public-carry restriction in Massachusetts ...
http://www.theatlantic.com/politics/archive/2015/09/the-origins-of-public-carry-jurisprudence-in-the-slave-south/407809/
guillaumeb
(42,649 posts)When talking about Southern Courts, it is also important to note that in colonial America, and during the early years of the US Empire, there were no organized police forces. Thus the idea that Southern white males must carry guns arose out of the concept that all Southern white males were part of the slave patrols. (I believe that South Carolina was where this originated.) These armed patrols later became the nucleus of many Southern police forces.
So this so-called individual right was not in fact a universal individual right, but arose from the necessity of free white Southern males being part of the slave patrols. And these slave patrols were not designed to repel external aggressors, but to control the slaves.
jimmy the one
(2,717 posts)lurks often: What part of "well regulated" don't YOU understand?
Link: http://www.constitution.org/cons/wellregu.htm
The definition at the link is from the Oxford English Dictionary published during the time period the 2nd Amendment was being written.
The BIG problem lurks-often has is that, it is simply oxford using 'well regulated' in sentences, oxford is NOT providing a definition of what 'well regulated' meant. Just lifting out examples of well regulated being used in sentences proves little re 2ndA, since the term can indeed be used in a few ways. Lurkso also is not really citing oxford, but a blogger, one brian halonen, selectively choosing sentences - he appears on google on several pro gun sites.
If you wanted a contemporary definition of 'regulated', lurkso, why didn't you use websters' 1828 dictionary?: REG'ULATED, pp. Adjusted by rule, method or forms; put in good order; subjected to rules or restrictions. http://1828.mshaffer.com/d/word/regulated
lurkso: It took all of 5 seconds to find with an internet search. Your inability to do the same search or recognize any definition that doesn't fit your biased view
You should spend more than 5 seconds before you post biased pro gun links, your constitutional society link is headed & founded by a right wing nutjob, jon roland
Roland - His awareness of the growth of tyranny was aroused by reports of the trial of Randy Weaver Ruby Ridge case, and then burnout of the Davidians near Waco, Texas
Jon Roland, 66
When a militiaman claims the federal govt is trampling the Constitution, he might have Jon Roland to thank for his reasoning. In the mid-1990s, Roland founded the Constitution Society, a Patriot organization whose website assembles writings on all manner of constitutional issues, including a section on the alleged right to assemble a militia.
The site also delves into the world of conspiracy theories by providing links to sites questioning the Oklahoma City bombing and the role of researchers in creating the HIV virus. It even includes a section on mind-control technology.
guillaumeb
(42,649 posts)by arguing about the meaning of the word "is"?
Interesting research on the source for the argument about what "well regulated" means, or meant.
jimmy the one
(2,717 posts)guillaume: Interesting research on the source for the argument about what "well regulated" means, or meant.
They're adhering to the pro gun canard that 'regulated' circa 1791 simply meant disciplined &/or orderly, with no proscriptions or restrictions on guns per se - creating the individual rkba-snbi canard.
Imagine: An orderly militia, being necessary for the security of a free state, the right of the people to keep & bear arms snbi.
Strikes fear in the heart of any old tyrannical govt, wouldn't it? parading militia men marching in unison down the middle of the streets to fight.
The articles of confederation, in force during the rev-war, had this 'have arms' decree:
Art VI of the Articles {of confederation} stated in part: “…Every state shall always keep up a well-regulated and disciplined militia, sufficiently armed…and shall provide…a proper quantity of arms…”
If 'well regulated' simply meant 'disciplined', adversaries, wouldn't the articles of confederation be redundant in using the 'and' word between them in the have arms decree?????
guillaumeb
(42,649 posts)The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this
"and provide for the common defence" How, with a militia.
The same militia that is called forth to execute the Laws of the Union, suppress Insurrections, and repel Invasions.
"To provide for organizing, arming, and disciplining, the militia". Pretty well explains the function of a militia, and who controls it.
Note that this is not the entirety of Article 8.
http://www.archives.gov/exhibits/charters/constitution_transcript.html
jimmy the one
(2,717 posts)eleanors: .. the awkward language structure used in the Second is used in some state constitutions to show how a democracy must rely on one right in order to secure other rights.
Baloney as applied to 2ndA. It protects us from nothing, secures us nothing that we couldn't obtain if it were repealed tomorrow. I renounced 2ndA years ago & could still go out & buy a firearm by passing the background check, there's no 2ndA check to buy a gun.
2ndA is obsolete & worthless.
eleanors: The Second's militia clause, however, is even more subservient in that the feds are relying on the individual RKBA in order for it to exercise a power.
Huh? baloney again to the subservient thingy; in 1825 revised 1829, quaker Wm Rawle wrote a treatise on the 2nd amendment, where he clearly referred to the militia clause as a proposition, and the individual clause as a corollary to the militia proposition.
A corollary is something which is derivedfrom a higher rule or law.
Wm Rawle, 1825: In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed http://www.constitution.org/wr/rawle_10.htm
Who ya gonna believe? wm rawle of the times, or eleanors a latter day aint?
guillaumeb
(42,649 posts)The Second Amendment of the United States Constitution reads: "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."
WHY is the well regulated militia necessary to the security of a free state?
Because it is meant to serve as the primary land defense of that state. Given that the US has a standing army, that would seem to eliminate the need for a militia, and also eliminate the dependent right to keep and bear arms.
jmg257
(11,996 posts)and them being obsoleted, when they were redefined with the creation of the National Guard. The NG became the "well-regulated militia", while the rest of We, the people get the bone of being in the "unorganized militia", which is hardly well-regulated.
Clearly the people feel that the constitutional 'well-regulated militia' is no longer thought to be the best security, a federally controlled and armed select militia, backed by a huge kick ass army and navy, is.
guillaumeb
(42,649 posts)Also the fact of a standing army seems to violate the Constitution. There was no provision for a standing army at all, only a navy that was designed for self protection, not power projection.
jmg257
(11,996 posts)Kind of seems the people can make new laws, or at least change/tweak the existing ones, regardless of what the constitution says, its original intent...even regarding something once deemed necessary!.
makes sense to me.
tortoise1956
(671 posts)Especially when he states that the 2nd amendment is the fallback in the unlikely event of a state government trying to disarm its citizens. From the link below:
"The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
http://press-pubs.uchicago.edu/founders/documents/amendIIs9.html
It took me less than a minute to find this link. I'm surprised that you, with your extensive time spent researching this topic, missed it. Surprise, surprise...
GGJohn
(9,951 posts)and then he'll launch into a meaningless word salad that will either put you to sleep or so confuse you, you'll just quit reading it.
beevul
(12,194 posts)
We do like to drop a few coins on the few occasions we get to Nevada on business.
jimmy the one
(2,717 posts)tortoise: It took me less than a minute to find this link. I'm surprised that you, with your extensive time spent researching this topic, missed it. Surprise, surprise...
I'm well aware of Wm Rawle's entire treatise on 2ndA & have been for nearly a decade; I divide it into two halves, a domestic half & a foreign half.
tortoise: {Rawle} states that the 2nd amendment is the fallback in the unlikely event of a state government trying to disarm its citizens: {Rawle} No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
Rawle wasn't perfect in his 'View of the Constitution' written 1825 rev 1829. He also espoused states had the right to secede. If you want to argue Rawle was incorrect in his proposition - corollary remark based on the paragraph you cited, go ahead, but he is supported by Benjamin oliver & joseph Story about the same time.
I read Rawle's last sentence above as his early construction of incorporation, applying the protection of 2ndA to the states (of course not the limitation on congress). He also is equating the people with the militia. The proposition corollary remark was a contemporary observation, the 'restraint on both' remark an opinion, since nothing like that had occurred yet. Scalia used faulty dialectic reasoning to reach his heller interpretation of rawle there.
Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The {2ndA} declares ‘the right of the people to keep and bear arms shall not be infringed.’ The reason is, ‘because a well regulated militia is necessary to the security of a free state.’
. . . The provision of the Constitution declaring the right to keep and bear arms was probably intended to apply to the right to bear arms for such {militia related} purposes only, and not to prevent Congress or legislatures from enacting laws to prevent citizens from going armed. A different construction however has been given to it.” (1832)
Scotus Justice Joseph Story, 1833: The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. .... The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html
Which clause was Story writing of in the last sentence? the militia clause of course, since 'the people' would still be well enough equipped with guns, if the militia system was discarded.
Note in my first cited paragraph by Story, he praises the militia for essentially the same things he praises 'the people' for, thus providing a militial link to both.
tortoise1956
(671 posts)I had never heard of Benjamin Oliver before I read this one. Thank you for the information, and for not responding in kind to my snarkiness.
However (isn't there always a however), he is the lone voice in support of collective rights view of the second. Justice Story says nothing that would lead one to believe he didn't see the second as an individual right, even if it was in support of the militia clause. As a matter of fact, his fear of the people being disarmed (as you stated above) would seem to be coming true, although not in the manner he foresaw.
Once again, thanks for the info on Oliver. I may have to buy his book, along with some others I have become acquainted with over th past several weeks.
jimmy the one
(2,717 posts)tortoise: (Benjamin Oliver) he is the lone voice in support of collective rights view of the second.
And you can post even one reputable contemporary single voice in support of an individual rkba disconnected from militia service? Pls do.
tortoise: Justice Story says nothing that would lead one to believe he didn't see the second as an individual right, even if it was in support of the militia clause
He certainly did, observe:
Story excerpted: .. among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.
Isn't that clear enough that justice Story thinks the American people should be 'duly armed' within the organization known as the militia?
Note in my first cited paragraph (below) by Story, he praises the militia for essentially the same things he praises 'the people' for, thus providing a militial link to both.
Scotus Justice Joseph Story, 1833: The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. .... The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html
tortoise: Justice Story says nothing that would lead one to believe he didn't see the second as an individual right, even if it was in support of the militia clause
Justice Story certainly did support the militia interpretation. Note below, he says American people want to be 'rid of all regulations', then immediately follows that with 'How it is practicable to keep the people duly armed without some organization, it is difficult to see.' The regulations were within the militia of course, without which it would be difficult to keep the people duly armed.
Story then says: There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Which clause was Story writing of in the last sentence? the militia clause of course, since 'the people' would still be well enough equipped with guns, if the militia system was discarded.
tortoise1956
(671 posts)Rawle, Story, Tucker- all of them said the 2A was an individual right, and not dependent upon being in the militia. Story said that this right was integral to maintaining a well-regulated militia, but when he also said it was a right of the citizens to keep and bear arms He didn't say it was only as a part of the militia.
I also disagree with your assumption that he meant the militia clause - it could just as well have been second clause in the amendment that he was referring to. It would make more sense if it was, since the first clause in the amendment is simply one reason why the right is important, while the second part is the description of the right that affords the "protection intended by this clause of our National Bill of Rights."
jimmy the one
(2,717 posts)Last edited Tue Nov 3, 2015, 12:41 PM - Edit history (1)
tortoise: Rawle, Story, Tucker- all of them said the 2A was an individual right, and not dependent upon being in the militia.
Where have they said this? post excerpts where these 3 'clearly' conditioned 2ndA as an individual rkba disconnected from militia. You are under a severe misconception, I suspect due to 2nd amendment mythology syndrome.
If you are citing scalia spinning that they believed it was an individual rkba, then you are adhering to far rightwing ideology; scalia is demonstrably wrong about that, at best for him there is ambiguity not clarity. Scalia also used the expedient definition of 'the people' to make invalid rulings.
tortoise: Story said that this right was integral to maintaining a well-regulated militia, but when he also said it was a right of the citizens to keep and bear arms He didn't say it was only as a part of the militia.
You confuse dialectic reasoning to prove your case, no can do here. Story uses 'the people' synonymously with 'the militia':
Story excerpted again: .. among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.
If story believed there was an individual right to keep & bear arms disconnected from militia, his above sentence would be contradictory to that belief - 'the people' then could be 'duly armed' by simply owning guns with no militia obligation. But that is what story is worried about, that 'the people' simply owning guns outside militia would NOT be duly armed without some organization/militia.
tortoise: I also disagree with your assumption that he meant the militia clause - it could just as well have been second clause in the amendment that he was referring to. It would make more sense if it was, since the first clause in the amendment is simply one reason why the right is important, while the second part is the description of the right that affords the "protection intended by this clause of our National Bill of Rights."
No you are wrong. In his last sentence below Story is referring back to the top of that paragraph - 'the importance of a well regulated militia'. He then goes on to say that 'indifference' to militia 'may lead to disgust, and disgust to contempt, and thus gradually undermine all the protection intend by this clause of {2ndA}'.
If he was referring to the rkba clause (2nd clause) as you suggest, it doesn't make sense; since 'the people' would still have the 'right' to individually bear arms outside of militia - what is stopping them?
story in context, early 1800's: And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html
You are contending that 'indifference' & 'disgust' & 'contempt' of militia would somehow 'gradually undermine all the protection intended' by the clause 'the right of the people to keep & bear arms shall not be infringed'. That's a bit of a stretch. Gun owning americans who opted out of militia duty still owned their guns, yes?
Even militia scofflaws in the early 1800's were generally better armed than americans who fought in the rev-war, since the two armories were in existence by the early 1800's, & guns were more plentiful.
tortoise1956
(671 posts)First, my apologies for taking so long to get back on this. Many things going on, and my time seems to be even more limited as I grow older. But enough of my whining...
If you read the very first paragraph of the dissent in Heller, you will see that all justices agreed that the second amendment detailed in individual right.
Your Story quote left out the section immediately above that:
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
Damn inconvenient, I know. He is stating - clearly - that the right to keep and bear arms is a right of the citizens. Not militia - citizens. With that in mind, how can you still say that he didn't believe the second amendment was an individual right? Yes, he discusses the importance of militias in keeping tyrants form usurping power, but there is nothing in his writings that ties the second amendment to militia members only.
As for your request to show where they said it was clearly disconnected form the militia - if the above doesn't satisfy you (which I am beginning to think is impossible), I will admit defeat if you show any documents from the above writers that clearly state that the second amendment ONLY applies to militia members. That would indeed make it a collective right, and dependent upon militia membership.
discntnt_irny_srcsm
(18,577 posts)...the Militia Act of 1903 (an update to the Militia Act of 1793) identifies the militia as follows:
We are all the Militia. Unless you have joined the National Guard, you are a member of the Reserve Militia.
Tenche Coxe: "Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." (emphasis mine)
tortoise1956
(671 posts)Here is the problem:
If they ever legitimize the spurious line that the second amendment depends on being a member of the militia, then what is to stop them from agitating for a change to federal regulations concerning the militia? Suppose they are able to influence enough politicians to modify federal code so that there is no reference to militia anymore, or so that the militia only consists of members of the National Guard? Not all that far-fetched, really. And once they do that, they would argue that the second amendment is null and void since there is no more militia. Besides, the cutoff age for the Militia is 45. That means I am no longer a member, so if the rules change, would I then be ineligible to own my own firearms?
I may be a little paranoid, but after some of the crap (and bald-faced lies) that have been put forward recently, I am beginning to believe that the gun-control forces will stop at nothing to get their way.
discntnt_irny_srcsm
(18,577 posts)...which reflect the intent of the Founders, that that the RKBA is a personal right unrestricted by the need for service in an organized non-reserve militia. Per Federalist #46: "To these would be opposed a militia amounting to near half a million of citizens with arms in their hands..." the plan, intent and the weight of the history of its actual implementation shows the RKBA to be an individual right unconnected to any formal militia service. Recent SCOTUS rulings have echoed the same.
A new law and any changes to existing laws attempting to redefine the militia or codify restrictions according to the letter of that wording would meet with opposition from not only those 45 and older but also those gun owners who are female. It has been a stated intent from both pro-rights and pro-control sides of this debate to identify with the spirit of the law consistent with the plan of the Founders. The fact that the pro-rights interpretation is gaining credibility and a history of case law congruence, I'm sure, frosts their collective cookies but makes mostly for efforts on their part to "blame" some faction they seek to vilify, be that the NRA, the far right, old white men, the Boy Scouts, the Girl Scouts or their 1967 Home Ec class.
IMHO most of these efforts seek to build political support for candidates and incumbents by finding a point of difference between them and their opposition and taking a countering position to that opposition. If a Republican opponent declared his/her favor for plastic bottling, it would be considered (and rightly not dismissed) by the Democratic opposition whether to espouse the glass bottle wherever feasible.
jmg257
(11,996 posts)10 U.S. Code § 311 - Militia: composition and classes
(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.
(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, § 1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, § 524(a), Nov. 30, 1993, 107 Stat. 1656.)
Sure - the rest of we the people are all part of "A Militia", but we are not "Well-regulated", so no longer the Constitutional Militias as referred to in Article 1 or the 2nd, nor in the original Militia Acts. These days the regulated Militias (NG) are indeed much closer to the select militia as described by Hamilton in #29.
"The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."
discntnt_irny_srcsm
(18,577 posts)...in connection to a Militia. In recalling also the Founders objective by recognizing nearly all adults (meaning full adults as the rights of females and many people of color were less acknowledged than they are now) of majority age as militia, fused to the growing political, economic and military norms and fundamentals for the new nation of having the tightest bond possible between the common man and the serviceman. A bond that would guarantee the civilian view of a serviceman being a friend, a neighbor and, by extension, himself and the same view from a serviceman's perspective of the civilian.
Consider the quote from JFK:
How unfair would it be to, while knowing a military draft is possible and has recent precedent, to deny those subject to it the option to gain basic skill with the arms to which they would be required to use? To identify arms as a right (that which is due to anyone by just claim, legal guarantees, moral principles, etc.) and then demand a service to permit the exercise of the right, is to harmfully divide the people into more and less privileged groups. Such actions are counter to the goal of having a body of people with some measure of skill at arms from which to raise an army and completely against the essential idea of a right.
Would a serviceman charged with any aspect of securing tyranny be motivated to that action knowing could also be the subject of tyranny in a short time?
I know that in making 'well regulated' a part of the 2A, that the Founders sought to have an effective militia, one that could suppress a rebellion or repel an invasion, would require rifleman. Such skills are often the result of extensive experience and acquired most and best by those practicing regularly. Not based on their being pressed into service but simply as amateurs, maybe competitively or perhaps as hunters.
I refuse to accept the 'notion' of necessity that a "right" be predicated upon service to the state, not the RKBA, not for freedom of speech nor for the right to vote.
jimmy the one
(2,717 posts)tortoise: Actually, I'm quoting Justice Stevens about the individual right ... If you read the very first paragraph of the dissent in Heller, you will see that all justices agreed that the second amendment detailed in individual right.
This is not true, it's a lie or a misconception. Post this excerpt so I can demonstrate how wrong you are, as I have to numerous people in the past. I know what you are driving at, so post your 'proof'.
Tortoise: Your Story quote left out the section immediately above that: The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
Damn inconvenient, I know. He is stating - clearly - that the right to keep and bear arms is a right of the citizens. Not militia - citizens
That particular sentence by Justice Story is not 'clear', it's ambiguous; you referring to it as 'clearly - not militia - citizens', is a scalia style ploy to obtain phantom support when something could be interpreted in a couple different ways. And I posted the entire Story quote in post 66, I did not 'leave out' anything since not obliged to repeat all.
Tell me tortoise, how could armed unorganized individuals with no militia training or discipline, resist and triumph over the usurpation & arbitrary power of tyrannical rulers? They could not, story was speaking of the people as being the militia.
Furthermore, here is story's fuller paragraph, which I noted previously, where Justice Story equates the militia & the people, using the very quote which you tortoise claim clearly infers an rkba of individual citizens:
Story, circa 1830: The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. .... The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
You see above how Justice Story equated the people & the militia by equating how they could both check tyrannical rulers? A MILITIA could do that, armed individuals could not.
tortoise: Not militia - citizens. With that in mind, how can you still say that he didn't believe the second amendment was an individual right? Yes, he discusses the importance of militias in keeping tyrants form usurping power, but there is nothing in his writings that ties the second amendment to militia members only.
same para, Justice Story, equating the people with the militia again, & how to 'duly arm' the people: And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html
friendly_iconoclast
(15,333 posts)https://www.law.cornell.edu/supct/html/07-290.ZD.html
Five plus four equals nine, does it not?
jimmy the one
(2,717 posts)icon: 'Surely it protects a right that can be enforced by individuals." justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join
That's not what tortoise contended, icon & tortoise changing the goalposts? Even so, they do not contend an individual rkba disconnected from miltia, which was the original assertion by tortoise:
tortoise, #74: Rawle, Story, Tucker- all of them said the 2A was an individual right, and not dependent upon being in the militia.
jimmy the one #90 asked: Where have they said this? post excerpts where these 3 'clearly' conditioned 2ndA as an individual rkba disconnected from militia.
tortoise #92: Actually, I'm quoting Justice Stevens about the individual right ... If you read the very first paragraph of the dissent in Heller, you will see that all justices agreed that the second amendment detailed in individual right.
They did no such thing, except under a hypothetical. It's beyond belief that you & presumably tortoise would cite the heller dissent as some sort of proof for an individual rkba, or that all the justices thought 2ndA detailed & described an individual rkba.
The dissent was more pro militia than I am (barely).
dissenting opinion, heller (icon's very source): The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939) , provide a clear answer to that question.
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
The opinion the {Scalia/heller} Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; post-enactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.
tortoise1956
(671 posts)I'll take it from the top:
If you had actually read the Stevens dissent in Heller, which evidently you didn't, you will see that Stevens first says there is no doubt that the second amendment confers an individual right. He then spends page after page trying to establish restrictions based on the militia preface.
Here is an exact copy of the first paragraph in the dissent:
The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us
anything about the scope of that right.
And here is a link to the dissent:
https://www.law.cornell.edu/supct/pdf/07-290P.ZD
His dissent had concurrence from the other 3 justices in the minority. Obviously the majority held it to be an individual right. Still gonna argue that this isn't viewed as an individual right by the entire court?
As for the rest:
Your comment about the Story quote being ambiguous is telling, in that it clearly shows the weakness of your case. You insist on finding ambiguity when you disagree with comments, and then demand we accept your contention that other comments are clear as crystal, when in point of fact they aren't. Example - your Story quote, that you insist is referring to the militia preface, when there is nothing in the statement to either corroborate or refute that opinion.
As far as I'm concerned, you have demonstrated that you will ignore inconvenient facts and twist words out of shape until you have convinced yourself that they mean what you want them to. In the long run, you do your argument a disservice with your certainty in the righteousness of your cause, and you will make no converts other than those who aren't willing or able to research your claims.
I won't put you on ignore, since hiding opposing POVs doesn't build knowledge or wisdom. I will not, however, expend any more time or energy arguing with a closed mind.
Buh-bye...
jimmy the one
(2,717 posts)tortoise: If you had actually read the Stevens dissent in Heller, which evidently you didn't, you will see that Stevens first says there is no doubt that the second amendment confers an individual right.
Stevens did nothing of the sort, your excerpt does not show that; you use strained reasoning to create phantom support when none is there. Stevens only says whichever 'right' 2ndA conveys can be 'enforced' by individuals ,which is true, ie the police, or individuals in the legislatures. How you tortoise, get from a right being 'enforced' to that defining what the right is, is beyond me.
what stevens said: The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
Duh, tortoise, stevens is contending that a hypothetical 'conclusion' that 2ndA might convey an individual right, does not say how the individual right would be applied. He implies in later text that any individual right would be a right or duty to belong to a militia
stevens dissent: The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.
The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time.
The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.
This above is the same stevens that the slow tortoise wants you to think viewed 2ndA as an individual right.
tortoise: Your comment about the Story quote being ambiguous is telling, in that it clearly shows the weakness of your case.
Justice Story, as most all contemporary 2ndA writers, was not clear due the ambiguity between 'the people' & the militia. I have not weakness in my case, & I referred to Story as ambiguous to counter your saying Story was 'clearly' disconnecting the people from the militia, since the word 'militia' was not used in a particular sentence, an utterly asinine contention.
tortoise: His dissent had concurrence from the other 3 justices in the minority. Obviously the majority held it to be an individual right. Still gonna argue that this isn't viewed as an individual right by the entire court?
The minority did NOT view 2ndA as an individual rkba, your argument is nutty.
what you said: He is stating - clearly - that the right to keep and bear arms is a right of the citizens. Not militia - citizens.
When someone uses clear or clearly when there is no such animal, as scalia did in heller & you here, they're generally trying to hoodwink readers into accepting their position as gospel. But you & scalia are simply rightwing demagogues.
tortoise: You insist on finding ambiguity when you disagree with comments, and then demand we accept your contention that other comments are clear as crystal, when in point of fact they aren't.
Yet tortoise wants readers to accept his contention that story 'clearly' felt 2ndA an individual rkba.
tortoise: I won't put you on ignore, since hiding opposing POVs doesn't build knowledge or wisdom. I will not, however, expend any more time or energy arguing with a closed mind. Buh-bye...
How magnanimous of you not to put me on ignore; I won't lose any sleep over you either way.
tortoise1956
(671 posts)You aren't worth reading. Your torture the English language, you create your own reality, and you exhibit a singular contempt for reasoned debate. Frankly, life is too short to put up with the narrow-minded.
On another note, congratulations. You're the first person who's opinion I value so little that I have used the Ignore function to help clear the blogosphere...
jimmy the one
(2,717 posts)tortoise: You aren't worth reading. Your torture the English language, you create your own reality, and you exhibit a singular contempt for reasoned debate. Frankly, life is too short to put up with the narrow-minded.
Translation: I can't refute jimmy's arguments & he keeps getting the best of me & my revisionist history, so I'll go ad hominem & attack the poster to save face and protect the 2nd amendment mythology from further exposure. Oh wait, who was ben oliver again?
jimmy the one
(2,717 posts)Tucker: This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
{comment} Cornell’s thesis is that Tucker, along with the Founders in general, saw {2ndA} as guaranteeing a “state right” to maintain a militia, excluding an individual right to have and carry arms for self defense, which the legislature is free to curtail or prohibit.
st geo tucker, 1803: In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty
By the time tucker wrote the above circa 1803, the 'prohibitions' he had written of in England had largely effectively dissipated, they had really only lasted about 40 years into the early 1700's, and even then had rarely been enforced. American rev-war militia man Tucker is bashing England mainly, using outdated info.
+emph, note 1671 game laws were intended to prevent wanton killing of game: Moreover, most of the gentry chose not to enforce the Game Act vigorously, choosing instead to use selectively the right to search for weapons in order to deal with particular troublemakers. Shooting matches involving illegal gun owners were common, and many illegal gun owners made no effort to conceal their possession of firearms.. The govt had enforced the Game Act of 1671 sporadically at best, despite royal commands. After enactment of the Bill of Rights {incl'g 1689 Have Arms d.}, justices of the peace enforced the earlier firearms provisions only against poachers and not against people who simply possessed guns
I cite source only for game law 1671 info, other views may be invalid: http://www.constitution.org/2ll/2ndschol/59dk-d.pdf
Tucker is not actually blaming the English 'have arms' decree of 1689 for this 'prohibition', either. The English game laws of 1671 (18 years prior to the 'Have Arms' decree) is what 'disarmed' the English during that short time period ~1671 - early 1800's).
tucker: In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game,
The English game laws of 1671 were used as a pretext to (reasonably) preserve game under CharlesII, and the subsequent 'Have Arms' decree of 1689 was the legal instrument used to enforce the English game law..
jimmy the one
(2,717 posts)eleanors: Correct me if I am wrong, but I believe no justice argued that there was not an individual right to keep and bear arms, only that it comes from different interpretations of the Constitution
You're wrong. Unless you mean it as an individual right to belong to militia, which I doubt.
heller decision: The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.
eleanors might be referring to this, where the 4 propositions are simply the 4 possible prevailing views in America today (2008 as well as now). He was not endorsing #1 view:
The Second Amendment says that: “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.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred (opinion of the Court); (Stevens, J., dissenting).
(2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” US v. Miller, (1939)
(3) The Amendment “must be interpreted and applied with that end in view.” Miller
(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. https://www.law.cornell.edu/supct/html/07-290.ZD1.html
guillaumeb
(42,649 posts)A dual purpose, allowing for individual protection in an age where there was no police force. That point, that there was no organized police protection and enforcement, is ignored by many who argue for an unfettered individual right divorced from the concept of defense of a free state. The point also goes to "original intent", a concept much favored by Court conservatives. The Founders were well aware that there were no police forces, hence the need for a dual purpose right.
Straw Man
(6,771 posts)Do tell.
Initially run by a combination of obligatory and voluntary participation, the 17th century watch typically reported fires, maintained order in the streets, raised the “hue and cry” (pursuing suspected criminals with loud cries to raise alarm), and captured and arrested lawbreakers. Constables had similar tasks, which included maintaining health and sanitation and bringing suspects and witnesses to court—frequently for such conduct as working on the Sabbath, cursing in public places, and failing to pen animals properly.
In the more rural, sparsely populated areas of the Colonies, the sheriff was the main law enforcement figure. Appointed by the governor, sheriffs’ duties included serving legal documents such as writs, appearing in court, and collecting taxes. In many cases, the sheriff was paid a fixed amount for each task he performed, some, for example, receiving payment based on the amount of taxes they collected. Occasionally, these tasks proved dangerous. In fact, the first known American peace officer to be killed in the line of duty was Columbia County (NY) Sheriff Cornelius Hogeboom, who was shot on October 22, 1791, as he attempted to serve a writ of ejectment.
--http://www.nleomf.org/museum/news/newsletters/online-insider/2012/April-2012/early-days-american-law-enforcement-april-2012.html
guillaumeb
(42,649 posts)was no police force similar to today's police forces. Some urban areas did have people dedicated to police functions. In rural areas there was more need for self protection because distance between houses was a factor.
In the South, the police forces were first established as slave patrols whose primary function was to capture fugitive slaves.
But there is no comparison between the lightly armed and minimally trained people who served as the police in colonial America and the heavily armed and militarized police of 2015.
Straw Man
(6,771 posts)was no police force similar to today's police forces.
... and filed under Painfully Obvious. No, without a time machine, they could not have been.
That doesn't mean that the need for personal self-defense has disappeared. Do you have your own personal policeman? I don't.
guillaumeb
(42,649 posts)The rate of gun homicide is 4.7 persons killed per 100,000 in the US.
The rate of cancer per 100,000 in the US is 300.2
So a person is 60 times more likely to get cancer than to be killed by gun.
And the gun homicide rate does not take into account robberies using a gun, nor does it account for non-fatal shootings. But the point is that there are many things that account for death in the US, and most of these things cannot be guarded against by carrying a gun.
gejohnston
(17,502 posts)4.7 and the gun homicide rate is something like 3.2
Of course there are other violent crimes which can be guarded against by carrying a gun.
Those other things like cancer can be guarded against by eating right and exercising.
Straw Man
(6,771 posts)And the gun homicide rate does not take into account robberies using a gun, nor does it account for non-fatal shootings. But the point is that there are many things that account for death in the US, and most of these things cannot be guarded against by carrying a gun.
I don't smoke.
Self-defense is about a lot more than just guarding against being shot. But you knew that.
guillaumeb
(42,649 posts)Straw Man
(6,771 posts)guillaumeb
(42,649 posts)Straw Man
(6,771 posts)You cited homicide rates vs. cancer death rates. Homicide rates are not a reliable indicator of the need for self-defense.
guillaumeb
(42,649 posts)or is attempted, there is an obvious need for defensive action.
Straw Man
(6,771 posts)or is attempted, there is an obvious need for defensive action.
Also true, but there are many, many more situations where there is a need for defensive action even though a homicide has not taken place.
patsimp
(915 posts)guillaumeb
(42,649 posts)
riversedge
(73,130 posts)beevul
(12,194 posts)The anti-gun lobby left people who care about their rights, with no choice but to force the issue.
And so they went to court to force government to abide by amendment 2, as written and defined by the preamble to the bill of rights:
As an amendment which authorizes nothing and restricts only government, containing no exceptions on the individual exercise of the right, where government may ignore this restriction on its exercise of power.
Case closed.
guillaumeb
(42,649 posts)and the Constitution as it relates to what a militia was intended to be.
beevul
(12,194 posts)My reply EMBRACES interpretation of that language, consistent with the preamble to the bill of rights, and the plain as day intent and purpose of the bill of rights itself, as made clear in the preamble.
guillaumeb
(42,649 posts)The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
(I am leaving out some sentences here that do not bear on the discussion)
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;...........
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
As Article One, Section 8 makes clear, Congress has the sole power to regulate the militia. Congress organizes, arms, and disciplines the militia. If, as some claim, the Second Amendment right to keep and bear arms were an individual right there would be no reason for this particular phrase.
beevul
(12,194 posts)Granting congress the power to regulate the militia, as a body, is quite a different thing than regulating individuals outside the militia.
The power to regulate arms on the part of individuals, is a power which no federal governmental body was ever specifically granted in the constitution, which is why every last federal gun law claims its authority under the commerce clause, rather than the "we were granted specific power to regulate individuals with guns" clause - because no such clause exists.
Think about that for a minute.
Take it up with those that make that claim. I claim that its a restriction on governmental exercise of power, which was intended to protect a right, by directing government to keep its grubby mitts off.
The preamble, the fundamental function of the constitution and the bill of rights, and indeed the basic principle of how rights and powers work in this society, are in line with my argument.