The Fatally Flawed Second Amendment

[SecularMotion]

Gun rights advocates rest their case heavily on the Second Amendment to the U.S. Constitution, insisting that the Second Amendment gives people the right to keep and bear arms. They are mistaken in their claim.

Justice Anthony Scalia, writing the majority opinion in District of Columbia v. Heller, acknowledges this when he writes: “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’” He adds: “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that [the right] ‘shall not be infringed.’”

So if the Second Amendment does not give people the right to keep and bear arms, what does it say?

“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.”

http://www.citywatchla.com/index.php/world-views/10398-the-fatally-flawed-second-amendment#sthash.Px36tzGG.dpuf

[Press Virginia]

1. If only there were writings by the founders where we could look and see what they meant

when they wrote the second amendment.
Surely they said something about surrendering our guns to the state in exchange for security or something

[jmg257]

2. He can argue about the necessity of the Militias, but he seems confused on natural rights vs govt.

"Arguably then, the natural right to keep and bear arms, allegedly necessary for the security of a free state, is precisely what citizens give up in exchange for a government securing citizens’ other natural rights."


WTF?

Why would a natural right DEEMED NECESSARY be given up??

"Under social contract theory, with which the Founding Fathers were quite familiar, citizens give up to a government their natural right to protect and preserve their other natural rights, and in exchange for giving up their right to protect and preserve their other natural rights, that government promises to protect and preserve those other natural rights for them"

Says WHO??

Clearly not OUR founding fathers...

Brutus II 1787

"The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not to be given up. To surrender them, would counteract the very end of government..."

..."From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with"

Sure sounds like the Bill of Rights to me! Including the 2nd amendment.

"In the bills of rights of the states it is declared, that a well regulated militia is the proper and natural defence of a free government — That as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controuled by the civil power.
The same security is as necessary in this constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no controul in the exercise of it; yet nothing of this is to be found in this new system.
I might proceed to instance a number of other rights, which were as necessary to be reserved, ..."

[discntnt_irny_srcsm]

3. The turd in the pool

"Given that the Second Amendment does not establish the right to keep and bear arms but, rather, presumes it, one could argue that the presumption is mistaken."

One could argue anything. I could argue rainwater is Scotch and send your ass a bill after the next storm. Are the odds good that I'll ever collect anything?

Since you posted this imaginary 'let's pretend the world is flat' idea, I infer that you agree with it. Can you explain why it may be reasonable to PRESUME that the Founder's assumption is wrong? The article kind of skips over that. The author, Barry Gan, also states that people give up rights to their government in return for a promise from the government to protect their rights.

WHERE, can it be found in the Constitution or Bill of Rights that individuals "give up" any rights?

[Nuclear Unicorn]

6. It's amazing, isn't it?

The author, Barry Gan, also states that people give up rights to their government in return for a promise from the government to protect their rights.

And what does Mr. Gan suggest when the government ceases to protect the people and actually becomes a danger to them -- such as when policemen and judges rode with the Klan to terrorize innocent African Americans.

[discntnt_irny_srcsm]

11. I never feel quite so hopeless as when I read or hear...

...that someone uses their freedom to suggest that another of their freedoms doesn't or shouldn't exist. The absence of hope leading to the need to deny basic freedoms and rights to others is, for me, the clearest motivation for the existence of slavery.

[beevul]

14. They're trying to engineer a rebalancing act.

They're trying to engineer a rebalancing act, to that which was already arrived at through a balancing act, namely amendment 2.

The second amendment doesn't need rebalancing, its already more balanced that the bulk of those who speak against it.

[discntnt_irny_srcsm]

15. The only problem with the 2A is...

...the number of folks who are highly motivated to lie about it and deny its protection of individual rights.

[beevul]

16. Their arguments have a short shelf life, particularly now...

http://www.democraticunderground.com/1172186323#post7

[TeddyR]

4. If he Founding Fathers

Were familiar with social contract theory and it works as the author claims it works, then why was the Second Amendment included in the Bill of Rights at all?

[discntnt_irny_srcsm]

5. If it works the way the author claims it works...

...why is there a Bill of Rights at all?

[ileus]

7. I do have the right to self defense....and that includes firearms.

[Nuclear Unicorn]

8. Boy, did they bury the lede on this one.

Recent evidence strongly suggests that a well-regulated militia is not necessary to the security of a free state. Erica Chenoweth and Maria J. Stephan, in their 2011 work “Why Civil Resistance Works,” have shown that attempts to overthrow tyrannical governments or to change their policies as well as attempts to repel armed invasion, are twice as successful when they are pursued non-violently than when they are pursued violently.

"Play the odds and abandon your rights," sounds really stupid -- because it is.

So, I guess this is the Controller talking point we'll be seeing for the next few years. Sort of a variation of the "you can't hope to compete with a modern military!" talking point becoming "you don't need to compete with a modern military." Of course, invaders and tyrants use guns; has the author bothered to inform them that their odds are improved 2:1 if they don't use guns?

No?

What gives?

[beardown]

9. Constitution granted the right, not the second

The right would be there regardless of the second. The BOR was only meant to re-enforce or clarify the specific rights mentioned. Did a horrible job.

I've read debates around the writing of the BOR and a few astute members said why add a BOR stating a right already granted in the Constitution as it might confuse the issue.

Now I'm off to put some buckets out to catch my next batch of Scotch rain.

[jmg257]

12. Like the Bill of Rights, the Constitution did NOT grant the right.

The rights to arms, to bear arms, & the existence of militias, pre-date the document. The Constitution identified and provided new methods for how the Militias were to be regulated, and for the vital roles they were to play in securing our freedoms.
It was these new methods - the powers of the new Congress, that made the people feel the notion of the 2nd was necessary.

[20 Aug. 1789]

Mr. Scott objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army

[DonP]

10. Add another to the "wealth" of basement bloggers supporting gun control

Funny, how the control minded have "Plenty-O-Studies" and people blogging from Mom's basement that absolutely and "authoritatively" "prove" we need far more gun control.

But, after 20 years of blog posts and articles and myriad study results "proving" gun owners are all wrong, they just can't seem to get many of them to vote that way.

We know it's hard for you control folks to get out of the house and leave that safe, secure keyboard and mom's home cooking, but hey, write a check, go to a protest once in a while, you know, do something real. (And their judicial track record sucks almost as bad.)

But then again, they always have their "go to" excuse for failure for over 20 years now; "Ummm, the NRA and big gun maker money bought out the entire Congress and all those Judges". They tend to gloss over the fact that a lot of Dems don't support their ideas either or that the NRA has been out spent on major issues and elections.

Most of them are so blinded by incoherent and ignorant rage they don't even know about the NSSF, the SAF or the 50 plus state level independent 2nd amendment organizations and credit every loss to the NRA when they had nothing to do with the lawsuit or issue.

Even with Bloomberg forking over $50 million last year to support them and out spending the NRA in elections, they still fall back on the same sad excuse for being perennial losers on a par with the Washington Generals playing the Globettrotters.

Hey, maybe with their track record we should all just think of Bloomberg and his minions here on DU as the Washington Generals of gun control and order some T-Shirts for them?

https://en.wikipedia.org/wiki/Washington_Generals

[Eleanors38]

13. "Plenty-O-Studies." Heh-heh.

Dat-a-Rama.