NationStates Jolt Archive

I'm not going to get into a debate about gun control, I was just wondering how the US government can have any restriction on what type of arms a citizen can own.

I ask this because the language of the amendment leads me to believe that the right to own any weapon is protected by the constitution.

Your right to bear any weapon during a time of crisis IF you are part of a "well-organized militia" is protected. Your right to own a gun, a nuke, or a mech to keep your neighbours or the feds off your property is a bad interpretation.

The second amendment isn't what "you" [people in general] think because it's deliberately misinterpreted so often by the higher-ups. Look it up and read the whole amendment. You have no real right to 'bear arms' in the latter situation.

Your right to bear any weapon during a time of crisis IF you are part of a "well-organized militia" is protected. Your right to own a gun, a nuke, or a mech to keep your neighbours or the feds off your property is a bad interpretation.

The second amendment isn't what "you" [people in general] think because it's deliberately misinterpreted so often by the higher-ups. Look it up and read the whole amendment. You have no real right to 'bear arms' in the latter situation.

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.

Is this the whole of it or am I missing something?

Why do I get the feeling that this will become an eighty page thread ending in flame war?

Why do I get the feeling that this will become an eighty page thread ending in flame war?

Well possibly, but I'd quite like my question answered first.

Is there some reason you couldn't post this in the other (http://forums.jolt.co.uk/showthread.php?t=478660) 2nd Amendment thread? Particularly since all you're doing is carrying on the conversation in that one.

Or even this (http://forums.jolt.co.uk/showthread.php?t=478028) 2nd Amendment thread...

:rolleyes:

Why do I get the feeling that this will become an eighty page thread ending in flame war?

Your faith in humanity shocks me.

Surely it will become a flamewar much sooner than that!

Also read the rest of the Constitution. It defines what a Militia is and how it operates.

Article 1 Section 8:

Congress Shall have the power.....

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurections 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;

Article 2 Section 2

The President shall be Commander in Cheif of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

Is there some reason you couldn't post this in the other (http://forums.jolt.co.uk/showthread.php?t=478660) 2nd Amendment thread? Particularly since all you're doing is carrying on the conversation in that one.

Or even this (http://forums.jolt.co.uk/showthread.php?t=478028) 2nd Amendment thread...

:rolleyes:

Coz one was about battle mechas and I wouldn't want to incur the wrath of the mods for diverting the debate away from the noble subject and the other wasn't about this partcular topic as far as I could see.

Also read the rest of the Constitution. It defines what a Militia is and how it operates.

Article 1 Section 8:

Congress Shall have the power.....

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurections 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;

Article 2 Section 2

The President shall be Commander in Cheif of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

But the wording of the amendment is "the right of the people" and not "the right of the militia". This is what confuses me.

I'm not going to get into a debate about gun control, I was just wondering how the US government can have any restriction on what type of arms a citizen can own.

I ask this because the language of the amendment leads me to believe that the right to own any weapon is protected by the constitution.

Do you think all rights are absolute? Does the 1st Amendment protect defamation?

Do you think all rights are absolute? Does the 1st Amendment protect defamation?

I don't know, does it? I'm English and it afraid I don't the strange heathen ways of America and thats why I'm asking.

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.


Please note that it doesn't say the right of the militia to keep and bear arms, but rather the right of the people to keep and bear arms shall not be infringed. That states that the people are a check on the militia in case the government gets out of hand and uses military force to enforce unjust laws. Remember, the people signing this document just got done fighting against a militia. They intend for the people to regulate the militia, with violence if necessary, so it doesn't become a tool of tyranny.

Because of that I would interpret it as stating that the people can own virtually any weapons they choose in order to be capable of fighting the militia effectively.

Please note that it doesn't say the right of the militia to keep and bear arms, but rather the right of the people to keep and bear arms shall not be infringed. That states that the people are a check on the militia in case the government gets out of hand and uses military force to enforce unjust laws. Remember, the people signing this document just got done fighting against a militia. They intend for the people to regulate the militia, with violence if necessary, so it doesn't become a tool of tyranny.

Because of that I would interpret it as stating that the people can own virtually any weapons they choose in order to be capable of fighting the militia effectively.

See this is how I read it and what I want to know is how does the Amercan government justify the restrictions it places on weapon ownership?

"The right of the people to keep and bear arms shall not be infringed"

Ergo, the Government has no right to restrict our armaments by their own literature.

See this is how I read it and what I want to know is how does the Amercan government justify the restrictions it places on weapon ownership?

First of all, that may be one reading of it, but it isn't the majority view.

Secondly, none of the Bill of Rights are absolute. Free speech doesn't protect defamation or words that pose a clear and present danger. The Second Amendment does not protect the right to possess any weapon.

Third, what were arms at the time the Amendment was written. Was it the original intent for people to have nuclear weapons? Obviously not.

Fourth, if you really want to get your panties in a bunch and be literal about it, the Second Amendment only limits the power of the federal government. The states could still ban weapons.

First of all, that may be one reading of it, but it isn't the majority view.

Secondly, none of the Bill of Rights are absolute. Free speech doesn't protect defamation or words that pose a clear and present danger. The Second Amendment does not protect the right to possess any weapon.

Third, what were arms at the time the Amendment was written. Was it the original intent for people to have nuclear weapons? Obviously not.

Fourth, if you really want to get your panties in a bunch and be literal about it, the Second Amendment only limits the power of the federal government. The states could still ban weapons.

See, I knew it could happen, a sensible answer that actually addresses the question in the OP. A cookie to you sir.

However the point this raises is that if the constitution can be interpreted then what is the point of it? Shouldn't a new document be written that reflect the modern world?

See, I knew it could happen, a sensible answer that actually addresses the question in the OP. A cookie to you sir.

However the point this raises is that if the constitution can be interpreted then what is the point of it? Shouldn't a new document be written that reflect the modern world?

There is a whole other thread addressing these questions.

Please, please contribute to it.

http://forums.jolt.co.uk/showthread.php?t=478396

I'll be happen to answer any questions you have there.

However the point this raises is that if the constitution can be interpreted then what is the point of it?
Language isn't good enough to cover every situation. No matter what was written, every person would read it filtered through their own prejudices. It's like the 10 commandments, then Moses wrote Leviticus and Deuteronomy to explain them. Then the priests spent the next 4,000 years interpreting those books. Then the Christians have spent 2,000 years interpreting what God really was saying.

There have been times when people have called for a new constitutional convention. But can you imagine the money lobbyists would use to pay off the members if that happened? The Constitution was written in a very narrow window in history with very unique men. They weren't perfect and the document wasn't perfect, but I don't think we could live with what would be written today.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurections and repel Invasions;
This gives me the idea that a militia, as planned by the founding fathers, is not something to be used against the government, but something to be used by it.

So basically like when the British Army invaded the colonies - you get the local population to fight them. And for that you need weapons.

Maybe people are just interpreting too much into this amendment.

This gives me the idea that a militia, as planned by the founding fathers, is not something to be used against the government, but something to be used by it.

So basically like when the British Army invaded the colonies - you get the local population to fight them. And for that you need weapons.

Maybe people are just interpreting too much into this amendment.

If the government decides that's the case, I volunteer to create/join the First Montanan Armored Militia Group. :p

Fourth, if you really want to get your panties in a bunch and be literal about it, the Second Amendment only limits the power of the federal government. The states could still ban weapons.

Uhm, no?

The Constitution is the supreme law of the land. Only things not enumerated in the bill of rights and the constitution may be changed by the states. A state can't take away free speech, or enact torture. Nor can they ban weapons.

Tis a good idea to look at the other written material out there by the men who wrote the original documents. They mention in public and private letters that they though all men should be armed, not just in case of war but in their private lives as well.

Uhm, no?

The Constitution is the supreme law of the land. Only things not enumerated in the bill of rights and the constitution may be changed by the states. A state can't take away free speech, or enact torture. Nor can they ban weapons.

Once again Cat Tribe is right.

The Bill of Rights are protections against the federal government. Until the 14th Amendment, they didn't even apply to the states at all.

Thus, a state could deny them to the citizens at first.

I'd love for the National Firearms Act (1934), Gun Control Act (1968), Firearms Owner`s Protection Act (1986), and the Brady Handgun Violence Prevention Act (1993) to go away, as I feel they are unconstitutional, and they take away the best stuff (I wouldn't mind owning a select fire M-16, or a Glock 18). I'm not going to hold my breath though, as I doubt it'll ever happen. :(

First of all, that may be one reading of it, but it isn't the majority view.

What it is, is an outsider's reading of the text. As an outsider, I would think that would make him a more objective reader than those of us who already have our battle lines drawn.

Secondly, none of the Bill of Rights are absolute. Free speech doesn't protect defamation or words that pose a clear and present danger. The Second Amendment does not protect the right to possess any weapon.

This isn't an arguement for the way things should be. It's an agknowledgement of how they currently are. All rights should be absolute, or they can be nickled and dimed away until there's nothing left. One day, "free speach" will mean you're free to say whatever the ruling party wants you to say, and everything else will be dangerous treason.

Regardless of my slippery slope "fallacy", the moment you've accepted that rights are not absolute and inalienable, you're already, by definition, living in a less free society.

Third, what were arms at the time the Amendment was written. Was it the original intent for people to have nuclear weapons? Obviously not.

This is a load of crap, who's only purpose is to undermine the constitutional protections of the Bill of Rights. Under this sort of interpretation, free speach would not apply over the telephone, and television and the internet would have no freedom of the press guarentees. Arms means weapons. Specifically military weapons, whatever that may be at the time.

Fourth, if you really want to get your panties in a bunch and be literal about it, the Second Amendment only limits the power of the federal government. The states could still ban weapons.
Did you miss the 14th ammendment, and the case law using it to extend the constitutional protections of the Bill of Rights into state law?

I could have sworn it was you who pointed that one out to me.

I'd love for the National Firearms Act (1934), Gun Control Act (1968), Firearms Owner`s Protection Act (1986), and the Brady Handgun Violence Prevention Act (1993) to go away, as I feel they are unconstitutional, and they take away the best stuff (I wouldn't mind owning a select fire M-16, or a Glock 18). I'm not going to hold my breath though, as I doubt it'll ever happen. :(

I'd like to see them go too.

I'm all for gun-rights.

I'd love for the National Firearms Act (1934), Gun Control Act (1968), Firearms Owner`s Protection Act (1986), and the Brady Handgun Violence Prevention Act (1993) to go away, as I feel they are unconstitutional, and they take away the best stuff (I wouldn't mind owning a select fire M-16, or a Glock 18). I'm not going to hold my breath though, as I doubt it'll ever happen. :(


Right, because AK's, M-16, and RPGs would be great in the hands of street gangs.:rolleyes:

Right, because AK's, M-16, and RPGs would be great in the hands of street gangs.:rolleyes:
Right, because the street gangs are so underarmed now and allowing people who aren't criminals to own weapons always disproportianately puts weapons in the hands of criminals. :rolleyes:

Right, because AK's, M-16, and RPGs would be great in the hands of street gangs.:rolleyes:

Correction: Right, because AKs, M16s, and RPGs are great in the hands of street gangs.

"Right, because AK's, M-16, and RPGs would be great in the hands of street gangs."

Now, I hate to be the bearer of bad news, but the fact is if these people were really intent on getting these weapons, laws wouldn't stop them. That is why they are known as criminals, as the law holds little meaning for them. I don't necessarily see why the average citizen would feel they need an automatic rifle, but then again I'd dig one just to practice on.:mp5:

Right, because the street gangs are so underarmed now and allowing people who aren't criminals to own weapons always disproportianately puts weapons in the hands of criminals. :rolleyes:


Hey guns are nice and all, in the hands of cops, military, and when hunting. The Us has like around 10,000 gun related deaths a year, why does no other country have these stats?

I don't understand why anyone has to use a freaking automatic gun to kill an animal. Did our ancestors not hunt with spears? :p

Hey guns are nice and all, in the hands of cops, military, and when hunting. The Us has like around 10,000 gun related deaths a year, why does no other country have these stats?

I don't care how many deaths guns cause.

I'm not willing to give up one of my liberties to live in a safer world.

I don't understand why anyone has to use a freaking automatic gun to kill an animal. Did our ancestors not hunt with spears?

Our ancestors were smart. And they got smarter. Once they developed the better technology, they used it.

I hope you'll do the same.

Hey guns are nice and all, in the hands of cops, military, and when hunting. The Us has like around 10,000 gun related deaths a year, why does no other country have these stats?

And yet we have 30,000 deaths attributed to cars every year... I don't see you jumping up and down to ban cars. I believe more fatal car accidents are caused by drinking and driving, than by guns. But I don't see you wanting to ban alcohol.

Right, because AK's, M-16, and RPGs would be great in the hands of street gangs.:rolleyes:

Did you know that right now, I can legally own an AK or AR-15 (providing I follow my state's AWB about its features). The only difference is it has to be semi-auto. They do sell full auto M-16s in the US, but they're expensive (around $12k, last time I checked).

Gangs usually (at least around here) use pistols, as they're much easier to conceal than something like an M-16 or AK-47 (cheaper too). I doubt gangs would use RPGs, as they'd be impossible to conceal, expensive, and one shot (per round).



**edited for spelling error

I don't care how many deaths guns cause.

I'm not willing to give up one of my liberties to live in a safer world.


I don't think having a machine gun is necesarily a "liberty" more like an unneeded luxury

I don't understand why anyone has to use a freaking automatic gun to kill an animal. Did our ancestors not hunt with spears? :p

You're welcome to try it sometime. Hunting with a bow is difficult enough for most....

Did you know that right now, I can legally own an AK or AR-15 (providing I follow my state's AWB about its features). The only difference is it has to be semi-auto. They do sell full auto M-16s in the US, but they're expensive (around $12k, last time I checked).

Gangs usually (at least around here) use pistols, as they're much easier to conceal than something like an M-16 or AK-47 (cheaper too). I doubt gangs would use RPGs, as they'd be impossible to conceal, expensive, and one shot (per round).

Actually, there was a photograph of a Los Angeles gangmember with an AKM strapped across his back a couple years ago in TIME.

I don't think having a machine gun is necesarily a "liberty" more like an unneeded luxury

Everything other than shelter, water, and food are unneeded.

The great thing about free nations is that we don't need a reason to exercise free speech or religion or any of the other freedoms our nations give us.

I don't understand why anyone has to use a freaking automatic gun to kill an animal. Did our ancestors not hunt with spears? :p

Who says I would use an F/A firearm for hunting? That'd be a stupid waste of bullets and animal meat. It'd sure help me teach those bowling pins and paper targets a lesson, though. :D

Actually, there was a photograph of a Los Angeles gangmember with an AKM strapped across his back a couple years ago in TIME.

Semi only, or F/A?

And yet we have 30,000 deaths attributed to cars every year... I don't see you jumping up and down to ban cars. I believe more fatal car accidents are caused by drinking and driving, than by guns. But I don't see you wanting to ban alcohol.


Im not saying Ban all guns. I am saying ban the automatics and big weapons. there is no need for them in private hands. And you can't conceal a car, take it into a bank, church, school, workplace, etc and shoot the place up, can you?

Im not saying Ban all guns. I am saying ban the automatics and big weapons. there is no need for them in private hands. And you can't conceal a car, take it into a bank, church, school, workplace, etc and shoot the place up, can you?

Assault rifles make very poor criminal weapons. Pistols are the gun of choice for crime by lightyears. If you want to ban a firearm, you should be advocating the banning of pistols.

Im not saying Ban all guns. I am saying ban the automatics and big weapons. there is no need for them in private hands. And you can't conceal a car, take it into a bank, church, school, workplace, etc and shoot the place up, can you?

Wait.

You're argument against big weapons is that you can conceal them?

Have you tried to conceal an AKM? An M16? G36? Not only is it incredibly uncomfortable, but it's more than a little obvious, too.

You're welcome to try it sometime. Hunting with a bow is difficult enough for most....


I hunt with a bow. 70lbs pull on it.. Its an indian supreme..not the best or anything, but it still gets it.

I don't think having a machine gun is necesarily a "liberty" more like an unneeded luxury
The generally accepted reason for the 2nd amendment(or at least the generally accepted reason for the 2nd amendment among gun nuts) is so in case the government goes corrupt, everybody with a gun can storm Washington D.C. and correct this.

Wait.

You're argument against big weapons is that you can conceal them?

Have you tried to conceal an AKM? An M16? G36? Not only is it incredibly uncomfortable, but it's more than a little obvious, too.

This is why criminals don't use these weapons often. I'm going to see if I can dig up a statistic of just how many deaths were actually caused by assault rifles, and compare them to pistols.

My guess is that more people in America are beaten to death then killed by an assault rifle.

Wait.

You're argument against big weapons is that you can conceal them?

Have you tried to conceal an AKM? An M16? G36? Not only is it incredibly uncomfortable, but it's more than a little obvious, too.


not if you wear baggy clothes:p (don't poke holes in my argument, its 12:30 and i am tired right now dangit)

I hunt with a bow. 70lbs pull on it.. Its an indian supreme..not the best or anything, but it still gets it.

I have a bow with a 40 lbs. pull on it.... :eek: Kinda wimpy, it does seem... (and the fact that the pull is about a half an inch too short is kinda annoying...).

not if you wear baggy clothes:p (don't poke holes in my argument, its 12:30 and i am tired right now dangit)

You presume that I have not tried it! :p :eek:

Assault rifles make very poor criminal weapons. Pistols are the gun of choice for crime by lightyears. If you want to ban a firearm, you should be advocating the banning of pistols.


hell, why not? Pistols do have a good majority of crime attributed to them. But idk about assault weapons being poor criminal weapons, did you see the hollywood bank robbery like 10 yrs ago. those guys had the fuzz penned down until the swat got there.

hell, why not? Pistols do have a good majority of crime attributed to them. But idk about assault weapons being poor criminal weapons, did you see the hollywood bank robbery like 10 yrs ago. those guys had the fuzz penned down until the swat got there.

They were using illegal weapons.

Owned kevlar vests.

The fuzz couldn't put them down due to the kevlar vests. (The cops had shotguns and 9mm handguns.) It took a gun store owner lending some of his AR-15s to the cops to put them down, IIRC.

I have a bow with a 40 lbs. pull on it.... :eek: Kinda wimpy, it does seem... (and the fact that the pull is about a half an inch too short is kinda annoying...).


Haha..well we all start at different levels..not wimpy. I am from southern illinois, I like guns, i like bows, i like huntings. I just don't see the need for those heavy weapons in the hands of private citizens. it just seems like bad things will come from it.

They were using illegal weapons.

Owned kevlar vests.

The fuzz couldn't put them down due to the kevlar vests. (The cops had shotguns and 9mm handguns.) It took a gun store owner lending some of his AR-15s to the cops to put them down, IIRC.


Okay thats it! Im off to bed... Ill be back tommorrow and i will meet you right here. and we are duking this out :p

They were using illegal weapons.

Owned kevlar vests.

The fuzz couldn't put them down due to the kevlar vests. (The cops had shotguns and 9mm handguns.) It took a gun store owner lending some of his AR-15s to the cops to put them down, IIRC.

More to the point, they were illegally modified to fire full auto. They also (IIRC) had extra (homemade) protection over their Kevlar.

Hey guns are nice and all, in the hands of cops, military, and when hunting. The Us has like around 10,000 gun related deaths a year, why does no other country have these stats?
Did you normalize that for the US population, relative to the populations of the other countries you were comparing it to?

Didn't think so.

I have a bow with a 40 lbs. pull on it.... :eek: Kinda wimpy, it does seem... (and the fact that the pull is about a half an inch too short is kinda annoying...).

Mine is a 50 lb. Browning (left handed), with 50% let-off. The problem with mine is the fact that I need every inch of my 32" carbon arrows, but my bow only has a 29" draw length. :(

hell, why not? Pistols do have a good majority of crime attributed to them. But idk about assault weapons being poor criminal weapons, did you see the hollywood bank robbery like 10 yrs ago. those guys had the fuzz penned down until the swat got there.

That's my point. Pistols are the overwhelming choice for criminals, not assault rifles. Assault weapons are a pain in the ass to conceal, and even if you can pull that off, it'd be uncomfortable. Assault weapons are not as good for "the draw" either or in close quarters combat due to their size. There's a reason why the SWAT team (and many military special forces) usually use MP5s and similar weapons rather than an AK, M-16, FAL, or G3.

A pistol is cheaper, provides all the range and firepower a criminal would need, easily concealed and easy to move with.

Banning assault rifles instead of pistols would be a decision so stupid it's beyond belief.

EDIT: I would like to remind everyone that I'm all for gun-rights though. In fact, one day I hope to land my hands on an FAL.

Please note that it doesn't say the right of the militia to keep and bear arms, but rather the right of the people to keep and bear arms shall not be infringed. That states that the people are a check on the militia in case the government gets out of hand and uses military force to enforce unjust laws. Remember, the people signing this document just got done fighting against a militia. They intend for the people to regulate the militia, with violence if necessary, so it doesn't become a tool of tyranny.

Because of that I would interpret it as stating that the people can own virtually any weapons they choose in order to be capable of fighting the militia effectively.

I take the free state to mean a government of the people. So this means that the militia is necessary for the protection of the people, which in turn causes me to tie the right to bear arms with the forming of a militia.

I ask this because the language of the amendment leads me to believe that the right to own any weapon is protected by the constitution.Right, and the First Amendment states that "Congress shall make no law... abridging the freedom of speech..."

Obviously, Congress and the States (to which the Amendment applies by way of the 14th) have been allowed to pass a variety of laws abridging freedoms of speech, despite the language that they shall "make no law." Statutes that prohibit "fighting words," for instance, are allowed; as are statutes that prohibit an incitement to violence; and the many time/place/manner restrictions.

This is perfectly natural, and probably in accord with what the Framers had in mind. The Constitution needs to be interpreted. Words like "freedom of speech" and "arms" do not speak for themselves. In the case of the second amendment, it is rather clear to all observers that nuclear weapons are not included in the protection. Thus, a line must be drawn somewhere. The question that the courts try to answer is, where?

I take the free state to mean a government of the people. So this means that the militia is necessary for the protection of the people, which in turn causes me to tie the right to bear arms with the forming of a militia.
It's dangerous to take for granted that governments act in the best interests of their people. Often they don't. The only ones who can protect the people from the government, when it comes down to it, are the people themselves. Denying the right of the people the ability to protect themselves from their government, should it become unjust, is laying the foundation for a facist state.

Right, and the First Amendment states that "Congress shall make no law... abridging the freedom of speech..."

Obviously, Congress and the States (to which the Amendment applies by way of the 14th) have been allowed to pass a variety of laws abridging freedoms of speech, despite the language that they shall "make no law." Statutes that prohibit "fighting words," for instance, are allowed; as are statutes that prohibit an incitement to violence; and the many time/place/manner restrictions.

This is perfectly natural, and probably in accord with what the Framers had in mind. The Constitution needs to be interpreted. Words like "freedom of speech" and "arms" do not speak for themselves. In the case of the second amendment, it is rather clear to all observers that nuclear weapons are not included in the protection. Thus, a line must be drawn somewhere. The question that the courts try to answer is, where?
You are incorrect. If it were clear to all observers that nuclear weapons are not included, that would mean that I would believe that the protection did not extend to nuclear arms. Since I do believe that the protection rightly applies to nuclear weapons, you are clearly mistaken when you say all observers see things your way.

The function of the second amendment is to provide a final check on the power of the government, which itself is littered with checks and ballances. In order to exersise that final check on governmental power, the people must have the means to match any potential use of force the government might bring to bear against them. Since the government has an arsonel of nuclear weapons capable of destroying the world seven times over, I don't think a personal nuclear weapon for every household is an unreasonable request.

(Of course of the government no longer had nuclear weapons...)

It's dangerous to take for granted that governments act in the best interests of their people. Often they don't. The only ones who can protect the people from the government, when it comes down to it, are the people themselves. Denying the right of the people the ability to protect themselves from their government, should it become unjust, is laying the foundation for a facist state.

This is about the interpretation of the amendment, not the validity of the amendment.

Fourth, if you really want to get your panties in a bunch and be literal about it, the Second Amendment only limits the power of the federal government. The states could still ban weapons.While there has been no Supreme Court decision on incorporation of the Second Amendment, I would be willing to bet that the Court would rule that it places at least some restrictions on the States. Although, it would be interesting... The Court could choose to take a "federalism" view of the Second Amendment, reading it to prohibit the federal government from interfering with State militias. Hmm, I wonder if there is documentation (e.g. debate at the time the Bill of Rights was passed) to support this?

This gives me the idea that a militia, as planned by the founding fathers, is not something to be used against the government, but something to be used by it.

Well, but you have to recall the conditions of federalism at the time the Amendment was written. It is possible (even likely) that the Second Amendment is meant primarly to protect the militia of each individual State against attempts by the federal government to weaken them. These militias might be used by the State governments, yet also be regarded as "checks" against the federal government.

In today's world, this is hardly an issue anymore. Thus, it would be very interesting to see how the courts would read the amendment in terms of incorporation... If it was really intended to maintain the federal structure, then it should not (on a "Framer's intent" reading) apply against the States. If, however, they read it as a general restriction on the federal government qua government--that is, a statement of "what (any) government should not do"--then the logic of selective incorporation should tend to apply it against the States as well.

I don't know the answer.

Uhm, no?

The Constitution is the supreme law of the land. Only things not enumerated in the bill of rights and the constitution may be changed by the states. A state can't take away free speech,They could until 1925, when the Supreme Court decided that the concept of "liberty" embodied in the 14th Amendment includes the freedom of speech, thereby "incorporating" the speech clause of the First Amendment to apply against the States. (Gitlow v. New York)

or enact torture.Also, technically they could until 1925. (Twining v. New Jersey) Nor can they ban weapons.No case law on this, and at least some reason to think that the courts might rule that the Second Amendment does not apply to the States.

What it is, is an outsider's reading of the text. As an outsider, I would think that would make him a more objective reader than those of us who already have our battle lines drawn.Actually, being an outsider means that he is less likely to understand the terms in which the Amendment is written, and the political society to which it applies. Interpretation is difficult enough without adding cultural differences to the mix.

All rights should be absolute, or they can be nickled and dimed away until there's nothing left.Sure, but the problem is one of definition. The Supreme Court has always had this tricky way of saying "the right to ___ is absolute; however, this right was never meant to include _____." That's what interpretation does. We have an absolute "freedom of speech" and an absolute "right to bear arms." But what counts as "speech"? What does the Amendment mean by "arms"... or, for that matter, by the verb "to bear"? Does it mean we should have no restrictions on when, where, and how people may carry weapons (including, for instance, on airplanes)?

Under this sort of interpretation, free speach would not apply over the telephone, and television and the internet would have no freedom of the press guarentees.
Actually, this is true... at least, as the courts have read the speech and press protections so far. The print press is far more protected than television, and so far electronic communications have been granted few protections whatsoever. There are hints that this is changing... but so far, only hints.

Did you miss the 14th ammendment, and the case law using it to extend the constitutional protections of the Bill of Rights into state law?I didn't. But perhaps you could point out the case that incorporates the Second Amendment?

You are incorrect. If it were clear to all observers that nuclear weapons are not included, that would mean that I would believe that the protection did not extend to nuclear arms. Since I do believe that the protection rightly applies to nuclear weapons, you are clearly mistaken when you say all observers see things your way.

Ah, clearly I should have said all reasonable observers, or something to that effect. If you really believe that all individuals should have the right to own nuclear weapons, then there is little point continuing this discussion, as I doubt you are interested in realistic political debate. (Realistic in two senses: first, it is so unlikely that any government would agree to such a "right" that it is senseless to even discuss it; second, it is so unlikely a reasonable person would agree to this "right," given the strong possibility that it would result in massive casualties and probably the death of us all, that it is senseless to even discuss it while assuming the validity of commonly held values like "continued existence.")

Actually, being an outsider means that he is less likely to understand the terms in which the Amendment is written, and the political society to which it applies. Interpretation is difficult enough without adding cultural differences to the mix.

Trouble is that we've actually had generations of conditioning telling us that our rights aren't absolute, and an outsider can clearly read that as written, they are meant to be.

Sure, but the problem is one of definition. The Supreme Court has always had this tricky way of saying "the right to ___ is absolute; however, this right was never meant to include _____." That's what interpretation does. We have an absolute "freedom of speech" and an absolute "right to bear arms." But what counts as "speech"? What does the Amendment mean by "arms"... or, for that matter, by the verb "to bear"?

And by "interpreting" rights in the way you describe, they are redefined to the point where they are clearly not absolute. I doubt we even have a legal "right" to voice our disagreement with our government any more.

Does it mean we should have no restrictions on when, where, and how people may carry weapons (including, for instance, on airplanes)?

Yes.

Actually, this is true... at least, as the courts have read the speech and press protections so far. The print press is far more protected than television, and so far electronic communications have been granted few protections whatsoever. There are hints that this is changing... but so far, only hints.

And you honestly think this is how our rights should work? That they should be stuck in the 18th century when they were written, and should be left behind with the advancement of something as sociologically trivial as technology?

I didn't. But perhaps you could point out the case that incorporates the Second Amendment?
They incorperated everything else, why should all the precident be ignored?
Ah, clearly I should have said all reasonable observers, or something to that effect.

It wouldn't have discouraged me. In addition to protecting yourself from my arguement, however, you would have made yourself look damn arrogant claiming that your interpretation was the only one any "reasonable" person could possibly come to.

If you really believe that all individuals should have the right to own nuclear weapons, then there is little point continuing this discussion, as I doubt you are interested in realistic political debate.

You're right. What I'm interested in is an internally consistent debate. If the purpose of the ammendment is, as I believe, to serve as a final check against the powers of the government to infringe on the rights of the people, the people must be sufficiently armed to match any potential threat the government can throw at them. Thus, if the government has nukes, so must the people.

(Realistic in two senses: first, it is so unlikely that any government would agree to such a "right" that it is senseless to even discuss it;

And we should be listening to governments (who deny us the right to free expression based on the medium we chose to use) about their opinion on our rights, why?

second, it is so unlikely a reasonable person would agree to this "right," given the strong possibility that it would result in massive casualties and probably the death of us all, that it is senseless to even discuss it while assuming the validity of commonly held values like "continued existence.")
If it is a commonly held value, then people will take measures to ensure they will not have to use the nuclear option. MAD has so far managed to prevent the nuclear powers of the world from going to war with one another, dispite two recent world wars. The same can apply on the level of individuals.

Fourth, if you really want to get your panties in a bunch and be literal about it, the Second Amendment only limits the power of the federal government. The states could still ban weapons.
Now it also sends that similar restriction down to the states via the fourteenth amendment.

I see no logical reason for civilians to possess nuclear weapons.

Tanks, artillery, mortars, grenaders, automatic weaponry, anti-tank mines, RPGs... those I can see. But nukes? What logical purpose would they fulfill? The idea is that as a Patriotic Insurgent/Terrorist you're supposed to be fighting The Man. Not the people. And nukes are only effective when deployed against civilian populations.

Unless your idea of fighting The Man is wiping out half of Los Angeles in one fell-swoop.

See this is how I read it and what I want to know is how does the Amercan government justify the restrictions it places on weapon ownership?

It's probably been said, but the justification comes from the first half of the amendment - the part that states the reason behind giving people the right to bear arms. Yes, we are given the right to bear arms. However, we are given that right so that there can be a well-regulated militia (militia is defined as every able-bodied person) and as there is unlikely a need for a militia to own fully automatic assault rifles, such have been outlawed for the greater good of the populace.

I'm not saying it's right or wrong, just saying how it is.

My personal opinion is that if we would just let them fight it out in the streets, they'd eventually kill themselves off and in the process would help curb the world's population problem...

As for the 2nd amendment rights, there is not one state that should be able to restrict our right to bear arms of any kind - nor can Congress restrict our right to bear arms short of that contrived from 'militia' which, being defined as 'able-bodied citizens,' would allow an age limit and perhaps a physical before purchasing a firearm.

Trouble is that we've actually had generations of conditioning telling us that our rights aren't absolute, and an outsider can clearly read that as written, they are meant to be.Those generations of "conditioning" would be meaningful indeed, if there were any evidence that the people who wrote, passed, and ratified those amendments believed them to be "absolute" in the sense you are advocating. All of the textual evidence is that they did not. Indeed, certain clauses (e.g. establishment and cruel and unusual punishment) have been interpreted more strictly in the last century than in the years immediately after they were written.

And by "interpreting" rights in the way you describe, they are redefined to the point where they are clearly not absolute.That would only mean anything if they were ever absolute in the first place.

And you honestly think this is how our rights should work?No. On the issue of speech protection in new technologies, I think the courts have been highly inconsistent. But for the purposes of this argument, it is highly relevant that legal authorities consider it appropriate to include the facts of changing technology when attempting to interpret what the drafters of the Constitution meant when they wrote it. Technology may change the "common" meaning of words... so to understand the "original" meaning, we may have to think around the technology. ...should be left behind with the advancement of something as sociologically trivial as technology?Since when is technology "sociologically trivial"?

They incorperated everything else, why should all the precident be ignored?First of all, they have not incorporated "everything" else. In addition to the Second Amendment, the Third has never been incorporated; neither has the clause in the Fifth Amendment requiring a grand jury indictment before a criminal prosecution. Neither the Seventh Amendment nor the excessive fines and excessive bail protections of the Eighth Amendment have been incorporated.

More to the point, at every step in the process of incorporation the Court has insisted that it practices selective incorporation: that is, no incorporation ruling should be construed to incorporate the remainder of the Bill of Rights. Only Justice Black has ever advocated total incorporation.

In addition to protecting yourself from my arguement, however, you would have made yourself look damn arrogant claiming that your interpretation was the only one any "reasonable" person could possibly come to.It isn't arrogant, it is the very basis of "rational" debate to assume that a "reasonable" person would only reach a "reasonable" conclusion.

What I'm interested in is an internally consistent debate.That makes you a fine philosopher, perhaps, but not much of a political theory. In the context of political debate, one must always be cognizant of the possible.

If the purpose of the ammendment is, as I believe, to serve as a final check against the powers of the government to infringe on the rights of the people, the people must be sufficiently armed to match any potential threat the government can throw at them.First of all, you have done nothing to establish that this is the purpose of the Amendment. The explicit language (which you find so important) suggests one of two interpretations: either (as some claim) the purpose is to preserve a militia for the use of the government; or, the purpose is (within the context of early federalism) to protect the States from the federal government. I am increasingly of the opinion that the latter interpretation is the better one--and this would be a strong argument against incorporation.

Thus, if the government has nukes, so must the people.IF this follows necessarily from a "right to bear arms" (even in the defense of liberty), then I would be compelled to argue against the right to bear arms... and even the right to rebel against unjust government. Since I support the right to bear arms, as well as the (theoretical) right to rebel (the right to rebel can never be a positive one... since no government would realistically recognize it), I sincerely hope that such rights do not include a right to nuclear weapons. Indeed, this would be a very good argument against including such language in constitutions... so if you want a right to bear arms of any kind, it is probably in your best interest to drop this argument, as you will only alienate potential political allies.

But again, I'm a political theorist, not a philosopher. I care about what we can do with real politics... not merely what would be "logically consistent" in an imaginary (but probably short-lived) world.

And we should be listening to governments (who deny us the right to free expression based on the medium we chose to use) about their opinion on our rights, why?Because the only rights that will ever have any real impact on our lives are the ones that we can convince governments to recognize. If it can be argued that no real government would ever recognize a supposed right, then it may be fun to talk about in philosophy classes, but it will never be of much use in the discussion of politics.

If it is a commonly held value, then people will take measures to ensure they will not have to use the nuclear option.Yes. One very logical measure is to prevent individuals from owning them. MAD has so far managed to prevent the nuclear powers of the world from going to war with one another, dispite two recent world wars. The same can apply on the level of individuals.MAD only works because everyone who has nuclear weapons also has the means to tell when one has been fired at them before they actually get hit. Thus, they can be expected to return fire before they have been destroyed, resulting in mutual destruction.

So, for this to work on the individual level, every individual who owns a nuclear weapon would also have to possess the technology to tell when they had been targeted, so they could retaliate. Should we require that you can only own a nuclear weapon if you have such technology? Ah, but according to you such a law would clearly violate the freedom to bear arms!! Besides which, we would have to deal with the fact that individually-owned nuclear weapons could most easily be used by delivering them to a location personally rather than using ICBMs... so, how do we protect ourselves from the guy who drops off a nuclear bomb two blocks away, probably not even targeting us? Perhaps we'll have to employ massive surveillance and counter-terrorism measures... which would probably involve a greater intrusion on privacy and other rights than simply banning the damn weapons in the first place!!

Also read the rest of the Constitution. It defines what a Militia is and how it operates.

Article 1 Section 8:

Congress Shall have the power.....

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurections 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;

Article 2 Section 2

The President shall be Commander in Cheif of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
Actually, all that defines is what congress can do with said militia. That does not define the activities of the militia itself.

This gives me the idea that a militia, as planned by the founding fathers, is not something to be used against the government, but something to be used by it.

So basically like when the British Army invaded the colonies - you get the local population to fight them. And for that you need weapons.

Maybe people are just interpreting too much into this amendment.
It depends, is it still a free state, or has it turned totalitarian?

Uhm, no?

The Constitution is the supreme law of the land. Only things not enumerated in the bill of rights and the constitution may be changed by the states. A state can't take away free speech, or enact torture. Nor can they ban weapons.

The Bill of Rights did not apply to the states until the 14th Amendment was passed and not all provisions of the BoR have been incorporated through the 14th to apply to the states.

Here is an article from the NRA-ILA explaining that I am right:
http://www.nraila.org/Issues/articles/read.aspx?ID=23

In case you don't trust even the NRA on this, here are a couple of other sources:
http://www.usconstitution.net/consttop_bor.html
http://www.therant.us/staff/nsalvato/judicial_activism_undermines_the_integrity_of_the_constitution_-_1.htm
http://ap.grolier.com/article?assetid=0047310-00&templatename=/article/article.html
(You may note that the second article is a conservative screed against incorporation).

In the first Congress in 1789, Congressman James Madison had submitted proposed amendments for the Bill of Rights. One of Madison's proposed amendments would have prohibited states from violating the rights of conscience, freedom of the press, and trial by jury in criminal cases. The House passed Madison's proposed amendment. But the Senate rejected it because all the states already had their own bills of rights.

In 1833, the Supreme Court addressed the issue and determined the amendments of the Bill of Rights, applied only to the national government and not to the states. Barron v. Baltimore, 7 Peters 243 (1833). You can read the case for yourself at: http://laws.findlaw.com/us/32/243.html. It is pretty short and easy to read.

Before you go on a rant about Barron. The majority opinion was written by Chief Justice John Marsall. He was a hero of the Revolutionary War and a close friend of George Washington. At college, he was taught philosophy by James Madison. He participated in the debates over the ratification of the Constitution as a member of the Virigina legislature. Prior to becoming Chief Justice, he served as Secretary of State.

NOTE: I didn't say the Second Amendment should not be applied to the states. I merely said that if you want to take a literalist view, it does not apply to the states. I think that reasonable possession of firearms is a fundamental liberty that should be protected by the 14th Amendment. That does NOT however mean it is an absolute right to any weapon without regulation or control.

You are incorrect. If it were clear to all observers that nuclear weapons are not included, that would mean that I would believe that the protection did not extend to nuclear arms. Since I do believe that the protection rightly applies to nuclear weapons, you are clearly mistaken when you say all observers see things your way.

The function of the second amendment is to provide a final check on the power of the government, which itself is littered with checks and ballances. In order to exersise that final check on governmental power, the people must have the means to match any potential use of force the government might bring to bear against them. Since the government has an arsonel of nuclear weapons capable of destroying the world seven times over, I don't think a personal nuclear weapon for every household is an unreasonable request.

(Of course of the government no longer had nuclear weapons...)
Nope. You have a clear misunderstanding of how the US constitution works. Leaving aside the procedural constitutional issues that go along with the 2nd amendment, the state has a clear and compelling interest to ban the ownership of nuclear weapons and the harm done is nearly negligible. A law banning private ownership of nuclear weapons is clearly constitutional.

The thing about the 2nd amendment is that it is the final check on a tyranical gov't. The 1st amendment gives the first few checks but eventually the final check (revolution) might be necessary. What the gov't should do is interpert it litterally. Make ownership of any type of fire arm legal, but firing one with out a permit or in a non-permissable situation even with a permit punishable by 2 years in jail per shot fired. This would mean that if you're using a gun in self-defense you will be certain it is defense of life and not property. It would also mean that if the gov't was so terrible people were willing to committ treason (overthrow it) they wouldn't be worried about the firing law.

The thing about the 2nd amendment is that it is the final check on a tyranical gov't. The 1st amendment gives the first few checks but eventually the final check (revolution) might be necessary. What the gov't should do is interpert it litterally. Make ownership of any type of fire arm legal, but firing one with out a permit or in a non-permissable situation even with a permit punishable by 2 years in jail per shot fired. This would mean that if you're using a gun in self-defense you will be certain it is defense of life and not property. It would also mean that if the gov't was so terrible people were willing to committ treason (overthrow it) they wouldn't be worried about the firing law.

Why should we interpret the 2nd Amendment literally, but not the rest of the Constitution?

If you read the 2nd literally, how do you justify limiting people to firearms as opposed to any kind of weapon?

The Second Amendment is not absolute. Get over it.

The thing about the 2nd amendment is that it is the final check on a tyranical gov't.No, it's not.

If it were, you may as well claim a "right" to rebellion that should be recognized by the government... But this is nonsense. If you are trying to overthrow the government, then the government should be expected to take whatever measures are necessary to stop you.

You can't really expect that the drafters of the Second Amendment said to themselves, and to the States that would eventually ratify the Amendment, "you know, we should really give people the right to turn on us."

Early American politics suggests that the Framers had no such intention. They successfully suppressed several early insurrections against the government.

At best, you have a federalism issue: the States may have seen it as a protection for their own interests against a young and very suspicious federal government. But in this case, the States would still have every right to set their own restrictions on gun ownership.

The 1st amendment gives the first few checks but eventually the final check (revolution) might be necessary.Oh, I agree. It's just that I recognize the difference between a theoretical check that exists by the nature of legitimate government, and a political/legal check that can actually be recognize within a real government.

You cannot expect any government to allow for its own demise. Indeed, no constitutional check would do so: should the sort of corrupt government you fear come to power, do you really expect them to obey constitutional mandates? Really?

It's simply nonsense to argue that a constitutional right has anything to do with a right to overthrow government. It's incoherent.

"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."

I was confused over this, and I can see where the confusion comes from. Were the "well regulated Militia" and "the people" considered the same? I don't get it.

Then I heard Penn & Teller's take on it. The "well regulated Militia" and "the people" are not the same. A militia is an army. The founders decided that an army was necessary. But an army is also a threat to the liberty of the public. So the founders decided that an armed public is necessary to guard against an armed militia. That makes perfect sense. No other interpretation is fitting. Any interpretation that doesn't fit with more freedom for the people is an interpretation that doesn't fit with the apparent intention of the other nine amendments.

"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."

I was confused over this, and I can see where the confusion comes from. Were the "well regulated Militia" and "the people" considered the same? I don't get it.

Then I heard Penn & Teller's take on it. The "well regulated Militia" and "the people" are not the same. A militia is an army. The founders decided that an army was necessary. But an army is also a threat to the liberty of the public. So the founders decided that an armed public is necessary to guard against an armed militia. That makes perfect sense. No other interpretation is fitting. Any interpretation that doesn't fit with more freedom for the people is an interpretation that doesn't fit with the apparent intention of the other nine amendments.
The militia were the people. "Penn and Teller" is hardly an appropriate source for constitutional law.

Then I heard Penn & Teller's take on it. The "well regulated Militia" and "the people" are not the same. A militia is an army. The founders decided that an army was necessary. But an army is also a threat to the liberty of the public. So the founders decided that an armed public is necessary to guard against an armed militia. That makes perfect sense. No other interpretation is fitting.Except that there is utterly no evidence that this is what the Amendment's authors had in mind.

In fact, the evidence is that the Amendment was authored partly to preserve the public militias as an alternative to a standing army, not a "check" on one. Other demands for the Amendment, suggesting language preventing martial law, are in accord with the federalism interpretation that I have proposed.

Here are some samples:

Five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All these demands included a right to keep and bear arms. Here, in relevant part, is their text:

New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

Virginia: . . . Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

New York: . . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

North Carolina: Almost identical to Virginia demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms."

Rhode Island: Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York.

I have highlighted a relevant passage for those who think the Second Amendment has something to do with a right to insurrection.

Any interpretation that doesn't fit with more freedom for the people is an interpretation that doesn't fit with the apparent intention of the other nine amendments.

That's right. Unfortunately, Penn & Teller have blatantly ignored any and all actual historical evidence... as usual.

Actually, all that defines is what congress can do with said militia. That does not define the activities of the militia itself.
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurections and repel Invasions;


To provide for organizing, arming, and disciplining, the Militia,

The first part tells what the militia is for the second part tells how it will be governed.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurections and repel Invasions;


To provide for organizing, arming, and disciplining, the Militia,

The first part tells what the militia is for the second part tells how it will be governed.


Perhaps, just maybe...the reason the 2nd amendment contains both "militia" and "the people" is to differentiate between the two. The right is not given to the militia, it's given to "the people." Think about it, now.

I've posted it MANY times in these threads before. Break down the amendment.

Regardless of what the first phrases of the Amendment state, the right that's given is that of "the people to bear arms." Change any of the first half of the Amendment and the end-effect is not changed. It could effectively read:

"Because bananas are yellow and the sky is blue, the right of the people to keep and bear arms, shall not be infringed."

Now, the right remains the same. The only difference is what was the stated reason. One could even point out that there are excessive commas that serve to break down the right for us - one comma-spliced phrase even outlines exactly what the right is: "the right of the people to keep and bear arms" and then explicitly declares that right "shall not be infringed"


Change the Amendment to read:

"A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear bananas, shall not be infringed."

Well, hell. The entire right given to the people has changed, regardless that the reason stays the same. For whatever reason, the people now have the right to keep and bear bananas. Who cares why they can do it, but they must be allowed to do it.

Perhaps, just maybe...the reason the 2nd amendment contains both "militia" and "the people" is to differentiate between the two. The right is not given to the militia, it's given to "the people." Think about it, now.

I've posted it MANY times in these threads before. Break down the amendment.

Regardless of what the first phrases of the Amendment state, the right that's given is that of "the people to bear arms." Change any of the first half of the Amendment and the end-effect is not changed. It could effectively read:

"Because bananas are yellow and the sky is blue, the right of the people to keep and bear arms, shall not be infringed."

Now, the right remains the same. The only difference is what was the stated reason. One could even point out that there are excessive commas that serve to break down the right for us - one comma-spliced phrase even outlines exactly what the right is: "the right of the people to keep and bear arms" and then explicitly declares that right "shall not be infringed"


Change the Amendment to read:

"A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear bananas, shall not be infringed."

Well, hell. The entire right given to the people has changed, regardless that the reason stays the same. For whatever reason, the people now have the right to keep and bear bananas. Who cares why they can do it, but they must be allowed to do it.


Yeah the Founders are known for throwing lots of meaningless phrases into the Constitution. We should feel free to ignore any of which we don't like the implication.

Yeah the Founders are known for throwing lots of meaningless phrases into the Constitution. We should feel free to ignore any of which we don't like the implication.

Explain to me how providing for a militia (which is defined as able-bodied people, not necessarily a standing army and is the basis for the National Guard) in any way, shape, or form, would allow limits to be put on a right that cannot be infringed on?

EDIT: I might also mention that the first thing I stated was this: Perhaps, just maybe...the reason the 2nd amendment contains both "militia" and "the people" is to differentiate between the two. The right is not given to the militia, it's given to "the people." Think about it, now. That would tend to lead one to believe there was indeed a reason behind the words in the Amendment.


And I'll thank you to keep your snide comments to yourself. If you want to debate, debate. If you want to post snide comments, then dont expect to be taken seriously.

Explain to me how providing for a militia (which is defined as able-bodied people, not necessarily a standing army and is the basis for the National Guard) in any way, shape, or form, would allow limits to be put on a right that cannot be infringed on?

And I'll thank you to keep your snide comments to yourself. If you want to debate, debate. If you want to post snide comments, then dont expect to be taken seriously.

Come now, sarcasm is a perfectly acceptable form of argument.

Nice circular argument on what the militia is. Remember that Good Lifes was quoting the Constitution as to the regulation of the militia in the first place.

I could argue -- as nigh every one of scores of US courts has done -- that the Second Amendment clearly protects the rights of states to have armed militias and nothing more, but we actually agree that there is a right to possess firearms that should be protected by the Second Amendment. I simply do not see that right as absolute.

But your argument, especially in light of the history of the Amendment, that we can just ignore part of it is wrong. Can we ignore part of the First Amendment?

Come now, sarcasm is a perfectly acceptable form of argument.

Nice circular argument on what the militia is. Remember that Good Lifes was quoting the Constitution as to the regulation of the militia in the first place.

I could argue -- as nigh every one of scores of US courts has done -- that the Second Amendment clearly protects the rights of states to have armed militias and nothing more, but we actually agree that there is a right to possess firearms that should be protected by the Second Amendment. I simply do not see that right as absolute.

But your argument, especially in light of the history of the Amendment, that we can just ignore part of it is wrong. Can we ignore part of the First Amendment?

So we cant ignore part of the Constitution...but we'll just limit the uninfringible rights... makes perfect sense.

EDIT: Not to mention, the 1st Amendment is written differently and is therefore not comparing apples to apples. The 1st Amendment in no way, shape, or form even offers a reason behind the rights provided. It simply provides them - much the same as the 2nd part of the 2nd Amendment

So we cant ignore part of the Constitution...but we'll just limit the uninfringible rights... makes perfect sense.

Makes more sense than the idea that Constitution protects any absolute rights.

None of the rights in the Bill of Rights are absolute.

Or do you think defamation laws are unconstitional?

EDIT: There is far more to interpreting and applying the Constitution than merely the literal translation of the words. This always has been and should be the case -- it was what was intended.

Makes more sense than the idea that Constitution protects any absolute rights.

None of the rights in the Bill of Rights are absolute.

Or do you think defamation laws are unconstitional?

Everyone has the right to say what they want. If it offends you, tough. You have the right to be offended. Defamation laws are the beginning of censorship. Just because I lie doesnt mean that you cant find out the truth for yourself.


Of course, I firmly believe that the Gov't needs to quit messing with people's lives so much and focus more on handling business to protect the people's interests.

Everyone has the right to say what they want. If it offends you, tough. You have the right to be offended. Defamation laws are the beginning of censorship. Just because I lie doesnt mean that you cant find out the truth for yourself.


Of course, I firmly believe that the Gov't needs to quit messing with people's lives so much and focus more on handling business to protect the people's interests.

So, despite the intent of the Founders, defamation is protected? I see.

Does this literalism work both ways? If "no law" means "no law," is there a right to association? Is there a right to vote? What about other unenumerated rights?

Are all rights absolute or just free speech and weapons ownership? Do I have a right to raise my own children and, if so, does that mean the government cannot interfere in any way with how I raise them?

Does the right to bear arms extend -- as the OP asked -- to nuclear weapons? If not, why not?

I could argue -- as nigh every one of scores of US courts has done -- that the Second Amendment clearly protects the rights of states to have armed militias and nothing more,

Cat-Tribe, if you have a chance can you look up some specific cases? This is essentially the argument that I have been making, and it will impress my public law professor if it turns out to reflect actual doctrine.

;)

So, despite the intent of the Founders, defamation is protected? I see.

Does this literalism work both ways? If "no law" means "no law," is there a right to association? Is there a right to vote? What about other unenumerated rights?

Are all rights absolute or just free speech and weapons ownership? Do I have a right to raise my own children and, if so, does that mean the government cannot interfere in any way with how I raise them?

Does the right to bear arms extend -- as the OP asked -- to nuclear weapons? If not, why not?
If the founders, as you so clearly stated before, were very particular about their wording...why should we not interpret literally? They obviously chose that specific language for a reason. Rights dont just disappear one day, they slowly are infringed on till they're gone - that's what the Founders wanted to protect against. Since you cant really draw a line in the sand that declares when it's gone too far, the Founders stated the line was that there would be no laws infringing on certain rights - and in fact the Constitution clearly states that we are afforded all rights that have not been expressly denied.

Cat-Tribe, if you have a chance can you look up some specific cases? This is essentially the argument that I have been making, and it will impress my public law professor if it turns out to reflect actual doctrine.

;)

Here are some.
link (http://forums.jolt.co.uk/showpost.php?p=8626734&postcount=392)
link (http://forums.jolt.co.uk/showpost.php?p=8622863&postcount=366)

If the founders, as you so clearly stated before, were very particular about their wording...why should we not interpret literally? They obviously chose that specific language for a reason. Rights dont just disappear one day, they slowly are infringed on till they're gone - that's what the Founders wanted to protect against. Since you cant really draw a line in the sand that declares when it's gone too far, the Founders stated the line was that there would be no laws infringing on certain rights - and in fact the Constitution clearly states that we are afforded all rights that have not been expressly denied.

You failed to respond to most of my inquiries. I wonder why.

We should interpret literally, but we can ignore half of an amendment. My position is reconcilable. I'm not sure your's is.

In many cases the Founders particularly chose vague wording. The Founders specifically intended the Constitution to be interpreted by the Supreme Court.

There is a wide area between an absolute right and no right at all. Our right to free speech has not been held to be absolute. Would you contend we have no free speech in the US at all?

I always thought that that second ammendment meant that you had the right to hang bear arms from your wall...

You failed to respond to most of my inquiries. I wonder why.

We should interpret literally, but we can ignore half of an amendment. My position is reconcilable. I'm not sure your's is.

In many cases the Founders particularly chose vague wording. The Founders specifically intended the Constitution to be interpreted by the Supreme Court.

There is a wide area between an absolute right and no right at all. Our right to free speech has not been held to be absolute. Would you contend we have no free speech in the US at all?

If our speech is either free or it is not, then we have no free speech. We do have a certain freedom in our speech, but there are also certain limits. For instance, libel, saying that you're going to kill the President and so forth. In many work places you can be fired for saying certain things and in some others, you are not allowed to say some things in the first place (public school teachers, soldiers, intelligence operatives, radio and TV broadcasters, &c.).

Because our speech is controlled, is it free? Or is it not?

You failed to respond to most of my inquiries. I wonder why.

We should interpret literally, but we can ignore half of an amendment. My position is reconcilable. I'm not sure your's is.

In many cases the Founders particularly chose vague wording. The Founders specifically intended the Constitution to be interpreted by the Supreme Court.

There is a wide area between an absolute right and no right at all. Our right to free speech has not been held to be absolute. Would you contend we have no free speech in the US at all?

I thought I'd answered your queries indirectly. The Constitution is quite clear that the right to bear arms is not to be infringed on. If that includes Nuclear weapons, then so be it. Nothing is stopping the US Congress from amending the Constitution to specifically address that threat. Regardless of whether I personally think it wise to allow access to nuclear arms, the Constitution - as it's written - allows it.

I've yet to see how you can interpret "shall not be infringed" to mean that laws can be passed limiting how the people are allowed to arm themselves. If the Founders had intended for only the militia to be armed, would the amendment not have read "the right of the militia to keep and bear arms?" Or if they'd intended for no distinction to be made between "militia" and "the people," could they not have used "a well-armed population being necessary for the..." I do believe that the Founders intended for the Militia to be viewed as seperate from, but related to, the general populace. Yes, Congress has power to call up a militia and to then run that militia. However, THE PEOPLE have the right to keep and bear arms.

Back to nuclear weapons. If we want to ban personal nuclear armament, an amendment to the Constitution would be required. Some parts of the Constitution are flexible. However, the 2nd amendment states very clearly that the right of the people shall not be infringed. How can that be interpreted to mean anything but that?

If our speech is either free or it is not, then we have no free speech. We do have a certain freedom in our speech, but there are also certain limits. For instance, libel, saying that you're going to kill the President and so forth. In many work places you can be fired for saying certain things and in some others, you are not allowed to say some things in the first place (public school teachers, soldiers, intelligence operatives, radio and TV broadcasters, &c.).

Because our speech is controlled, is it free? Or is it not?

Well, you are confusing a few concepts, but that is part of why absolutism is silly.

We have a strong, expansive right to free speech, but it is not limitless. Thus, I would say we have free speech even though our right to free speech is not an absolute right to say anything anytime.

AS to workplaces, the First Amendment doesn't apply. It only limits government action (more specifically only federal action, but the 1st as incorporated through the 14th limits state action).

One of the reasons we should beware of a literal interpretation is that free speech and free press encompass more than just talking -- it includes all forms of communication, even those not known at the time of the Founders.

EDIT: BTW, there is a whole other thread (http://forums.jolt.co.uk/showthread.php?t=478396)on strict construction of the Constitution.

I thought I'd answered your queries indirectly. The Constitution is quite clear that the right to bear arms is not to be infringed on. If that includes Nuclear weapons, then so be it. Nothing is stopping the US Congress from amending the Constitution to specifically address that threat. Regardless of whether I personally think it wise to allow access to nuclear arms, the Constitution - as it's written - allows it.

I've yet to see how you can interpret "shall not be infringed" to mean that laws can be passed limiting how the people are allowed to arm themselves. If the Founders had intended for only the militia to be armed, would the amendment not have read "the right of the militia to keep and bear arms?" Or if they'd intended for no distinction to be made between "militia" and "the people," could they not have used "a well-armed population being necessary for the..." I do believe that the Founders intended for the Militia to be viewed as seperate from, but related to, the general populace. Yes, Congress has power to call up a militia and to then run that militia. However, THE PEOPLE have the right to keep and bear arms.

Back to nuclear weapons. If we want to ban personal nuclear armament, an amendment to the Constitution would be required. Some parts of the Constitution are flexible. However, the 2nd amendment states very clearly that the right of the people shall not be infringed. How can that be interpreted to mean anything but that?

I think we will have to agree to disagree. I simply think a literalist doctrine is silly. Neither the purpose nor the intent of the Second Amendment is furthered by holding it protects nuclear weapons and the consequences of such a doctrine are obviously absurd.

This is also why I think one should not base one's approach to the Constitution on a single Amendment.

what does "infringed" mean? is any limitation or regulation whatsoever necessarily infringement?

Does your literalism run both ways? Is there a right to association? To privacy? Can those rights be implied?

I think we will have to agree to disagree. I simply think a literalist doctrine is silly. Neither the purpose nor the intent of the Second Amendment is furthered by holding it protects nuclear weapons and the consequences of such a doctrine are obviously absurd.

This is also why I think one should not base one's approach to the Constitution on a single Amendment.

what does "infringed" mean? is any limitation or regulation whatsoever necessarily infringement?

Does your literalism run both ways? Is there a right to association? To privacy? Can those rights be implied?
If the founders had not wanted excessively forceful arms to be in the hands of the common people (and yes, they had excessively forceful arms such as cannon, etc) why did they not state so? I'm sure they could not have imagined the power of the weapons available today, however, they could have thrown a catch-all phrase of 'excessively powerful' allowing that to be determined by the Supreme Court. If, as you have clearly argued previously, the Founders were so particular about their language, then we have to deal with the fact that they used absolutes - that's what laws have to be to be effective. If they'd wanted all the rights to be interpreted by the Supreme Court, they would have used fewer absolutes. It's really quite that simple.

If the founders had not wanted excessively forceful arms to be in the hands of the common people (and yes, they had excessively forceful arms such as cannon, etc) why did they not state so? I'm sure they could not have imagined the power of the weapons available today, however, they could have thrown a catch-all phrase of 'excessively powerful' allowing that to be determined by the Supreme Court. If, as you have clearly argued previously, the Founders were so particular about their language, then we have to deal with the fact that they used absolutes - that's what laws have to be to be effective. If they'd wanted all the rights to be interpreted by the Supreme Court, they would have used fewer absolutes. It's really quite that simple.

I think I've already illustrated that the words are not as absolutist as you suggest. OK, no infringement. But what is and is not an infringement? http://www.m-w.com/dictionary/infringed

similarly the "right of the people to keep and bear arms" does not necessarily mean the right to keep any weapon. In fact, the Oxford English Dictionary, makes clear that -- particularly at the time the Second Amendment was written and adopted -- "to bear arms" meant "to serve as a soldier, do military service, fight."

The Oxford English Dictionary defines "to bear arms" as meaning "to serve as a soldier, do military service, fight." 1 OED 634
(J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989) (hereinafter, "OED"). It defines "to bear arms against" as meaning "to be engaged in hostilities with." 2 id. at 21. As an exemplary use of the phrase in 1769, the OED gives "An ample pardon . . . to all who had born arms against him," and the exemplary use from 1609 is "He bare arms, and made weir against the king." Id.

In the mid-19th century the original usage of "bear arms" was still understood:

"The 28th section of our bill of rights provides "that no citizen of this state shall be compelled to bear arms provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a
private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane."
Aymette v. State, 2 Humphreys 154 (Tenn. 1840)

We should not limit our rights by the literal language of the Constitution. Again, you duck the fact that literalism cuts both ways. (And was contrary to the expressed and acted upon intent of the Founders).

Judge Richard Posner on the Importance of Judicial Gap-Filling:

A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning the use or distribution of contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home....We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution.

So does that make it unconstitutional to deny openly homosexual people from serving in the military?

Then I heard Penn & Teller's take on it. The "well regulated Militia" and "the people" are not the same. A militia is an army. The founders decided that an army was necessary. But an army is also a threat to the liberty of the public. So the founders decided that an armed public is necessary to guard against an armed militia. That makes perfect sense. No other interpretation is fitting. Any interpretation that doesn't fit with more freedom for the people is an interpretation that doesn't fit with the apparent intention of the other nine amendments.
There's a reason the show is called "Bullshit!" ;)

So does that make it unconstitutional to deny openly homosexual people from serving in the military?

LOL. That is an interesting question.

But I think it is better resolved by the 14th Amendment and the Equal Protection Clause.

The militia were the people. "Penn and Teller" is hardly an appropriate source for constitutional law.I don't take the authority of Penn and Teller, but their explanation of the second amendment is the most sensible one I have found. A "militia" is not defined as being equal to the civilian population and never was.

I don't take the authority of Penn and Teller, but their explanation of the second amendment is the most sensible one I have found. A "militia" is not defined as being equal to the civilian population and never was.

The logic of your interpretation is bizarre. I don't understand it and I've seen that episode of Penn & Teller.

You seem to be saying the right of the people to bear arms is so they can fight the militia named in the first part of the Amendment. But that is the opposite of what the Amendment actually says.

Try reading United States v. Miller (http://laws.findlaw.com/us/307/174.html), 307 US 174 (1939)

First of all, that may be one reading of it, but it isn't the majority view.

Which is a great fact that "majority"/"minority" and its like are meaningless to me. A thing is eisther correct in original intent, or incorrect... And the "majority view" is not following the "original intent".


Secondly, none of the Bill of Rights are absolute. Free speech doesn't protect defamation or words that pose a clear and present danger. The Second Amendment does not protect the right to possess any weapon.

Correct, it only protects their right to "keep and bear arms" which are necessary to maintain the "security" of the "free state". Which by definition, purpose and intent is MILITARY GRADE weapons for their use as the "Militia".


Third, what were arms at the time the Amendment was written. Was it the original intent for people to have nuclear weapons? Obviously not.

Obviously so... The original purpose was the possession of military grade armorments capable of waging war against normal military forces... Not particularly "nuclear weapons", but the founders would have understood that weapons technology would have advanced, and so used a very generic term "arms" to describe that which the government could not infringe upon the possession of by the people.


Fourth, if you really want to get your panties in a bunch and be literal about it, the Second Amendment only limits the power of the federal government. The states could still ban weapons.

14th Amendment would apply the 2nd to the states as much as it does the operative clauses of the 1st, 3rd, 4th, 5th, etc.

Which is a great fact that "majority"/"minority" and its like are meaningless to me. A thing is eisther correct in original intent, or incorrect... And the "majority view" is not following the "original intent".Right. Because you know exactly what that is.

One of the main reasons we have a Supreme Court is because people disagree over what the Constitution means... not to mention most of the other laws that legislators draft. Because in some cases the meaning must be identified in order to resolve a dispute, we have a court system--and ultimately a Supreme Court--to interpret the Constitution and the law.

For purposes of Constitutional interpretation, therefore, a decision of the Supreme Court is extremely important. Even plurality decisions and dissents are considered useful guides to interpretation. Majority opinions are relatively binding, in the sense that if you want to argue that they are incorrect, the burden of proof rests entirely with you. Unanimous opinions are even stronger, and the longer-lasting the doctrine the more it should control useful interpretations of the Constitution.

In the case of the Second Amendment, the courts have decided the same way consistently for our entire history: the Amendment protects a State's power to raise an independent militia. Therefore, it restricts only the federal government, as State's may do what they want to regulate their own militia. Moreover, the Amendment allows for broad federal restrictions that cannot reasonably be shown to affect the state militia.

Correct, it only protects their right to "keep and bear arms" which are necessary to maintain the "security" of the "free state". Which by definition, purpose and intent is MILITARY GRADE weapons for their use as the "Militia".Actually, the Court agrees with this view. Of course, it also recognizes that, for these purposes, the Amendment only protects such ownership as it is reasonably related to membership in a State militia.

Obviously so... The original purpose was the possession of military grade armorments capable of waging war against normal military forces...Yes, State militias relied on the ability of private individuals to show up with the arms that they personally would need. Soldiers were expected to arrive with their own rifle and a knife. They were not expected to arrive with cannons, bombs, or their own battleship.

States and local governments kept armories in those days, just as governments keep armories now. They neither needed nor allowed private individuals to keep large military arms.

Not particularly "nuclear weapons", but the founders would have understood that weapons technology would have advanced, and so used a very generic term "arms" to describe that which the government could not infringe upon the possession of by the people.The government did then, always has, and always will prohibit private people from owning a variety of weaponry that is not necessary for casual personal use, and which it would be dangerous to allow to proliferate in a private market.

14th Amendment would apply the 2nd to the states as much as it does the operative clauses of the 1st, 3rd, 4th, 5th, etc.Nope. For claiming to prefer the "literal" interpretation of this text, you sure are hot for total incorporation.

Nowhere in the Fourteenth Amendment does it say that the Bill of Rights should apply to the States. Rather, this notion is a doctrinal interpretation claiming to identify the meaning of the term "liberty" in the Due Process clause of the Fourteenth Amendment.

It is a matter of some dispute on the Court just how much of the Bill of Rights is "incorporated" by the Fourteenth Amendments's Due Process clause. Only Justice Black has ever favored the "total incorporation" model that incorporates all of the Bill of Rights. Meanwhile, most of these protections have been selectively incorporated... but not the Second (or the Third for that matter). And given the controlling doctrine on the Second Amendment, it does not seem likely that it will be incorporated any time soon. The Court reads it as a federal-state issue, which it probably was.

Honestly, if the government goes really corrupt and all the rednecks turn out to 'git me some feds, hyuck!' they wouldn't fare too well against one of the largest and most powerful armies in the world.

Variously armed civilians Vs. corrupt government forces armed with the latest weapons.

So does that make it unconstitutional to deny openly homosexual people from serving in the military?

The military has an extra set of laws that further those of the Constitution and the respective states. Time and again, the Supreme Court has refused to take cases based on those laws due to the need for military command to remain somewhat absolute. Check out the UCMJ. If you can be a homosexual male without committing sodomy, power to you.

The Military has to look at the overall morale and welfare of the troops. Far too many 'good ol' boys' are anti-homosexual and allowing outwardly homosexuals into the military can quite severly detract from unit cohesiveness.

(I personally dont give a shit about the sexuality of the guy/girl in the foxhole with me just as long as he or she is covering my back)

It isn't arrogant, it is the very basis of "rational" debate to assume that a "reasonable" person would only reach a "reasonable" conclusion.

What was arrogant was that you stated that your opinion was the only one a "reasonable" person would come to, or rather that your own interpretation was the only "reasonable" one. It isn't arrogant to assume that reasonable people reach reasonable conclusions, but it is arrogant to assume anyone who disagrees with you is not a "reasonable person".

That makes you a fine philosopher, perhaps, but not much of a political theory. In the context of political debate, one must always be cognizant of the possible.

First of all, you have done nothing to establish that this is the purpose of the Amendment. The explicit language (which you find so important) suggests one of two interpretations: either (as some claim) the purpose is to preserve a militia for the use of the government; or, the purpose is (within the context of early federalism) to protect the States from the federal government. I am increasingly of the opinion that the latter interpretation is the better one--and this would be a strong argument against incorporation.

IF this follows necessarily from a "right to bear arms" (even in the defense of liberty), then I would be compelled to argue against the right to bear arms... and even the right to rebel against unjust government. Since I support the right to bear arms, as well as the (theoretical) right to rebel (the right to rebel can never be a positive one... since no government would realistically recognize it), I sincerely hope that such rights do not include a right to nuclear weapons. Indeed, this would be a very good argument against including such language in constitutions... so if you want a right to bear arms of any kind, it is probably in your best interest to drop this argument, as you will only alienate potential political allies.

But again, I'm a political theorist, not a philosopher. I care about what we can do with real politics... not merely what would be "logically consistent" in an imaginary (but probably short-lived) world.

Because the only rights that will ever have any real impact on our lives are the ones that we can convince governments to recognize. If it can be argued that no real government would ever recognize a supposed right, then it may be fun to talk about in philosophy classes, but it will never be of much use in the discussion of politics.

Then it's time to throw the constitution out the window. It's about as meaningful as so much toilet paper when discussing what is politically possible. The constitution, and particularly the Bill of Rights, is not about what is possible, but rather what is desirable. While it may not be politically possible to protect people who say things the majority disagree with, that right is enshrined in the first ammendment. While it may not be politically possible for a government to give its people the means to rebel, that right is enshrined in the second ammendment.

Under your views, I see no reason to even bother with the constitution, liberally interpreted or not. We might as well just get back to doing things with shouting matches and death threats, since that's the only way problems get solved here in the real world.

The Military has to look at the overall morale and welfare of the troops. Far too many 'good ol' boys' are anti-homosexual and allowing outwardly homosexuals into the military can quite severly detract from unit cohesiveness.

Just like allowing blacks in did. :rolleyes:

Honestly, if the government goes really corrupt and all the rednecks turn out to 'git me some feds, hyuck!' they wouldn't fare too well against one of the largest and most powerful armies in the world.

Variously armed civilians Vs. corrupt government forces armed with the latest weapons.
I doubt if the armed forces of the US could stand if just 10% of the people decided to fight guerilla.

Armies designed to fight toe to toe just don't have a chance when fighting the people who actually live on the land. Someday the people in charge will learn the lessons of Vietnam and Bushnam.

My 2 cents:

From what I've read, the 2nd Ammendment only prohibits the government from banning the right to bear arms in general. I'm fairly certain that banning assualt weapons isn't preventing anyone from getting their hands on a pistol. Therefore, people can still be armed, so the law is, well, legal.

What was arrogant was that you stated that your opinion was the only one a "reasonable" person would come to, or rather that your own interpretation was the only "reasonable" one.Is it not possible that I was right? It isn't arrogant to assume that reasonable people reach reasonable conclusions, but it is arrogant to assume anyone who disagrees with you is not a "reasonable person".What makes you think I was "assuming" anything?

Look, sometimes reasonable people disagree. Sometimes there is a difference of opinion, and a reasonable person could reach either conclusion (or perhaps others). When this sort of case comes to the Supreme Court, usually at least some justices argue for judicial restraint: they urge that if the constitutional interpretation of the government is a "reasonable" one, then the Court should rule in their favor even if the Court disagrees with that interpretation.

Other times, the Court will do one of two things: either it will apply some version of the rational basis test, and find that no reasonable person could so stretch the Constitution as to mean what the government claims it means; or, the Court decides that under the circumstances a stronger test than mere "rationality" applies.

What does all this means in terms of Second Amendment protection of nuclear weapons and a supposed right to rebel?

Well, in the first place it means that if there is room for reasonable disagreement, the Court will tend to side with the government... as the coequal branches are, in the theory of judicial restraint, also coequal interpreters of the Constitution. So, if you continue to claim that my only mistake was in arguing that "only" my position is reasonable, you still lose within the only framework for constitutional interpretation we have.

If, on the other hand, the Court were to apply a higher standard than mere rationality to the Second Amendment, it would be something like this: Is the apparent violation of the Amendment necessary ("narrowly tailored," etc) to achieving a compelling government interest? Since few people could be convinced that preventing nuclear proliferation and surviving insurrection are NOT "compelling" government interests, the more restrictive interpretation wins again.

This is the only framework for Constitutional interpretation we have. It strikes a necessary tension between what we would like the document to say, and what it is currently taken to mean. It tells us how far the document can be stretched.

I may disagree with arguments that the federal government should not be allowed to restrict ownership of M-16s and other military-grade individual armaments... but the argument that the Second Amendment protects such ownership is at least reasonable (see, I am happy to admit it where it happens to be true). The text will admit this meaning, and it is something you can fight for politically.

Yet I maintain, as I am confident the Court would maintain, that nuclear weapons and open insurrection are clearly prohibited, unprotected by the Second Amendment. No reasonable person could believe that the Framers would allow such rights. Even Thomas Jefferson, the greatest fan of rebellion ever, argued no further than that rebels should be "mildly punished"... yet had he considered rebellion a "right," how could he advocate punishment at all?

Then it's time to throw the constitution out the window.This may be true, but not for the reasons you think. I think it should be rewritten because it has been interpreted far too expansively to meet the needs of a changing world... expansions with which I happen to agree, but which I do not think are supported by the Constitution. And I think it is dangerous to base law on a Constitution stretched so far past its limit. (I am thinking of the commerce clause doctrine. I think that the Lochner-era Court made a brave stand for Constitutional interpretation... only to finally concede to the pressing needs of the federal government in the Great Depression. I think that the expansive reading of the commerce clause that has been accepted since that time is out of keeping with the intent of the language. Since I neither want these policies to vanish nor expect them to do so, however, I would argue for a new Constitution incorporating (and defining, limiting) this new power.) It's about as meaningful as so much toilet paper when discussing what is politically possible.On the contrary, the United States Constitution is one of the greatest documents of the politically possible ever written. Hence the famous Madison "if men were angels" quotation in The Federalist. You should also read his notes from the Constitutional Convention. It was very much about the "possible." The Framers, for instance, considered the Office of the President the greatest embarassment to republican politics in history. Republican theorists of what "should be" uniformly condemned the idea of a strong executive. The Framers decided to include a powerful President not because it was desired (at least, not by most of them), but because it was necessary.

And surely you are aware of the many compromises that made their way into the Constitution? The two houses of Congress, the Electoral College, the several compromises over slavery?

Perhaps we are reading different documents, but my Constitution is very much a political one, not a philosophical one.

While it may not be politically possible to protect people who say things the majority disagree with, that right is enshrined in the first ammendment.Oh, but it is possible, as evidenced by the fact that it happens. While it may not be politically possible for a government to give its people the means to rebel, that right is enshrined in the second ammendment. This is NOT possible, as evidenced by the fact that a) it has never happened in known history that a government has "allowed" its people to rebel; b) there is no reason to believe that any government, ever, would make such a move.

Talking about how the world "should be" is good. It can identify directions for progress. But if the discussion does not retain at least some theoretical link to the actual, it is pointless. When your asserted "right" is a theoretical impossibility, it is not a "right." It can never be right to do the impossible... since that would make everything actual, wrong.

Under your views, I see no reason to even bother with the constitution, liberally interpreted or not. We might as well just get back to doing things with shouting matches and death threats, since that's the only way problems get solved here in the real world.Ah, hyperbole or a false dilemma... Hmm? Shall I accuse you merely of cheap rhetoric, or a logical fallacy?

I guess you get the benefit of the doubt, and we can settle on cheap theatrics.

I think that the Lochner-era Court made a brave stand for Constitutional interpretation... only to finally concede to the pressing needs of the federal government in the Great Depression. I think that the expansive reading of the commerce clause that has been accepted since that time is out of keeping with the intent of the language. Since I neither want these policies to vanish nor expect them to do so, however, I would argue for a new Constitution incorporating (and defining, limiting) this new power.)

I'd disagree. The Lochner courts were perhaps the most egregious examples of judicial activism that we've faced in this country, simply because they made up the right of contract to overrule a legislative body, and repetedly refused to listen to compelling interest arguments from the state.

I'd disagree. The Lochner courts were perhaps the most egregious examples of judicial activism that we've faced in this country, simply because they made up the right of contract to overrule a legislative body, and repetedly refused to listen to compelling interest arguments from the state.Ah, but they never talk about the "right to contract" in any of their opinions. This is an accusation made against them in a dissent, not part of the actual doctrine.

They actually rest their activism on an historically sound interpretation of due process and equal protection that believed the government acts as a neutral arbiter among social classes in conflict. What the government may not do, according to the Framers, is step in to "tip the scales" of competition to benefit one class... even if that class desperately needs it.

See The Constitution Besieged: The Rise and Demise of Lochner-Era Police Powers Jurisprudence, by Howard Gillman.

It's an excellent book, well-received by legal, historical, and political-theoretic communities alike, which reconstructs the Lochner-era arguments according to how they would have been understood by the people writing them.

Ah, but they never talk about the "right to contract" in any of their opinions. This is an accusation made against them in a dissent, not part of the actual doctrine.

The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.


The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.

They didn't?


They actually rest their activism on an historically sound interpretation of due process and equal protection that believed the government acts as a neutral arbiter among social classes in conflict. What the government may not do, according to the Framers, is step in to "tip the scales" of competition to benefit one class... even if that class desperately needs it.

See The Constitution Besieged: The Rise and Demise of Lochner-Era Police Powers Jurisprudence, by Howard Gillman.

It's an excellent book, well-received by legal, historical, and political-theoretic communities alike, which reconstructs the Lochner-era arguments according to how they would have been understood by the people writing them.
I will read it. However, I don't buy the argument that congress is forbidden from placing restrictions on labor even when it has a rather clear compelling interest to do so (say nothing of interstate commerce).

They didn't?You cite the words "right to contract" as used in the Lochner decision. However, these are obiter dicta: the decision in Lochner does not rest on the inviolable nature of a supposed right to contract, but on the preferential treatment that the Court believes the legislation in question approves.

The Due Process clause of the Fourteenth Amendment is taken to include in its protections all amorphous "liberties" that a person has... If the government will impose on anyone's liberty to do anything, it must have a reason--it must not be arbitrary.

This does not give a special value to the "right to contract"... It just states that it is the same as any other right a free person has, and if the State would violate that right it must have a good reason. Justice Peckham goes on to say as much immediately following the first line you cite:

The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the 14th Amendment was not designed to interfere.

The state, therefore, has power to prevent the individual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. If the contract be one which the state, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the 14th Amendment. Contracts in violation of a statute, either of the Federal or state government, or a contract to let one's property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution, as coming under the liberty of person or of free contract.

In fact, in the great majority of economic regulation and contract cases in this era, the Court upheld the legislation. It is a relatively narrow band of cases in which the Court thought the government went too far.

Gillman's book sets out to solve this puzzle: the evidence is against the "contract rights" theory. If the Court's reasoning in this era were to defend a broad notion of contract rights, then they would have attacked a much wider range of legislation that affected contracts. Instead, they struck legislation according to a much narrower rule.

Gillman finds that this rule derives from the earliest police powers jurisprudence (which actually precedes the Fourteenth Amendment), and from the legislative history of the Fourteenth Amendment itself. When the Court finds that the State exercises police powers to promote the general welfare, with incidental effects on the due process liberties of those involved, then it upholds the legislation. When, however, the Court finds that the legislation protects only a particular group, or gives some advantage to a particular group--whether it is businessmen who would gain a monopoly, or bakers who would get shorter hours--the Court rules against the government.

In other words, the rule had nothing to do with the "extent" to which a "right to contract" was violated, since in most cases far greater violations were allowed. Rather, the question the Court asked was, "does the legislation have a general effect, or a particular effect?" The rule, based in the earliest concepts of government in our country, was that allowable legislation is that which applies to everyone the same, which does not pick out particular groups for favoritism.

I will read it. However, I don't buy the argument that congress is forbidden from placing restrictions on labor even when it has a rather clear compelling interest to do so (say nothing of interstate commerce).

The argument ultimately rests on an assumption of fundamental equality between individuals, which was more realistic for our Framers, who would not live to see the manner in which capitalism would evolve. The Court finally decided that when competition between classes is fundamentally unequal, the government may step in to tip the scales... This, I think, is the more appropriate position for the modern world.

But it is not a position, I think, that our Framers had contemplated... and it is not a position that comports with the Constitution they wrote.

For this reason, after the Court shifted gears in the 30s it is no longer clear what limits, if any, actually restrict our government. The old limits no longer make sense... but they were the only ones provided by our Constitution. Any new limits are simply being invented by the Supreme Court. They have left the realm of interpretation, and have entered the world of imagination.

I think this is a dangerous situation, and one that (ideally) should be remedied. The only remedy that seems fitted to the problem is a new Constitution, or at least an Amendment to the old one.

It is my belief that these rights given to bare arms were specifically designed not to protect the citizen from foreign invaders, but to protect the People from their own government, should such Government institute Tyranny.

It is my belief that these rights given to bare arms were specifically designed not to protect the citizen from foreign invaders, but to protect the People from their own government, should such Government institute Tyranny.Right. And the Framers only said the exact opposite in the text of the Amendment... why? Because they were just tricksy like that?

To those saying that the bill of rights are not absolute, I must say that in theory they should be absolute. The constitution is the supreme law of the land, and an amendment to the constitution is therefore supreme law. The only thing that should be able to encroach on it is another amendment.

That being said, of course things are completely different in practice. What power does a piece of paper have if the majority of federal officials in all three branches don't wish it to be that way? And it's not just the first and second amendments, the fourth gets trampled on quite a bit recently, and the "elasticity clause" practically made the tenth amendment a stillbirth

Right. And the Framers only said the exact opposite in the text of the Amendment... why? Because they were just tricksy like that?

The 2nd says nothing about "government". It says the "state". The two are not synonomous.

Alexander Hamilton, Federalist #28:

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

To those saying that the bill of rights are not absolute, I must say that in theory they should be absolute. The constitution is the supreme law of the land, and an amendment to the constitution is therefore supreme law. The only thing that should be able to encroach on it is another amendment.Sure. This is the approach the courts have usually taken. If the Constitution says "Congress shall make no law... abridging the freedom of speech," then the Court will admit no law that abridges the freedom of speech.

The problem is not whether to interpret the rules as absolute or not; the problem is interpreting what they actually mean--that is, figuring out just which absolute prohibition we are dealing with.

In the case of speech, the courts have to figure out what "freedom of speech" the Amendment is talking about. What did the Framers mean by that phrase? Surely, the Court might reason, they did not mean that anyone may come barging into a session of Congress to talk about toilet-training their toddler. Surely it does not mean a "freedom of speech" that includes the right to shout "fire" in a crowded building, or speech that is uttered with no other intention than the purposeful and unjust damage that it will cause to another individual.

The courts rely on whatever evidence they can to figure out what the people who wrote those words actually meant by them. And once they feel they have figured that out, they apply the absolute rule.

There is no "literal" interpretation of the Constitution. Or, what amounts to the same thing, all interpretations of the Constitution are literal--certainly they are not metaphorical, poetic, or ironic. The problem is not literalism opposed to something else, but rather fundamental disagreements about what the literal meaning of the words really is.

For example, we argue about whether we should use the literal meaning as read by the average person today, or the literal meaning as read by the average person in 1789. I prefer the latter.

The 2nd says nothing about "government". It says the "state". The two are not synonomous.You are absolutely correct. That is why most of us read the Second Amendment as protecting States' rights against the federal government, not as protecting an individual right to rebel.

Next you quote Alexander Hamilton, as if the theories of political philosophy are coequal with the practice of positive law. Read carefully what he writes:

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government,Hamilton recognizes that the theoretical right to self-defense against government (with which no one would disagree) is paramount to the positive forms of government. It cannot be included in them, because that would be nonsense: no government writes the script for its own demise.

Insurrection is our last recourse when the Constitution fails. It is not a right included in the document itself.

and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State.Why is insurrection more likely to succeed against the national rulers than against an individual State? Because the individual States can be expected to lead the rebellion against the federal government, with their own state-supported militias.

Again, with respect to the Second Amendment this means that it is, at best, an attempt by State governments to ensure their own defense against the new federal government. It does not state a government-recognized right of individuals to rebel against their government.

In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
This describes the situation of rebellion against an individual State. It asserts no government-recognized right, because such would be meaningless: the tyrants are already in charge. It merely states the fact that people in such a situation must do whatever they can, whatever they must... this is the collapse of laws: they have no place here.


Finally, if the purpose of the Second Amendment were to preserve a fundamental right of rebellion against any unjust government, then why was it not written to apply against the States? Surely we have just as much a right to rebel against them as against the federal government?

The answer seems obvious: it was an issue of federalism, not of individual rights nor of a collective right to rebellion.

You cite the words "right to contract" as used in the Lochner decision. However, these are obiter dicta: the decision in Lochner does not rest on the inviolable nature of a supposed right to contract, but on the preferential treatment that the Court believes the legislation in question approves.

The Due Process clause of the Fourteenth Amendment is taken to include in its protections all amorphous "liberties" that a person has... If the government will impose on anyone's liberty to do anything, it must have a reason--it must not be arbitrary.

This does not give a special value to the "right to contract"... It just states that it is the same as any other right a free person has, and if the State would violate that right it must have a good reason. Justice Peckham goes on to say as much immediately following the first line you cite:



In fact, in the great majority of economic regulation and contract cases in this era, the Court upheld the legislation. It is a relatively narrow band of cases in which the Court thought the government went too far.

Gillman's book sets out to solve this puzzle: the evidence is against the "contract rights" theory. If the Court's reasoning in this era were to defend a broad notion of contract rights, then they would have attacked a much wider range of legislation that affected contracts. Instead, they struck legislation according to a much narrower rule.

Gillman finds that this rule derives from the earliest police powers jurisprudence (which actually precedes the Fourteenth Amendment), and from the legislative history of the Fourteenth Amendment itself. When the Court finds that the State exercises police powers to promote the general welfare, with incidental effects on the due process liberties of those involved, then it upholds the legislation. When, however, the Court finds that the legislation protects only a particular group, or gives some advantage to a particular group--whether it is businessmen who would gain a monopoly, or bakers who would get shorter hours--the Court rules against the government.

In other words, the rule had nothing to do with the "extent" to which a "right to contract" was violated, since in most cases far greater violations were allowed. Rather, the question the Court asked was, "does the legislation have a general effect, or a particular effect?" The rule, based in the earliest concepts of government in our country, was that allowable legislation is that which applies to everyone the same, which does not pick out particular groups for favoritism.

Wait. I thought most, if not all, minimum wage laws were struck down as unconstitutional pre the switch-in-time, and the courts saw fit to prosecute trade unions under anti-monopoly laws while using a narrow (nonsensical) reading of the commerce clause to protect true monopolies. That seems to run contrary to the idea put forth above.

You are absolutely correct. That is why most of us read the Second Amendment as protecting States' rights against the federal government, not as protecting an individual right to rebel.

A State does not have "rights".

Next you quote Alexander Hamilton, as if the theories of political philosophy are coequal with the practice of positive law. Read carefully what he writes:

Hamilton recognizes that the theoretical right to self-defense against government (with which no one would disagree) is paramount to the positive forms of government. It cannot be included in them, because that would be nonsense: no government writes the script for its own demise.

Insurrection is our last recourse when the Constitution fails. It is not a right included in the document itself.

No, it is included in a positive form of government. It wouldn't be its own demise unless it becomes a negative government at which point it would no longer be following its own principles.

Insurrection is not for when the Constitution fails. It's for when the Government fails the people.

Why is insurrection more likely to succeed against the national rulers than against an individual State? Because the individual States can be expected to lead the rebellion against the federal government, with their own state-supported militias.

Again, with respect to the Second Amendment this means that it is, at best, an attempt by State governments to ensure their own defense against the new federal government. It does not state a government-recognized right of individuals to rebel against their government.

Once again, from Hamilton:

[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!


This describes the situation of rebellion against an individual State. It asserts no government-recognized right, because such would be meaningless: the tyrants are already in charge. It merely states the fact that people in such a situation must do whatever they can, whatever they must... this is the collapse of laws: they have no place here.

Correct. Whatever they must. And to make sure they can: an armed populace.


Finally, if the purpose of the Second Amendment were to preserve a fundamental right of rebellion against any unjust government, then why was it not written to apply against the States? Surely we have just as much a right to rebel against them as against the federal government?

Did I say any? No. The Constitution of the United States covers the Federal Gov't. The majority of the States however, include in their own constitutions the RKBA as well as self-defense.

Edit: Presser V Illinois:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

The answer seems obvious: it was an issue of federalism, not of individual rights nor of a collective right to rebellion.

The BOR is a federal document recognizing the rights of the people and limiting the power of Gov't.

For what it is worth: I think an examination into the federalist/antifederalist debates miss half of the argument - a sizable portion of the nation was antifederalist at the time, and to a large extent the bill of rights was a measure to placate this group of people. One of the major issues that the antifederalists had was the idea of a standing army - they hated it. Viewed in this light, the second amendment is most likely a guarantee to the states that the federal government will not strip a state of its own militia.

For what it is worth: I think an examination into the federalist/antifederalist debates miss half of the argument - a sizable portion of the nation was antifederalist at the time, and to a large extent the bill of rights was a measure to placate this group of people. One of the major issues that the antifederalists had was the idea of a standing army - they hated it. Viewed in this light, the second amendment is most likely a guarantee to the states that the federal government will not strip a state of its own militia.

I disagree. The Consititution clearly states the the federal Gov't has authority over the militia. A "state militia" would still be classified by the AF's as a "select militia".


Richard Henry Lee:
A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary . . . [T]he constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include . . . all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided.

George Mason:

"who are the militia? They consist now of the whole people, except a few public officers."

Oliver Ellsworth, Constitutional convention:

"a select militia . . . would be followed by a ruinous declension of the great body of the militia."

Elbridge Gerry, house committee on amendments:
This declaration of rights, I take it, is intended to secure the people against the maladministration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed.

Tench Coxe , Remarks on the First Part of the Amendments to the Federal Constitution:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

Wait. I thought most, if not all, minimum wage laws were struck down as unconstitutional pre the switch-in-time, and the courts saw fit to prosecute trade unions under anti-monopoly laws while using a narrow (nonsensical) reading of the commerce clause to protect true monopolies. That seems to run contrary to the idea put forth above.Oh, by no means am I trying to act as an apologist for the pre-switch courts. Their anti-labor judgments had outrageous consequences, and it is undoubtedly a good thing for our country that they ultimately came around.

I am merely arguing that it is too simplistic to read their stance as simple-mindedly pro-business. Overall, they upheld many more regulatory policies than they struck down. (They were, obviously, a much less activist court than the Rehnquist Court.)

While their stance clearly conflicted with the immediate (and long-term) needs of the country, it was a good-faith reading of the due process clause and the principle of government neutrality. As for their rulings on monopolies, they did uphold monopolies where they were convinced that the law creating them (or making them inevitable) was passed with the intention and primary effect of promoting the public good. (For instance, they upheld some monopolies in the meat industry that were designed to ensure quality, inspected meat on the market.)

The principle of the matter was that the business of government was to pass laws that benefit everyone, not merely some private parties. If some private parties happened to gain because of general legislation, that was acceptable. What was unacceptable was legislation designed to help (or hinder) any particular group. It is unfortunate that by the turn of the century what had been a noble principle of the Founding no longer made sense, because basic facts of the economy had changed.

There is no way I can complete the argument within the restrictions of the Nationstates format. I encourage you to read Gillman's book.

A State does not have "rights".The ones that debated and ratified the Constitution certainly thought that they did. And that is all we need to understand the meaning of the Amendment.

No, it is included in a positive form of government. It wouldn't be its own demise unless it becomes a negative government at which point it would no longer be following its own principles.What the hell is a "negative government"?

Insurrection is not for when the Constitution fails. It's for when the Government fails the people.Now you're talking nonsense.

In the first place, the Constitution is written with a variety of checks and balances that are intended to ensure that the Government serves the people. If it fails to do so, clearly the Constitution has also failed.

Second, the Government fails the people all the time. Government is inefficient, often ineffective, and rarely capable of addressing the most pressing needs of the citizens.

The Framers knew this. Every politician, and certainly every political philosopher knows this. Armed revolt was justified, in the minds of the American Revolutionaries and the authors of the Constitution, not when government merely "fails"... but when government becomes openly abusive.

Once again, from Hamilton:

[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!

Can we say "non sequitur"? Nowhere, in this quotation or in any other, does Hamilton advocate a state-recognized right to rebellion. Here all he says is that the federal government and the State governments will check each other against abuse.

Seriously, Hamilton is probably the last place you want to turn for a defense of the right to rebel. He was a power-hungry wanna-be tyrant. If you're going to look for help, look to Jefferson... and even he ultimately advocated an "institutionalized" revolution every eighteen years in the form of a recurring Constitutional Convention. When it came to actual rebels, he was the most forgiving of the Founders, arguing only that they should be "mildly punished"... not that they should not be punished at all, since they were exercising a fundamental right.

Correct. Whatever they must. And to make sure they can: an armed populace.No.

It's a nice theory. Really. But for this to be the case, the Second Amendment would have to apply to the States, which it never has. If the Framers were so worried about the right to rebel, why would they allow States to restrict the liberty to keep and bear arms?

The Second Amendment reflects a desire by the States to retain sovereign authority in the form of State militias... which, at the time, were supplied by private citizens and their private arms. Nothing more.

Edit: Presser V Illinois:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

Why the hell would you cite this case?

Not only does it specifically indicate that the purpose of a "right to bear arms" is that the people should be prepared to "perform their duty to the general government," but in this case the court upheld an Illinois law prohibiting private militias from taking to the streets.

At best, the decision in this case reads as follows, "While the Second Amendment only applies to the federal government, the States cannot go so far in their gun regulations as to actually damage national security interests."

For what it is worth: I think an examination into the federalist/antifederalist debates miss half of the argument - a sizable portion of the nation was antifederalist at the time, and to a large extent the bill of rights was a measure to placate this group of people. One of the major issues that the antifederalists had was the idea of a standing army - they hated it. Viewed in this light, the second amendment is most likely a guarantee to the states that the federal government will not strip a state of its own militia.Precisely.

I disagree. The Consititution clearly states the the federal Gov't has authority over the militia. A "state militia" would still be classified by the AF's as a "select militia".No, not even in the meaning of the Richard Henry Lee quotation you cite next:

Richard Henry Lee:
A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary . . . [T]he constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include . . . all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided.

Who was doing the "organizing and disciplining" in Lee's day? The States... None of which particularly wanted a standing army (a "select militia"), but which meant to keep themselves armed and defended in the form of a general militia of able-bodied men. It was precisely this demand to which the Second Amendment responds.

I'd like to put out a thought that's been bouncing around in my head about the second amendment for a while.

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.

Let's assume for a minute that the well regulated militia refers to the standing army of the goverment, an entity that is assumed to have the right to keep and bear arms. Let us next suppose that the amendment is a recognition of the necessity of the right of the average citizen, not part of this militia, to keep and bear arms in order to serve as protection from this militia run amok.

Personally I do not see this as too far a stretch, especially considering that the Constitution was written so soon after Shays' rebellion, an incident in which the government-operated militia used excessive force to enforce unfair laws and overly-burdensome taxes.

The second amendment is wrong. Giving people guns just allows them to shoot eachother more often. Canadians can't own guns, and their murder rate is much lower.

We should abolish the 2nd amendment.

I'd like to put out a thought that's been bouncing around in my head about the second amendment for a while.



Let's assume for a minute that the well regulated militia refers to the standing army of the goverment, an entity that is assumed to have the right to keep and bear arms. Let us next suppose that the amendment is a recognition of the necessity of the right of the average citizen, not part of this militia, to keep and bear arms in order to serve as protection from this militia run amok.

Personally I do not see this as too far a stretch, especially considering that the Constitution was written so soon after Shays' rebellion, an incident in which the government-operated militia used excessive force to enforce unfair laws and overly-burdensome taxes.
Which is why the whiskey rebellion was such a non-excessive use of force.

In a reading of the full text of the Constitution it's clear that the writers were not indifferent to rebellion, but nor should we assume that they believed in the infallibility of government. Frankly the need for the U.S. to have a standing army, at least in those times, cannot be denied. In response to the need for this army and the possible problems that could arise from the government having a monopoly on violence, a provision like the second amendment seems to make much sense. The writers of the Constitution did nothing if they did not recognize many of the mistakes made during the time of the Confederacy.

The ones that debated and ratified the Constitution certainly thought that they did. And that is all we need to understand the meaning of the Amendment.

Care to source that? Show me where the FF's thought that the state had "rights".

What the hell is a "negative government"?

The opposite of a "positive government".

Now you're talking nonsense.

In the first place, the Constitution is written with a variety of checks and balances that are intended to ensure that the Government serves the people. If it fails to do so, clearly the Constitution has also failed.

Second, the Government fails the people all the time. Government is inefficient, often ineffective, and rarely capable of addressing the most pressing needs of the citizens.

The Framers knew this. Every politician, and certainly every political philosopher knows this. Armed revolt was justified, in the minds of the American Revolutionaries and the authors of the Constitution, not when government merely "fails"... but when government becomes openly abusive.

I've shown quotes showing what the FF's thought of insurrection. Nothing about the failing of the Constitution but the failings of the Gov't. You then go on to say that the government becomes abusive isn't failing in its duties. Now who's talking nonsense?




Can we say "non sequitur"? Nowhere, in this quotation or in any other, does Hamilton advocate a state-recognized right to rebellion. Here all he says is that the federal government and the State governments will check each other against abuse.

Seriously, Hamilton is probably the last place you want to turn for a defense of the right to rebel. He was a power-hungry wanna-be tyrant. If you're going to look for help, look to Jefferson... and even he ultimately advocated an "institutionalized" revolution every eighteen years in the form of a recurring Constitutional Convention. When it came to actual rebels, he was the most forgiving of the Founders, arguing only that they should be "mildly punished"... not that they should not be punished at all, since they were exercising a fundamental right.

Try again. Hamilton stated that the people, the citizenry, can use the state and federal Gov'ts as checks for eachother. Being that I didn't state that quote showed Hamilton recognized a state recognized right to rebellion, your arguement is a strawman.

No.

It's a nice theory. Really. But for this to be the case, the Second Amendment would have to apply to the States, which it never has. If the Framers were so worried about the right to rebel, why would they allow States to restrict the liberty to keep and bear arms?

The Second Amendment reflects a desire by the States to retain sovereign authority in the form of State militias... which, at the time, were supplied by private citizens and their private arms. Nothing more.

Now if you would actually read the quotes that I listed from the anti-federalists, you would that this entire bit is false.



Why the hell would you cite this case?

Not only does it specifically indicate that the purpose of a "right to bear arms" is that the people should be prepared to "perform their duty to the general government," but in this case the court upheld an Illinois law prohibiting private militias from taking to the streets.

At best, the decision in this case reads as follows, "While the Second Amendment only applies to the federal government, the States cannot go so far in their gun regulations as to actually damage national security interests."

And if you would actually read the case, the court stated that not allowing a march in town didn't restrict the RKBA. You might also want to read the quote. The states can't restrict the RKBA because it is a federal duty for all able bodies to do so and they are the militia. I guess it's easier to ignore that part, huh?

No, not even in the meaning of the Richard Henry Lee quotation you cite next:



Who was doing the "organizing and disciplining" in Lee's day? The States... None of which particularly wanted a standing army (a "select militia"), but which meant to keep themselves armed and defended in the form of a general militia of able-bodied men. It was precisely this demand to which the Second Amendment responds.

No, it was less the states than local gov'ts. You might also read that a "select militia" was only part of what they considered to be a "standing army". You might recognize this if you read the rest of the quotes.

I've provided primary sources for my arguement. Can you?

The second amendment is wrong. Giving people guns just allows them to shoot eachother more often. Canadians can't own guns, and their murder rate is much lower.

We should abolish the 2nd amendment.

Canada has a higher per capita firearm ownership rate than the US.

Your right to bear any weapon during a time of crisis IF you are part of a "well-organized militia" is protected. Your right to own a gun, a nuke, or a mech to keep your neighbours or the feds off your property is a bad interpretation.

The second amendment isn't what "you" [people in general] think because it's deliberately misinterpreted so often by the higher-ups. Look it up and read the whole amendment. You have no real right to 'bear arms' in the latter situation.
A mech...hmm... I liky...

The second amendment is wrong. Giving people guns just allows them to shoot eachother more often. Canadians can't own guns, and their murder rate is much lower.

We should abolish the 2nd amendment.
OK. Abolish the 2nd amenment and the goverment owns YOU! If you abolish it then you just put cuffs on you and give them the key. The right to bear arms is "To resist all invaders; both forein and of home." That means that you have the right to rise against the president if he trys to lets say...aboolish the multi-party system kill all senators and seize complete control of the goverment. So before you go around saying that guns are bad think about that.

Care to source that? Show me where the FF's thought that the state had "rights".

The 10th Amendment

Care to source that? Show me where the FF's thought that the state had "rights".How about the entire text of the Constitution, which attempts to straddle a balance between the large states and the small states, as well as between the slave-holding and non-slave-holding states?

If the common judgment of the day were not that States have rights exclusive of the federal government, it would have been a much less interesting period in American history.

The opposite of a "positive government".Clearly you have no idea what these words actually mean.

"Positive government" refers to governments of laws created by human beings... that is, "posited." Is there an "opposite" of this? Perhaps the City of God?

Until you can either learn to use the terms of political theory properly, or at the very least explain what alternative usage you have mysteriously adopted, I see no way to continue this discussion.

No, it was less the states than local gov'ts.If the local governments were responsible for organizing and disciplining the militia, then why (in the quotation you posted) does Alexander Hamilton fear that the localities cannot defend themselves against the State, while the State (which is armed) can defend itself against the federal government?

You accuse me of failing to read what you post... but from my end I seem to be the only one reading your citations.

The 10th Amendment


Amendment X

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

How about the entire text of the Constitution, which attempts to straddle a balance between the large states and the small states, as well as between the slave-holding and non-slave-holding states?

If the common judgment of the day were not that States have rights exclusive of the federal government, it would have been a much less interesting period in American history.

Clearly you have no idea what these words actually mean.

"Positive government" refers to governments of laws created by human beings... that is, "posited." Is there an "opposite" of this? Perhaps the City of God?

Until you can either learn to use the terms of political theory properly, or at the very least explain what alternative usage you have mysteriously adopted, I see no way to continue this discussion.


Translation:AnarchyeL is unable to provide any actual sources to back up his arguement so is using one error in one part of the arguement to back out.

Amendment X

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

Yes, it declares the rights of states to be free of federal government intervention not expressly granted by the constitution.

It is no different from the rest of the Bill of Rights, in that it establishes rights by deliniating the limits of government. It is quite plain that this Amendment speaks of the relationship between the federal and state governments, thereby establishing rights for the states.

Clearly you have no idea what these words actually mean.

"Positive government" refers to governments of laws created by human beings... that is, "posited." Is there an "opposite" of this? Perhaps the City of God?

Until you can either learn to use the terms of political theory properly, or at the very least explain what alternative usage you have mysteriously adopted, I see no way to continue this discussion.

He obviously means negative government opposes positive government in the way that negative rights opposes positive rights. In other words, positive government is one that is proactive and enforces obligations to provide for society, while negative government is one that is hands-off and enforces obligation to refrain from interference.

As someone who frequently hijacks phrases for my own purposes, his choice of words looks like something I would post.

If the local governments were responsible for organizing and disciplining the militia, then why (in the quotation you posted) does Alexander Hamilton fear that the localities cannot defend themselves against the State, while the State (which is armed) can defend itself against the federal government?

You accuse me of failing to read what you post... but from my end I seem to be the only one reading your citations.

No, you keep selecting certain parts. It's showing that against a state, it is less organized when broken down at that level. When combined, they are stronger.

Find me a quote from the FF's showing it's only supposed to be state militias.

Yes, it declares the rights of states to be free of federal government intervention not expressly granted by the constitution.

It is no different from the rest of the Bill of Rights, in that it establishes rights by deliniating the limits of government. It is quite plain that this Amendment speaks of the relationship between the federal and state governments, thereby establishing rights for the states.

I'm still going to disagree w/ you. As has been argued here many times, wording is important. If you look not only at the tenth, but also at all the arguements during the conventions, the distinction between power and right is very clear. The state has powers, the people have rights.

He obviously means negative government opposes positive government in the way that negative rights opposes positive rights. In other words, positive government is one that is proactive and enforces obligations to provide for society, while negative government is one that is hands-off and enforces obligation to refrain from interference.

As someone who frequently hijacks phrases for my own purposes, his choice of words looks like something I would post.

That's generally what I was getting at in a slightly snide way, yes. Thank you.

Amendment X

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

You know, this argument is as bad as the one those anti-tax nuts pull out, complaining that nowhere does U.S. law say an individual is "liable" for federal income taxes... therefore, no one is liable for federal income taxes.

Despite the fact that every court that has ever considered the matter has concluded that anyone reading the law can clearly identify its intent, people still cling to this "magic word" theory, because it allows them to continue to believe what they want, without regard for real evidence.

Now you claim that because the Tenth Amendment uses one word (power) to indicate that there are certain things the States may do without interference from the federal Government, rather than another word (rights) to say the exact same thing, somehow it is not true that there are certain things the States may do without interference from the federal government.

Nice try, but you'll only fool the third-graders. After that, you have to deal with kids who know the meaning of "synonymy."

AnarchyeL is unable to provide any actual sources to back up his arguement so is using one error in one part of the arguement to back out.

My source is the Constitution. I think we can all read it for ourselves.
Besides which, I am having too much fun showing that your sources say the exact opposite of what you think they do, to go to all the trouble of digging up new ones.

As for "one error," it was pretty significant: considering that you were trying to argue that Hamilton had some concept of "negative government" against which the right to rebellion applies, but not to "positive government" which he explicitly stated (again, in your citation) excludes the right to rebellion.

If you can't get past this central problem, there is little point dealing with the rest.

He obviously means negative government opposes positive government in the way that negative rights opposes positive rights. In other words, positive government is one that is proactive and enforces obligations to provide for society, while negative government is one that is hands-off and enforces obligation to refrain from interference.I only wish that were true, so we could make sense of this. Unfortunately, if you read the post from which this mystery stems, he was actually claiming that Hamilton felt a "right to rebel" makes sense against "negative government" but not against "positive government." I fail to see how your intended explication makes any sense of that... but thanks for trying. :)

As someone who frequently hijacks phrases for my own purposes, his choice of words looks like something I would post.
Perhaps. But at least I can generally figure out what you mean.

I'm still going to disagree w/ you. As has been argued here many times, wording is important. If you look not only at the tenth, but also at all the arguements during the conventions, the distinction between power and right is very clear. The state has powers, the people have rights.

Rights can be viewed as claims to limitations of government powers, powers can be looked at as being claims to circumvent rights, depending on your view of rights.

However, what is definite is that those concepts of powers and rights are assigned to roles within a relationship. As such there is nothing barring a state from fulfilling the role of rightholder. In this particular amendment, the state is viewed in the role as the governed, while the federal government is the role as the governor. So, according to their role, the states have a claim to rights that counter the powers of the federal government.

No, you keep selecting certain parts. It's showing that against a state, it is less organized when broken down at that level. When combined, they are stronger.Go back and read your Hamilton quotation again.

If the problem were merely one of "less organization," then it would be a matter of degree: the States would be ill-prepared to fight the larger and more broadly organized federal government; the localities would likewise be ill-prepared to fight the larger and more broadly organized State governments.

But that's not what Hamilton says. He says that the States could resist the federal government, but that the localities could not. He is talking about a difference in kind, not a difference in degree.

Find me a quote from the FF's showing it's only supposed to be state militias.
But you've already found so many for me!! If I can't convince you that these ones actually mean what they say, what good will it do for me to dig up others that would only say the same things?

My source is the Constitution. I think we can all read it for ourselves.
Besides which, I am having too much fun showing that your sources say the exact opposite of what you think they do, to go to all the trouble of digging up new ones.

As for "one error," it was pretty significant: considering that you were trying to argue that Hamilton had some concept of "negative government" against which the right to rebellion applies, but not to "positive government" which he explicitly stated (again, in your citation) excludes the right to rebellion.

If you can't get past this central problem, there is little point dealing with the rest.

And I've used the constitution as well as the FF's on both the Federalist and Anti-federalist side. You really haven't shown anything about the quotes except that you're good at taking things out of context and selectively reading..

"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . "
--- The U.S. Supreme Court in Cohens v. Virginia (1821 )

Oh, look, another commentator:

Michigan Supreme Court Justice Thomas Cooley, Principles of Constitutional Law, 1898:

"The Constitution. -- By the Second Amendment to the Constitution it is declared 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."

"The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation."

"The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision, undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose, but this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order."

Go back and read your Hamilton quotation again.

If the problem were merely one of "less organization," then it would be a matter of degree: the States would be ill-prepared to fight the larger and more broadly organized federal government; the localities would likewise be ill-prepared to fight the larger and more broadly organized State governments.

But that's not what Hamilton says. He says that the States could resist the federal government, but that the localities could not. He is talking about a difference in kind, not a difference in degree.


But you've already found so many for me!! If I can't convince you that these ones actually mean what they say, what good will it do for me to dig up others that would only say the same things?

Meaning you can't. Find me a single quote that shows the states have exclusive "rights" to the militia. I've shown more than enough that the militia is the "people".

I only wish that were true, so we could make sense of this. Unfortunately, if you read the post from which this mystery stems, he was actually claiming that Hamilton felt a "right to rebel" makes sense against "negative government" but not against "positive government." I fail to see how your intended explication makes any sense of that... but thanks for trying. :)

Well, then I guess he is using 'negative' in the common use of 'bad'.

Oh, look, another commentator:

Michigan Supreme Court Justice Thomas Cooley, Principles of Constitutional Law, 1898:

*snip*

I'm sure there are hoards of gun-loving "experts" that you can call up for your argument. But since the argument of this Michigan judge does NOT reflect the considered opinion of his field, and it directly contradicts the case law of the United States Supreme Court, reference to him constitutes a fallacious appeal to authority: appeals to authority are only valid when the authority cited represents his field of expertise.

Try again.

You know, this argument is as bad as the one those anti-tax nuts pull out, complaining that nowhere does U.S. law say an individual is "liable" for federal income taxes... therefore, no one is liable for federal income taxes.

Despite the fact that every court that has ever considered the matter has concluded that anyone reading the law can clearly identify its intent, people still cling to this "magic word" theory, because it allows them to continue to believe what they want, without regard for real evidence.

Now you claim that because the Tenth Amendment uses one word (power) to indicate that there are certain things the States may do without interference from the federal Government, rather than another word (rights) to say the exact same thing, somehow it is not true that there are certain things the States may do without interference from the federal government.

Nice try, but you'll only fool the third-graders. After that, you have to deal with kids who know the meaning of "synonymy."


So among this collection of personal attacks and red herrings, you are now trying to claim that specific wording isn't important to the BOR's?

Prove this.

I've shown more than enough that the militia is the "people".

You seem to be confused about something. Let me see if I can straighten you out.

We do not disagree about this. You claim to be "arguing" that the militia, for the purposes of the Second Amendment, is coequal with the people. I agree with you. Completely. And I have never disagreed.

Here is where we differ: While we both recognize that the "militia" is the same as the "people," I take note of the fact that the Second Amendment tells us what its purpose is: namely, the maintenance of the militia. Thus, while the Amendment protects the "right to keep and bear arms" of everyone, not merely those currently enrolled in the State militia, this right only extends so far as can be reasonably related to service (actual or potential) in the State militia.

Thus, no nuclear weapons, no tanks, no missiles for private individuals. The State does not need you to have these for its defense, since they keep their own... and there is, moreover, a compelling state interest to prevent you from getting them.

More to the point, the Second Amendment applies only against the federal government. Nothing in the Constitution limits the State's authority to restrict the possession of firearms. In terms of case law, this position has generally been upheld, with one example of non-binding dicta that suggests that the States are nevertheless limited from creating restrictions that actually inhibit the national defense.

In no case does any of this relate to a presumed "right of rebellion."

What would such a "right" look like, anyway? When the government busts up my secret militia and charges us with conspiracy and so on, what would happen if I had this right? Would I say, "No, this is all a big misunderstanding... See, we're not going to kill just anyone... We're actually plotting the overthrow of the corrupt government that you represent." What do you expect to happen? Will the government say, "Oh, okay... You do have a right to rebel. Sorry about that!"

There is no right to rebellion that can be included in the laws of positive government. It would be incoherent.

So among this collection of personal attacks and red herrings, you are now trying to claim that specific wording isn't important to the BOR's?

Prove this.
I am sooooo NOT going to miss these "gun nut" kinda commentaries. :p

I'm sure there are hoards of gun-loving "experts" that you can call up for your argument. But since the argument of this Michigan judge does NOT reflect the considered opinion of his field, and it directly contradicts the case law of the United States Supreme Court, reference to him constitutes a fallacious appeal to authority: appeals to authority are only valid when the authority cited represents his field of expertise.

Try again.

You've yet to "call up" anybody. I've "called up" the FF's. Your little Ad-hominems are all you have left. Reference to a pre-20th century state supreme court justice is only an "appeal to authority" if you ignore all the primary sources and the intent of the founding fathers as well as the case law up to that time.

I am sooooo NOT going to miss these "gun nut" kinda commentaries. :p

And a traditional personal attack by CH w/ no substance whatsoever.

And a traditional personal attack by CH w/ no substance whatsoever.
Awww come on......you taught me everything you know about personal attacks when it comes to these explosive gun threads. :p

I just can’t understand how anyone could possibly think open availably of any and all weapons would be a good thing. I can just see what would happen: corporations start buying missiles, and before long we’re seeing the last few chapters of Jennifer Government acted out in real life.

Plus, you care to picture what 9/11 would have been like if you could go get nukes at Wal-Mart?

You seem to be confused about something. Let me see if I can straighten you out.


There is no right to rebellion that can be included in the laws of positive government. It would be incoherent.

Ok, I can see where you're coming from.

It may not be directly included in the "laws" but in the intent of design of said government.

The 2nd doesn't directly say that we have firearms to overthrow the Gov't. By reading the commentaries of the FF's however, it is clear that the private ownership of firearms is not only to be used in the support of a lawful Government but to oppose that Gov't when it becomes tyrannical. It is recognized by the FF's that to defeat an insurrection is completely correct but that the citizens not only have the right but the duty to overthrow the Government when it abuses the natural rights of the people.

Edit: I also recognize "reasonable" restrictions to rights. I agree w/ the current definition of 'arms". I don't like the restrictions of fully-auto weapons but will accept them as a red line.


Now off to AT. See everyone in a few weeks.

So among this collection of personal attacks and red herrings, you are now trying to claim that specific wording isn't important to the BOR's?

Prove this.

Particular wording may always be important... but it also may not. A simple test is to switch the words and see what difference comes of it.

Let's see... "A well regulated militia, being necessary to the security of a free state, the power of the people to keep and bear arms, shall not be infringed."

In what way is this more restrictive or less restrictive than using the word "right"? What difference does it make to the meaning of this sentence?

Now, let's try Number Ten: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Okay, now here's something interesting... It is in the nature of the conjunction "or" that, when used correctly, either side may be omitted and the sentence will have the same sense. Thus, this clause could have been broken in two without changing the meaning:

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

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

Now, how can that be, if according to you, "The state has powers, the people have rights"? Clearly, according to the Tenth Amendment, the people have powers.

According to your argument, the Framers of our Constitution were clearly buffoons who could not even use the right word in the right place.

Particular wording may always be important... but it also may not. A simple test is to switch the words and see what difference comes of it.

Let's see... "A well regulated militia, being necessary to the security of a free state, the power of the people to keep and bear arms, shall not be infringed."

In what way is this more restrictive or less restrictive than using the word "right"? What difference does it make to the meaning of this sentence?

Now, let's try Number Ten: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Okay, now here's something interesting... It is in the nature of the conjunction "or" that, when used correctly, either side may be omitted and the sentence will have the same sense. Thus, this clause could have been broken in two without changing the meaning:

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

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

Now, how can that be, if according to you, "The state has powers, the people have rights"? Clearly, according to the Tenth Amendment, the people have powers.

According to your argument, the Framers of our Constitution were clearly buffoons who could not even use the right word in the right place.


No I never said they were buffoons. "Rights" are recognized as inherent while "powers" are granted/given. This is stated in US v Cruishank. By changing rights to powers in the 2nd, it changes the intent from that of a inherent (or natural) right to one granted by the Gov't. Since the state is created by the people, it cannot have inherent "rights" only powers granted to it by the people.

You've yet to "call up" anybody.Why would I, when I am perfectly content with the quotations from the Framers that you have provided? I have never claimed that these were poor citations, merely that you interpret them incorrectly. Indeed, I think that I could hardly find better quotations to prove my point... so why would I go looking for any?

By reading the commentaries of the FF's however, it is clear that the private ownership of firearms is not only to be used in the support of a lawful Government but to oppose that Gov't when it becomes tyrannical.Yes. The federal government, but never the States. If they were so afraid of the States, they would have included them in the prohibition of the Second Amendment.

Thus, it was an issue of federalism: keep the States armed, to keep the feds honest.

No I never said they were buffoons. "Rights" are recognized as inherent while "powers" are granted/given. This is stated in US v Cruishank. By changing rights to powers in the 2nd, it changes the intent from that of a inherent (or natural) right to one granted by the Gov't. Since the state is created by the people, it cannot have inherent "rights" only powers granted to it by the people.
Cruikshank says no such thing. In fact, it states, "No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States."

Clearly the implication is that rights can be granted or secured.

Moreover, why would you cite a case the major ruling of which was to affirm that the Second Amendment does not apply to the States? According to Cruikshank, it "has no other effect than to restrict the powers of the national government."

I thought that Cat Tribe already debunked the pro gun cause as it relates to the 2nd Amendment?

I thought that Cat Tribe already debunked the pro gun cause as it relates to the 2nd Amendment?Oh, surely.

I'm just dealing with the stragglers whose eyes glaze over when they so much as glance at Cat-Tribe's list of sources.

Two different tactics... tending to the same result, one hopes. ;)

You seem to be confused about something. Let me see if I can straighten you out.

We do not disagree about this. You claim to be "arguing" that the militia, for the purposes of the Second Amendment, is coequal with the people. I agree with you. Completely. And I have never disagreed.

Here is where we differ: While we both recognize that the "militia" is the same as the "people," I take note of the fact that the Second Amendment tells us what its purpose is: namely, the maintenance of the militia. Thus, while the Amendment protects the "right to keep and bear arms" of everyone, not merely those currently enrolled in the State militia, this right only extends so far as can be reasonably related to service (actual or potential) in the State militia.

Thus, no nuclear weapons, no tanks, no missiles for private individuals. The State does not need you to have these for its defense, since they keep their own... and there is, moreover, a compelling state interest to prevent you from getting them.

More to the point, the Second Amendment applies only against the federal government. Nothing in the Constitution limits the State's authority to restrict the possession of firearms. In terms of case law, this position has generally been upheld, with one example of non-binding dicta that suggests that the States are nevertheless limited from creating restrictions that actually inhibit the national defense.


Consider what that means though: If that really is the case, then States are free to overrule Federal firearms restrictions and arguably could allow their citizens to posses tanks, anti-aircraft missles &c. (Actually, I think you can own a tank already, though possibly not with a working gunnery system: and you can definitely own a fighter jet).

At any rate, certainly, they would be allowed to repeal the federal controls on automatic firearms within their own borders.

I thought that Cat Tribe already debunked the pro gun cause as it relates to the 2nd Amendment?

He's in favor of an individual right though.

Consider what that means though: If that really is the case, then States are free to overrule Federal firearms restrictions and arguably could allow their citizens to posses tanks, anti-aircraft missles &c.

At the very least, I think this does make for a more interesting (if less likely) constitutional question. Most likely the legality would come down to some version of strict scrutiny: is the federal government's restriction necessary to achieve a compelling government interest. If it is, then the Supremacy Clause takes care of the rest.

At any rate, certainly, they would be allowed to repeal the federal controls on automatic firearms within their own borders.Yes, this would certainly be a more marginal case with respect to doctrine... and therefore, more interesting. I could see the federal courts siding with the States on this one.

Oh, surely.

I'm just dealing with the stragglers whose eyes glaze over when they so much as glance at Cat-Tribe's list of sources.

Two different tactics... tending to the same result, one hopes. ;)
Press on....you fight a noble battle!! :)

At the very least, I think this does make for a more interesting (if less likely) constitutional question. Most likely the legality would come down to some version of strict scrutiny: is the federal government's restriction necessary to achieve a compelling government interest. If it is, then the Supremacy Clause takes care of the rest.


Possibly. But that test comes via the fourteenth ammendment and does so using the due process clause which applies only to individuals not states. Arguably this is a novel question, and should be decided on a completely different basis.

Nuclear warheads would still be a no-brainer I imagine, however, because I gather possesion of them is limited by treaty.

Possibly. But that test comes via the fourteenth ammendment and does so using the due process clause which applies only to individuals not states.Yes, the specific "strict scrutiny" test is Fourteenth Amendment analysis, but the reliance on "compelling government interest" has a way of cropping up all over the place. (Actually, the strict scrutiny test applies to equal protection analysis, not due process.) In general, "compelling interest" tests are used whenever the courts determine to make a presumption of unconstitutionality... while in cases where the courts make a presumption of constitutionality, they employ some version of a "rational basis" test.

Despite the Fourteenth Amendment, States are often held by the courts to a lower standard than the federal government with respect to fundamental rights, due to the manner in which they interpret the Enforcement clause of the Fourteenth Amendment combined with ambiguities in terms of interpretive supremacy.

Yes, the specific "strict scrutiny" test is Fourteenth Amendment analysis, but the reliance on "compelling government interest" has a way of cropping up all over the place. (Actually, the strict scrutiny test applies to equal protection analysis, not due process.) In general, "compelling interest" tests are used whenever the courts determine to make a presumption of unconstitutionality... while in cases where the courts make a presumption of constitutionality, they employ some version of a "rational basis" test.

Yah. My bad. Wrong clause. Either one centres around infringing individual liberties however; which is not the case assuming the second amendment protects a state's right to be free from federal regulation in this specific instance.

Despite the Fourteenth Amendment, States are often held by the courts to a lower standard than the federal government with respect to fundamental rights, due to the manner in which they interpret the Enforcement clause of the Fourteenth Amendment combined with ambiguities in terms of interpretive supremacy.

Which is true. But I would argue that if the second amendment is a right given purely to the states, the fourteenth amendment is wholly inapplicable. (Unless there is some way in which different gun control schemes amongst the various states effect the privileges or immunties &c).

As such, I imagine that any challenge would center on either the commerce clause (not convincing probably), or simply the supremecy clause. And given that the second amendment purportedly amends the constitution, any supremecy clause argument is not facially correct.

Most likely, it would once again come down to the various interpretations of the specific wording of the amendment itself.

AnarchyeL, you can go ahead and declare at least a partial victory. I've accepted that no matter how long I argue, you'll never accept the idea that a right can be absolute and inviolable.

No matter what I say, you'll always stand up for the government limiting and restricting rights to whatever arbitrary degree you consider reasonable.

I've accepted that no matter how long I argue, you'll never accept the idea that a right can be absolute and inviolable.

No matter what I say, you'll always stand up for the government limiting and restricting rights to whatever arbitrary degree you consider reasonable.

There you go with that false dilemma again. Either rights are "absolute" or they are non-existent.

A curious position, considering that there are quite a few rights effectively defended in real life... yet not one of them appears to be so absolute that it admits no exception (e.g. "free exercise" and the prohibition against human sacrifice).

I shudder to imagine what a world with "absolute" rights would look like. I think we can all be glad we don't live in one.

There you go with that false dilemma again. Either rights are "absolute" or they are non-existent.

Either you really don't understand what I mean (unlikely) or you're just pretending to be ignorant so that I'll give you a definition to pick apart and ignore the arguement itself (that seems likely). Either way, I'm not taking the bait.

A curious position, considering that there are quite a few rights effectively defended in real life... yet not one of them appears to be so absolute that it admits no exception (e.g. "free exercise" and the prohibition against human sacrifice).

Again, you've missed the point entirely and I'm not going to correct you this time.

I shudder to imagine what a world with "absolute" rights would look like. I think we can all be glad we don't live in one.
Then you're right where you want to be. Rights are universally restricted and if that suits you, congradulations.

Maybe if you can properly determine the meaning of that last sentence you'll have proven it's worth my time trying to argue with you. Until then, I'm done with this tread.

Five Castes:

It seems to me that our disagreement boils down to this: You think that states are either free, or not free; there is no middle term. I think that state A can be more free than state B, which is more free than state C; indeed, that there can be some continuum of liberty between A and C.

In other words, the United States can "have more freedom of speech" than Germany, which "has more freedom of speech" than Iran. If statements of this type are meaningful, then it cannot be the case that a state is either free or not free with no distinctions in between.

Since I think most people would agree that there are degrees to the freedom of speech (for example), it would seem that rights do not have to be absolute.

Cruikshank says no such thing. In fact, it states, "No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States."

Clearly the implication is that rights can be granted or secured.

Moreover, why would you cite a case the major ruling of which was to affirm that the Second Amendment does not apply to the States? According to Cruikshank, it "has no other effect than to restrict the powers of the national government."

And from the lead opinion:

The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose.

The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference.

This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.

Showing that the right is inherant. Being that I didn't post this link to show that the 2nd applied to the states but to show the difference between a "right" and a "power" , the second part of your arguement has no bearing.

Yes. The federal government, but never the States. If they were so afraid of the States, they would have included them in the prohibition of the Second Amendment.

Thus, it was an issue of federalism: keep the States armed, to keep the feds honest.

Being that the US constitution was about the federal gov't when it was written, no they wouldn't have. The states have their own constitutions. Keep the people armed to prevent tyranny.

And from the lead opinion:

The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose.

So?

Earlier your claim was that this case proves that "rights" and "powers" are so fundamentally distinct that the fact that the Constitution refers only to a State's "powers" indicates that no such thing as a "State's right."

At the time, you insisted that the distinction is this (to quote you): "Rights are recognized as inherent while "powers" are granted/given. This is stated in US v Cruishank."

In my reply, I noted that the opinion in Cruikshank actually says that rights can be secured... or granted.

If Cruikshank is to be believed, therefore, the fundamental difference between "rights" and "powers" cannot be, as you asserted, that rights are inherent while powers are granted... since according to Cruikshank at least some rights are granted.

If you still think you can distinguish satisfactorily between "rights" and "powers," such that a State cannot have a right with respect to the federal government even as it has powers over its citizens and terroritory... then how will you distinguish them now? What fundamental difference separates rights and powers that they cannot be held by one and the same entity?

The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference.

This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.Of these two quotations, one does not even refer to the Second Amendment. Do I detect a search-function "read" of the case?

Showing that the right is inherant.So? This is not our argument. I believe that it is an inherent right of a Sovereign state to arm itself. You believe that there is no such thing as a collective right, inherent or otherwise.

Being that the US constitution was about the federal gov't when it was written, no they wouldn't have. The states have their own constitutions.You know what? You're right...Keep the people armed to prevent tyranny.The funny thing is, not one of them (http://www.law.ucla.edu/volokh/beararms/statedat.htm) says that.

Being that the US constitution was about the federal gov't when it was written, no they wouldn't have. The states have their own constitutions. Keep the people armed to prevent tyranny.

The constitution was about the federal government and those entities that it governs. It was not strictly concerned with the federal govt.

As I pointed out, the 10th Amendment is designed to deliniate the boundaries between the powers of the federal government and the rights of the states.

The idea that the founding fathers did not intend to allow states to protect themselves from the federal government would be ludicrous considering the nature of the assembly.