The 2nd Amendment issue is going to come to a head in the next few years

[Rainsford]

While I like the fact that the courts are upholding SOME of our rights, I sort of wish they'd spend a little more time on the other rights. Whatever rhetoric the NRA brings out in cases like this, the 2nd amendment has not, in the history of this country, defending any of our other rights. I think everyone has a right to own a gun, but the argument that the 2nd amendment protects all our other rights is stupid. When the government decided we didn't need the 4th amendment, did the gun nuts storm the White House? Of course not, in fact most of the gun nuts are the same people who SUPPORT the subversion of the rest of our rights.

The 2nd Amendment is certainly worth defending, but the idea that it's indicative of a culture of individuals rights is bullshit. It's a right that's been fractured away from the rest of them, and the ideology that supports the defense of the 2nd amendment for some reason doesn't seem to sustain the defense of the 1st or the 4th. It's great news that the 2nd amendment has been upheld here (city-wide gun bans never seemed like a good idea to me in any case), but I wouldn't read anything more into that. The 2nd amendment has become only about the 2nd amendment, there is no "individual rights" culture or legal thinking surrounding it.

 

[tcsenter]

The 2nd Amendment is certainly worth defending, but the idea that it's indicative of a culture of individuals rights is bullshit. It's a right that's been fractured away from the rest of them

One that been fractured away exponentially more than the rest of them. If you could kindly point me to any substantial restriction of your right to free speech, press, religion, and such, where you are prohibited from exercising any of them to any substantial degree, or must register with the government in order to do so, I'd like to see that.

The only thing that has happened to these other rights are modest and narrowly tailored expansions of long-established and long-accepted limitations or restrictions of individual rights that have been upheld since the constitution was drafted. Nothing fundamentally different.

And no, we haven't had to use guns to protect all these other rights. Similarly, I've never actually had to use my fire insurance, either - guess its time to cancel the policy. No fire to date therefore means no fire would happen. Smart.

 

[6000SUX]

Originally posted by: Specop 007

Originally posted by: Genx87
What is interesting about the the dissenters view is if her view was the majorities. She basically tossed out the entire bill of rights for DC because it isnt considered a state.

Right. And it shows the argument supporting the 2nd was so watertight the ONLY ground to stand on in opposition is that DC isnt a state.

No. The D.C. Circuit could have ruled along the lines of the 9th, in construing the right as a so-called "collective" right. Other circuit decisions have turned also on construction of the same words, as this decision did, just with different results.

 

[BrunoPuntzJones]

Originally posted by: Rainsford
When the government decided we didn't need the 4th amendment, did the gun nuts storm the White House? Of course not, in fact most of the gun nuts are the same people who SUPPORT the subversion of the rest of our rights.

?God forbid we should ever be twenty years without such a rebellion?. And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms?. The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.? Thomas Jefferson

While I think it'd be a while, if ever, that any sort of revolution will take place, there are those who see it as unavoidable at the current rate of decline of rights in the US. Take a browse through AR15.com and you'll see folks saying when they can no longer vote in booths, they will vote from rooftops.

 

[6000SUX]

Originally posted by: Specop 007
Wow. The stage it really getting set for a very ugly showdown over the 2nd Amendment issue. Whats so interesting about it is the fact that right now we have legislation taking place to go either way. Some bills call for national conceal carry. Others call for rifle bans. The 9th Circuit has already ruled the 2nd is a collective right while now the 5th ruesl its an individual right.

Unless I'm really confused, this was the D.C. Circuit. The Fifth Circuit has previously expressed its view that the Second Amendment guarantees an individual right to bear arms. There is no "showdown" possible as these things get addressed across different circuits over the space of many years-- unless the Supreme Court decides to settle things once and for all.

 

[6000SUX]

Originally posted by: tcsenter

Originally posted by: adairusmc
Outstanding news.

And if you think that's something, check out U.S. v. ROCK ISLAND ARMORY, INC. (1991), where the US District Court for Central Illinois dismissed indictments against defendants for violating statutes prohibiting the possession of unregistered machine guns manufactured after the sunset date of May 19, 1986, on the basis that the federal government had no authority to ban the possession of machine guns, and rendered the NFA as modified by contemporary statute unconstitutional.

This ruling still stands as prevailing law in that district (forty-six Illinois counties) because the government chose not to appeal the decision

Hmm...

United States v. Lawton, 366 F.3d 550 (7th Cir. 2004)
After failing to disclose to a gun dealer that he had been charged with a felony offense, defendant was convicted of violating 18 U.S.C. § 924(a)(1)(A), which makes it unlawful for an individual to make a false statement to a federal firearms licensee. Defendant raised for the first time on appeal a constitutional challenge to the statute, contending that the Second Amendment protects an individual?s right to bear arms. The court rejected the claim, relying on Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000), which rejected the proposition that an individual has a right to bear arms. The Court also noted that even if it "assumed for the sake of argument that the Second Amendment embraces an individual?s right to bear arms . . . there can be little doubt about the government?s authority to regulate" firearms. Id. at 554.

Also, I looked up the Armory case. It was appealed, but the appeal was dismissed. I also think it had more to do with the application of a particular statute than whether the district should follow the individual-rights or collective-rights model. In any event, it is not good law any more, and in the first place the circuit court's dismissal (the only binding law) discussed only the National Firearms Act in the first place.

 

[PrinceofWands]

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

 

[6000SUX]

Originally posted by: PrinceofWands

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

You've got it a little wrong. The "militia" at issue is a state militia, not the federal military, and the collective-rights model still technically addresses individual rights-- just the individual right to carry arms only in service of a state militia.

Lastly, the Bill of Rights is not about "securing of all other rights to the states themselves. It reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people." It is not about securing rights for the states per se; it is a statement that the federal government has no rights beyond those enumerated in the Constitution.

 

[6000SUX]

I thought I would set the record straight on Silveira v. Lockyer, the important Ninth Circuit case adopting the collective-rights model. It relies on clear language from the Supreme Court of the United States, in United States v. Miller, that the language of the Second Amendment applies to state militias:

"The Supreme Court's most extensive treatment of the amendment is a somewhat cryptic discussion in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In that case, a criminal defendant brought a Second Amendment challenge to a federal gun control law that prohibited the transport of sawed-off shotguns in interstate commerce. The Court rejected the challenge to the statute. In the only and oft-quoted passage in the United States Reports to consider, albeit somewhat indirectly, whether the Second Amendment establishes an individual right to arms, the Miller Court concluded:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Miller, 307 U.S. at 178, 59 S.Ct. 816. The Miller Court also observed more generally that '[w]ith the obvious purpose to assure the continuation and render possible the effectiveness of [state militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.' Id. Thus, in Miller the Supreme Court decided that because a weapon was not suitable for use in the militia, its possession was not protected by the Second Amendment. As a result of its phrasing of its holding in the negative, however, the Miller Court's opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guidance as to what rights the Second Amendment does protect. Accordingly, it has been noted, with good reason, that '[t]he Supreme Court's jurisprudence on the scope of [the Second] [A]mendment is quite limited, and not entirely illuminating.' Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir.1999). What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view.

The only post-Miller reference by the Supreme Court to the scope of the amendment occurred in Lewis v. United States, 445 U.S. 55, 65 n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), in which the Court noted, in a footnote dismissing a Second Amendment challenge to a felon-in-possession conviction, that the federal gun control laws at issue did not 'trench upon any constitutionally protected liberties,' citing Miller in support of this observation. In that footnote, Lewis characterized the Miller holding as follows: '[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." ' Id. (quoting Miller, 307 U.S. at 178, 59 S.Ct. 816). The Lewis Court, like the Miller Court, phrased its statements in terms of what is not protected. Lewis does, however, reinforce the strong implication in Miller that the Court rejects the traditional individual rights model." Silveira v. Lockyer, 312 F.3d 1052, 1061-1062 (9th Cir. 2002)

 

[PrinceofWands]

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

You've got it a little wrong. The "militia" at issue is a state militia, not the federal military, and the collective-rights model still technically addresses individual rights-- just the individual right to carry arms only in service of a state militia.

But that completely ignores the entire body of evidence surrounding the drafting of the amendment itself. The argument that the 2nd is about militias is mostly modern. There was never any question until recently that it was an individual right. The federalist papers, the correspondence of participants, notes from conventions and debates, etc...these things all point towards an INDIVIDUAL right to bear arms, outside of the scope of 'official militias'.

 

[6000SUX]

Originally posted by: PrinceofWands

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

You've got it a little wrong. The "militia" at issue is a state militia, not the federal military, and the collective-rights model still technically addresses individual rights-- just the individual right to carry arms only in service of a state militia.

But that completely ignores the entire body of evidence surrounding the drafting of the amendment itself. The argument that the 2nd is about militias is mostly modern. There was never any question until recently that it was an individual right. The federalist papers, the correspondence of participants, notes from conventions and debates, etc...these things all point towards an INDIVIDUAL right to bear arms, outside of the scope of 'official militias'.

No. Please post your sources for the non-Federalist Papers information. Also, the Federalist Papers mean much less than someone like Scalia would have you believe; they were written by only three people and in no way are a conclusive record of legislative intent. Also, the argument that the Second Amendment is about militias is anything but mostly modern:

"The Constitution as originally adopted granted to the Congress power-?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.? U.S.C.A.Const. art. 1, s 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they *179 were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ?A body of citizens enrolled for military discipline.? And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." U.S. v. Miller, 307 U.S. 174, 178-179 (U.S. 1939).

That's from the Supreme Court, circa 1939. They define what the Constitution means, not the Federalist papers, writtten by a few people and published in a newspaper.

 

[Specop 007]

Originally posted by: Rainsford
While I like the fact that the courts are upholding SOME of our rights, I sort of wish they'd spend a little more time on the other rights. Whatever rhetoric the NRA brings out in cases like this, the 2nd amendment has not, in the history of this country, defending any of our other rights. I think everyone has a right to own a gun, but the argument that the 2nd amendment protects all our other rights is stupid. When the government decided we didn't need the 4th amendment, did the gun nuts storm the White House? Of course not, in fact most of the gun nuts are the same people who SUPPORT the subversion of the rest of our rights.

The 2nd Amendment is certainly worth defending, but the idea that it's indicative of a culture of individuals rights is bullshit. It's a right that's been fractured away from the rest of them, and the ideology that supports the defense of the 2nd amendment for some reason doesn't seem to sustain the defense of the 1st or the 4th. It's great news that the 2nd amendment has been upheld here (city-wide gun bans never seemed like a good idea to me in any case), but I wouldn't read anything more into that. The 2nd amendment has become only about the 2nd amendment, there is no "individual rights" culture or legal thinking surrounding it.

BULLSH!T

There have been ARMED REVOLTS as late as 1950's if I remember correctly. IN THIS COUNTRY.

And those very revolts brought about better change. Dont think for a minute firearms arent used to defend our freedoms.

 

[Specop 007]

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Then you obviously dont understand the Bill of Rights. The judges in this case did.

The right to keep and bear arms was not created by government, but rather preserved by it. Hence, the Amendment acknowledges 'the right . . . to keep and bear Arms,' a right that pre-existed the Constitution like 'the freedom of speech.' Because the right to arms existed prior to the formation of the new government, the Second Amendment only guarantees that the right 'shall not be infringed.'"

"The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state. The premise that private arms would be used for self-defense accords with Blackstone?s observation, which had influenced thinking in the American colonies, that the people?s right to arms was auxiliary to the natural right of self-preservation. The right of selfpreservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

"The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment?s inclusion therein strongly indicates that it, too, was intended to protect personal liberty."

"With respect to the right to defend oneself against tyranny and oppression, some have argued that the Second Amendment is utterly irrelevant because the arms it protects, even if commonly owned, would be of no use when opposed to the arsenal of the modern state. But as Judge Kozinski has noted, incidents such as the Warsaw ghetto uprising of 1943 provide rather dramatic evidence to the contrary. The deterrent effect of a well-armed populace is surely more important than the probability of overall success in a full-out armed conflict."

 

[6000SUX]

Specop007, the Supreme Court is the final authority on the meaning of the Bill of Rights, and in denying certiorari for Silveira v. Lockyer, it certainly permitted what you would call an infringement of rights.

 

[PrinceofWands]

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

You've got it a little wrong. The "militia" at issue is a state militia, not the federal military, and the collective-rights model still technically addresses individual rights-- just the individual right to carry arms only in service of a state militia.

But that completely ignores the entire body of evidence surrounding the drafting of the amendment itself. The argument that the 2nd is about militias is mostly modern. There was never any question until recently that it was an individual right. The federalist papers, the correspondence of participants, notes from conventions and debates, etc...these things all point towards an INDIVIDUAL right to bear arms, outside of the scope of 'official militias'.

No. Please post your sources for the non-Federalist Papers information. Also, the Federalist Papers mean much less than someone like Scalia would have you believe; they were written by only three people and in no way are a conclusive record of legislative intent. Also, the argument that the Second Amendment is about militias is anything but mostly modern:

"The Constitution as originally adopted granted to the Congress power-?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.? U.S.C.A.Const. art. 1, s 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they *179 were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ?A body of citizens enrolled for military discipline.? And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." U.S. v. Miller, 307 U.S. 174, 178-179 (U.S. 1939).

That's from the Supreme Court, circa 1939. They define what the Constitution means, not the Federalist papers, writtten by a few people and published in a newspaper.

I'm of the mind that words are less than the intent, and intent is a culmination of society, reason, and ambition. This is basic nature to me as I also support justice over law, theory over application, and so on. I wanted to make that clear up front so we know that we're discussing something that isn't commonly accepted.

When I try to think about the Constitution I'm trying to think about what was going on at the time and how the founders arrived at the conclusions that they did regarding all sorts of things. Most prominent to me is looking at influential theoretical writings and thinking of the times. There is no way to understand the American Revolution without reading Locke and Hobbes and so on. Likewise there is no way to understand a debate about firearm ownership without looking at who was writing what at the time.

Cesare Beccaria was a contemporary theorist and among the first famous for the 'if firearms are outlawed only outlaws will have firearms' line of reasoning. His works were much debated during the day (though often in matters of crime and punishment as opposed to individual liberties). This influence is easy to see in the writings of Jefferson (who frequently mentions Beccaria), such as his suggestions to the Virginia Constitution: "No free man shall be debarred the use of arms [within his own lands or tenements]." ~The Papers of Thomas Jefferson.

George Mason was more influenced by English theorist James Burgh, who was most interested in firearm ownership as a counter to government abuses. This represents the more widely debated aspect of the 2nd amendment process. The key to these theories, however, is that 'militias' were about a civil counter to government power - firearms were a way for the people to have power over those who would rule them. Not that militias were an enforcment arm of government (state or federal). Again, what we're establishing is an environment of rational debate.

Sir William Blackstone was another much discussed commentator of the day and many of his direct quotes and phrases appear in various sources relating to the writing of the Constitution. One of his more often used quotes relates to the right of every individual to arms..."The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

I'm a bit busy right now doing a research paper on slavery and the law in Florida so I can't keep going on this, but from my studies I've been generally led to see a prominent global discussion about the rights of individuals not only to defend their rights from an oppressive government through force of arms, but a natural right of the individual to use arms to defend themselves when the larger society is unable or unwilling to do so. Certainly you can argue about the difference of weapons (muskets versus machine guns), but the basic debate of the day supports an awareness on the part of the founders regarding arms ownership as an individual right (even as it was also connected to civic duty).

 

[Specop 007]

Originally posted by: 6000SUX
Specop007, the Supreme Court is the final authority on the meaning of the Bill of Rights, and in denying certiorari for Silveira v. Lockyer, it certainly permitted what you would call an infringement of rights.

And at that point the only option left is armed revolution. If the Supreme Court, the highest court in the land, doesnt support the Constitution then what avenues are left?

Additionally, no other Right is defined as a "collective" right, I have no idea why anyone would think the 2nd was penned with the intent to be a collective right when all others were penned as individual rights.

 

[Specop 007]

Originally posted by: PrinceofWands

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

You've got it a little wrong. The "militia" at issue is a state militia, not the federal military, and the collective-rights model still technically addresses individual rights-- just the individual right to carry arms only in service of a state militia.

But that completely ignores the entire body of evidence surrounding the drafting of the amendment itself. The argument that the 2nd is about militias is mostly modern. There was never any question until recently that it was an individual right. The federalist papers, the correspondence of participants, notes from conventions and debates, etc...these things all point towards an INDIVIDUAL right to bear arms, outside of the scope of 'official militias'.

No. Please post your sources for the non-Federalist Papers information. Also, the Federalist Papers mean much less than someone like Scalia would have you believe; they were written by only three people and in no way are a conclusive record of legislative intent. Also, the argument that the Second Amendment is about militias is anything but mostly modern:

"The Constitution as originally adopted granted to the Congress power-?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.? U.S.C.A.Const. art. 1, s 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they *179 were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ?A body of citizens enrolled for military discipline.? And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." U.S. v. Miller, 307 U.S. 174, 178-179 (U.S. 1939).

That's from the Supreme Court, circa 1939. They define what the Constitution means, not the Federalist papers, writtten by a few people and published in a newspaper.

I'm of the mind that words are less than the intent, and intent is a culmination of society, reason, and ambition. This is basic nature to me as I also support justice over law, theory over application, and so on. I wanted to make that clear up front so we know that we're discussing something that isn't commonly accepted.

When I try to think about the Constitution I'm trying to think about what was going on at the time and how the founders arrived at the conclusions that they did regarding all sorts of things. Most prominent to me is looking at influential theoretical writings and thinking of the times. There is no way to understand the American Revolution without reading Locke and Hobbes and so on. Likewise there is no way to understand a debate about firearm ownership without looking at who was writing what at the time.

Cesare Beccaria was a contemporary theorist and among the first famous for the 'if firearms are outlawed only outlaws will have firearms' line of reasoning. His works were much debated during the day (though often in matters of crime and punishment as opposed to individual liberties). This influence is easy to see in the writings of Jefferson (who frequently mentions Beccaria), such as his suggestions to the Virginia Constitution: "No free man shall be debarred the use of arms [within his own lands or tenements]." ~The Papers of Thomas Jefferson.

George Mason was more influenced by English theorist James Burgh, who was most interested in firearm ownership as a counter to government abuses. This represents the more widely debated aspect of the 2nd amendment process. The key to these theories, however, is that 'militias' were about a civil counter to government power - firearms were a way for the people to have power over those who would rule them. Not that militias were an enforcment arm of government (state or federal). Again, what we're establishing is an environment of rational debate.

Sir William Blackstone was another much discussed commentator of the day and many of his direct quotes and phrases appear in various sources relating to the writing of the Constitution. One of his more often used quotes relates to the right of every individual to arms..."The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

I'm a bit busy right now doing a research paper on slavery and the law in Florida so I can't keep going on this, but from my studies I've been generally led to see a prominent global discussion about the rights of individuals not only to defend their rights from an oppressive government through force of arms, but a natural right of the individual to use arms to defend themselves when the larger society is unable or unwilling to do so. Certainly you can argue about the difference of weapons (muskets versus machine guns), but the basic debate of the day supports an awareness on the part of the founders regarding arms ownership as an individual right (even as it was also connected to civic duty).

I'm impressed.

 

[Rainsford]

Originally posted by: Specop 007

Originally posted by: Rainsford
While I like the fact that the courts are upholding SOME of our rights, I sort of wish they'd spend a little more time on the other rights. Whatever rhetoric the NRA brings out in cases like this, the 2nd amendment has not, in the history of this country, defending any of our other rights. I think everyone has a right to own a gun, but the argument that the 2nd amendment protects all our other rights is stupid. When the government decided we didn't need the 4th amendment, did the gun nuts storm the White House? Of course not, in fact most of the gun nuts are the same people who SUPPORT the subversion of the rest of our rights.

The 2nd Amendment is certainly worth defending, but the idea that it's indicative of a culture of individuals rights is bullshit. It's a right that's been fractured away from the rest of them, and the ideology that supports the defense of the 2nd amendment for some reason doesn't seem to sustain the defense of the 1st or the 4th. It's great news that the 2nd amendment has been upheld here (city-wide gun bans never seemed like a good idea to me in any case), but I wouldn't read anything more into that. The 2nd amendment has become only about the 2nd amendment, there is no "individual rights" culture or legal thinking surrounding it.

BULLSH!T

There have been ARMED REVOLTS as late as 1950's if I remember correctly. IN THIS COUNTRY.

And those very revolts brought about better change. Dont think for a minute firearms arent used to defend our freedoms.

Care to cite any examples?

Maybe it's more recent than I thought, but with few exceptions, gun-rights and the rest of our rights seem to be treated as totally separate issues...and that's a black mark against BOTH sides of the debate. You have civil liberties organizations that conveniently forget about the 2nd amendment, and the gun lobby that could care less WHAT the government does as long as it leaves our guns alone. Neither side can reasonably claim to be "pro-freedom" in the general sense, yet both sides do.

But as annoying as it is when the ACLU doesn't step up to the plate on gun rights, it's even more annoying when the NRA supports virtually any suppression of liberty as long as it doesn't touch the 2nd amendment...if only because the NRA seems more selective in what rights they support. And while there are certainly exceptions, I think that the majority of gun owners are among the biggest tools when it comes to government oppression. I'm not saying there aren't gun owners who would use their guns to defend our freedoms, I'm just saying that if the revolution comes, all we'll need is for a Republican to be in the White House to have gun owners roaming the streets gunning down "undesirables".

 

[Rainsford]

Originally posted by: tcsenter

The 2nd Amendment is certainly worth defending, but the idea that it's indicative of a culture of individuals rights is bullshit. It's a right that's been fractured away from the rest of them

One that been fractured away exponentially more than the rest of them. If you could kindly point me to any substantial restriction of your right to free speech, press, religion, and such, where you are prohibited from exercising any of them to any substantial degree, or must register with the government in order to do so, I'd like to see that.

The only thing that has happened to these other rights are modest and narrowly tailored expansions of long-established and long-accepted limitations or restrictions of individual rights that have been upheld since the constitution was drafted. Nothing fundamentally different.

And no, we haven't had to use guns to protect all these other rights. Similarly, I've never actually had to use my fire insurance, either - guess its time to cancel the policy. No fire to date therefore means no fire would happen. Smart.

You need to pay more attention.

How about the government jailing reporters for refusing to give up the names of confidential informants? Or of trying to limit what's published because the government doesn't like how it paints the issue? How about elected officials suggested we need to reinstate the sedition act, or otherwise make it an act of treason to disagree with the President? How about those same elected officials wanting to amend freedom of religion to not include the right to practice Islam? How about warrantless wiretaps, secret searches, detention without the right to a trial, or the torture of anyone the President feels like?

THIS is what I hate about some gun folks...this rabid defense of the 2nd amendment combined with an extremely impressive ability to rationalize any suppression of any other civil liberty. And you'll note that whatever I think about guns, I never suggested banning them or otherwise restricting you from owning them. That doesn't mean I'm going to become best buddies with certain gun owners, not as long as they keep voting for jackasses who could care less about civil liberties that DON'T involve guns.

 

[K1052]

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

You've got it a little wrong. The "militia" at issue is a state militia, not the federal military, and the collective-rights model still technically addresses individual rights-- just the individual right to carry arms only in service of a state militia.

But that completely ignores the entire body of evidence surrounding the drafting of the amendment itself. The argument that the 2nd is about militias is mostly modern. There was never any question until recently that it was an individual right. The federalist papers, the correspondence of participants, notes from conventions and debates, etc...these things all point towards an INDIVIDUAL right to bear arms, outside of the scope of 'official militias'.

No. Please post your sources for the non-Federalist Papers information. Also, the Federalist Papers mean much less than someone like Scalia would have you believe; they were written by only three people and in no way are a conclusive record of legislative intent. Also, the argument that the Second Amendment is about militias is anything but mostly modern:

"The Constitution as originally adopted granted to the Congress power-?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.? U.S.C.A.Const. art. 1, s 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they *179 were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ?A body of citizens enrolled for military discipline.? And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." U.S. v. Miller, 307 U.S. 174, 178-179 (U.S. 1939).

That's from the Supreme Court, circa 1939. They define what the Constitution means, not the Federalist papers, writtten by a few people and published in a newspaper.

Yea that damn Madison had nothing to do with the Constitution or the Bill of Rights, what does he know!

If the Federalist papers are so useless and out of touch with the intentions of the founders why have the various Supreme Courts been continually citing them in their decisions for the last 200+ years?

 

[mc00]

I'm "liberal" support and protect(don't own a gun) 2nd Amendment and understand its purpose.. yes I fear may get shot by some dumb fck or trigger happy played some gta.. why would I blame 2nd Amendment because some dumb shumuck shot me?

edit: oops

 

[Rainsford]

Originally posted by: mc00
I'm "liberal" support and protect 2nd Amendment and understand its purpose.. yes I fear may get shot by some dumb fck or trigger happy played some gta.. why would I blame 2nd Amendment because some dumb shumuck shot me?

Exactly. Not to mention that the jackass who's most likely to shoot you is also not very likely to be bothered by gun laws. He's shooting you, clearly he is not a law abiding citizen in the first place.

 

[Specop 007]

Originally posted by: Rainsford

Originally posted by: Specop 007

Originally posted by: Rainsford
While I like the fact that the courts are upholding SOME of our rights, I sort of wish they'd spend a little more time on the other rights. Whatever rhetoric the NRA brings out in cases like this, the 2nd amendment has not, in the history of this country, defending any of our other rights. I think everyone has a right to own a gun, but the argument that the 2nd amendment protects all our other rights is stupid. When the government decided we didn't need the 4th amendment, did the gun nuts storm the White House? Of course not, in fact most of the gun nuts are the same people who SUPPORT the subversion of the rest of our rights.

The 2nd Amendment is certainly worth defending, but the idea that it's indicative of a culture of individuals rights is bullshit. It's a right that's been fractured away from the rest of them, and the ideology that supports the defense of the 2nd amendment for some reason doesn't seem to sustain the defense of the 1st or the 4th. It's great news that the 2nd amendment has been upheld here (city-wide gun bans never seemed like a good idea to me in any case), but I wouldn't read anything more into that. The 2nd amendment has become only about the 2nd amendment, there is no "individual rights" culture or legal thinking surrounding it.

BULLSH!T

There have been ARMED REVOLTS as late as 1950's if I remember correctly. IN THIS COUNTRY.

And those very revolts brought about better change. Dont think for a minute firearms arent used to defend our freedoms.

Care to cite any examples?

Maybe it's more recent than I thought, but with few exceptions, gun-rights and the rest of our rights seem to be treated as totally separate issues...and that's a black mark against BOTH sides of the debate. You have civil liberties organizations that conveniently forget about the 2nd amendment, and the gun lobby that could care less WHAT the government does as long as it leaves our guns alone. Neither side can reasonably claim to be "pro-freedom" in the general sense, yet both sides do.

But as annoying as it is when the ACLU doesn't step up to the plate on gun rights, it's even more annoying when the NRA supports virtually any suppression of liberty as long as it doesn't touch the 2nd amendment...if only because the NRA seems more selective in what rights they support. And while there are certainly exceptions, I think that the majority of gun owners are among the biggest tools when it comes to government oppression. I'm not saying there aren't gun owners who would use their guns to defend our freedoms, I'm just saying that if the revolution comes, all we'll need is for a Republican to be in the White House to have gun owners roaming the streets gunning down "undesirables".

Care to quit making baseless claims about the uselessness of firearms?

And for the record, it was late 40's. I was a bit off in my dates. The point still stands though. There are those who will use firearms to defend our rights. There are those who will defend your rights and your freedoms against enemies both foreign and domestic.
Whats the easiest way to strip them of that ability......
You wonder why politicians push so damned hard to strip away our gun rights? Maybe because in doing so they will make us truly powerless to stop them.

Click

Click

And I will agree, many gun owners dont give enough attention to other rights. But you have to realize, we've been in the "fight for our lives" for 70 YEARS. Thats a long damned time to fight for your rights. A LOOONG time. And its a constant battle. Name me one other right that has been under constant attack for the past 2 decades, and under attack for the last almost century.

You wonder why gun owners are so fixated on their rights to own guns? Because its daily battle.

 

[6000SUX]

Originally posted by: Specop 007

Originally posted by: 6000SUX
Specop007, the Supreme Court is the final authority on the meaning of the Bill of Rights, and in denying certiorari for Silveira v. Lockyer, it certainly permitted what you would call an infringement of rights.

And at that point the only option left is armed revolution. If the Supreme Court, the highest court in the land, doesnt support the Constitution then what avenues are left?

Additionally, no other Right is defined as a "collective" right, I have no idea why anyone would think the 2nd was penned with the intent to be a collective right when all others were penned as individual rights.

No, you misunderstand. The Supreme Court defines what the Consitution means. If they say that the Second Amendment doesn't include an individual right to bear arms, it doesn't.

The Consitution cannot possibly guarantee you a right of armed insurrection. It is inherently illogical to suppose this, and I hope you aren't... A revolution against America, of course, is a revolution against the Consitution and the Second Amendment. There is no valid support for the notion that the Framers intended to support rebellion against local governments, either... It would tend to call into question vertical separation of powers.

 

[6000SUX]

Originally posted by: K1052

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: 6000SUX

Originally posted by: PrinceofWands

Originally posted by: eilute
The Second Amendment 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.

One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.

Because you haven't read the history surrounding it. If you read the actual debates, notes, and articles of the framers there is pretty much no question at all what they meant. The 'militia' just meant every able man and boy in the country and wasn't just about a military body used against foreign entities in a war. The idea was most definitely for every person to have the right to their firearms; as a counter to government abuses, as means for defense of the nation, and also as a tool of individual security.

You'll also notice that the Bill of Rights is about enumeration of specific rights which the federal government would never have the right to infringe upon, and the securing of all other rights to the states themselves. This doesn't mesh with the idea that the 2nd is a maverick amendment which applies to federally controlled military assets.

You've got it a little wrong. The "militia" at issue is a state militia, not the federal military, and the collective-rights model still technically addresses individual rights-- just the individual right to carry arms only in service of a state militia.

But that completely ignores the entire body of evidence surrounding the drafting of the amendment itself. The argument that the 2nd is about militias is mostly modern. There was never any question until recently that it was an individual right. The federalist papers, the correspondence of participants, notes from conventions and debates, etc...these things all point towards an INDIVIDUAL right to bear arms, outside of the scope of 'official militias'.

No. Please post your sources for the non-Federalist Papers information. Also, the Federalist Papers mean much less than someone like Scalia would have you believe; they were written by only three people and in no way are a conclusive record of legislative intent. Also, the argument that the Second Amendment is about militias is anything but mostly modern:

"The Constitution as originally adopted granted to the Congress power-?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.? U.S.C.A.Const. art. 1, s 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they *179 were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ?A body of citizens enrolled for military discipline.? And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." U.S. v. Miller, 307 U.S. 174, 178-179 (U.S. 1939).

That's from the Supreme Court, circa 1939. They define what the Constitution means, not the Federalist papers, writtten by a few people and published in a newspaper.

Yea that damn Madison had nothing to do with the Constitution or the Bill of Rights, what does he know!

If the Federalist papers are so useless and out of touch with the intentions of the founders why have the various Supreme Courts been continually citing them in their decisions for the last 200+ years?

They have been cited in dicta mostly by judges in dissents... such as Scalia. Again, they were written by three people and published in the paper, and are not a record of the debates by the Framers. Here you are choosing to completely disregard the U.S. Supreme Court. All I can say is, that's a losing battle.