The RKBA v 2nd Amendment

[discntnt_irny_srcsm]

My apologies in advance for addressing a subject which could, and probably should occupy volumes in a single short post.

IMHO, apart from government and society, the right to keep and bear arms is the right to own and use, for the purpose of personal defense, common weapons. The term weapons covers more than just firearms. It is a familiar scene in a movie where a small contingent stands reasoning with a larger angry group carrying torches, clubs and pitchforks. A knife or gun is not necessarily weapon. Tools designed to cut or to fire bullets can be used for purposes other than aggression. A weapon is most generally that which is used to subdue an opponent. A weapon can be a gun, a hand or foot.

Many essays have been written as long ago as Augustine of Hippo in the 4th/5th century on the justification for a forceful defense. Read them if you care to. Taken in its most extreme instance, a forceful defense is killing someone who is trying to kill you. In my mind, saying that there is a right to life but not an ultimate right to defend your life, is a contradiction.

The 2A (2nd Amendment) expresses this right. True, the militia clause is there but that clause does not cancel anyone's natural right of defense or the right to prepare to do so, namely to acquire, own and carry weapons. This topic is where many arguments begin, where debates become heated and relationships become strained. IMHO, the militia clause is part of the Bill of Rights to ensure that no individual state or subordinate agency of government will form it's own armed contingent and outlaw arms to individuals such that tyranny would be more easily enforced. The intent of the Founders, in my opinion, was to secure the state and federal governments against becoming tyrannical. The nature of a militia force allows for an armed contingent to be raised for any proper reason, anywhere and anytime.

The 2A expresses 2 ideals in parallel. The means to enable raising a militia force and the right of individuals to prepare for both militia service and their own defense by keeping and carrying arms.

All due respect to Justice Stevens, et al. the militia clause does have effect but does not limit the amendment to a sole single purpose.

[safeinOhio]

1. The Amendment does not

In any way refer to self defense. You may say that is a "natural right" in of its self but has nothing in the 2nd about it. I'll have to reread it to check.

[discntnt_irny_srcsm]

2. the amendment does not...

...explain the right. it only names and protects the right.

[safeinOhio]

3. To secure a free natio

That is all it says.

[Nuclear Unicorn]

4. What's the purpose of the other amendments?

Nowhere does the 1A refer to a freedom of conscience or the rejection of a social hegemony in matters of religion, politics and general opinion. It is more important for individuals to be free rather than have the state provide to them their views on morality and civics. Yet, that is the underlying intent.

The 2A may say, "free nation" but I doubt it could be argued with a straight face that the framers' sole intent was to describe the area within the defined borders comprising a geopolitical entity. They meant the people -- a people who are individuals with a free conscience.

[safeinOhio]

5. So, what they really meant was not what they said

"A well regulated Militia, being necessary to the security of a free State,"

The first doesn't give absolute freedom of speech or religion. For close to 200 years the second amendment was not an individual right, but a collective right. So, now we think it is different as to what they meant. History is on the side of "collective right". I would agree that what and where you may have a firearm is more of a state issue, that is until firearms move across state lines. That would mean states can restrict or allow "weapons". I say weapons as the 2n Amendment never mentions "firearms".

[gejohnston]

6. For close to 200 years..... but a collective right.

No it hasn't. The collective right theory didn't exist until the 1930s. That is why NFA created what was then an astronomical tax instead of an outright ban, because the writers feared a ban would be overturned.

The collective rights theory is a relative newcomer to constitutional jurisprudence. It
arose solely during the twentieth century and grew popular among jurists, social
commentators, and some members of the organized American bar only during the
second half of the twentieth century. n17 That the theory ever breathed life at all is
owed primarily to an irresolute 1939 United States Supreme Court opinion notable
only for its lack of clarity.

http://constitution.org/lrev/roots/death_collective_right_theory.pdf
Laws being overturned based on the individual rights theory date back to the 1840s
http://en.wikipedia.org/wiki/Nunn_v._Georgia

[Nuclear Unicorn]

7. Why is the second half of the statement always ignored?

Where would the militia obtain its arms? They weren't issued by the state. There were the private property of the individual citizens.

The first doesn't give absolute freedom of speech or religion.

Not sure where that is supposed to go but -- the rights may not be absolute but the individual still has to perform some act before they run afoul of the restrictions.

I know the, "You can't yell 'Fire!' in a crowded movie theater" line is very popular but the reality is: You can -- if there is a fire in the movie theater. There is no blanket prohibition on the word, Fire.

For close to 200 years the second amendment was not an individual right, but a collective right

I've never seen this debate resolved to the satisfaction of the proponents of the collectivist argument.

[safeinOhio]

8. More to the point of the 1st and 2nd

we have a SC ruling on both in one case

STATE OF EAST JERSEY,
PETITIONER,
V. FALAK GAGAN,
RESPONDENT.

"The decisions of this Court leave no room for doubt that a state statute regulating dangerous weapons in order to further public safety goals, despite burdening religious practices, does not violate the Free Exercise Clause of the First Amendment."

If you are a Sikh you can not use your religion to carry a knife or sword where restricted, even though it is required by your religion.

[Nuclear Unicorn]

9. That refers to specific practices in specific places. I doubt Bloomberg and his frothing horde

would ever adopt least restrictive standards, opting instead to impose general bans (his bodyguards and the communities of rich, whites being exempt, of course)

[mauren]

34. which case is that?

Hi can u provide me a link where i can get that case? or do u have a copy?

[discntnt_irny_srcsm]

35. LINK:

https://www.regent.edu/acad/schlaw/student_life/studentorgs/mootcourt/docs/rules.pdf

[hack89]

11. Go read the British Bill of Rights of 1689

you will see the model of our BOR - the similarities are striking and not coincidental. More importantly you will see that one of the rights the founding fathers enjoyed as Englishmen was the right to keep and bear arms. The 2A was not conjured out of nothing. There was centuries of British common law on the matter. You expect us to accept that they explicitly gave up a right they already enjoyed - and did it in the section of the Constitution that was explicitly added to delineate unalienable.individual rights.

[discntnt_irny_srcsm]

24. On the contrary...

...what they wrote indicates that without a general RKBA a militia is impossible, so let's highlight that fact when expressing the RKBA.


"By calling attention to 'a well regulated militia,' 'the security of the nation,' and the right of each citizen 'to keep and bear arms,' our founding fathers recognized the essentially civilian nature of our economy... The Second Amendment still remains an important declaration of our basic civilian-military relationships in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important." John F. Kennedy, Junior Senator of MA (emphasis mine)

[discntnt_irny_srcsm]

10. I quote...

"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 purpose of the first clause is to bind any government restriction generally prohibiting the operation of the right named in the second clause as that restriction would impair the raising of a militia. The citizen militia serves first by the general spirit trust to make available to every person the means to participate in a militia. A true militia is composed of less specialized troops than a regular army. Like the Marine Corps, members are riflemen first then may have also another specialty. General documentation from the time of the origin of the Constitution and BoR supports the NEED for general militia participation.

The citizen militia serves second by tangibly evidencing the trust of the government placed in the people. "When you disarm the people, you commence to offend them and show that you distrust them either through cowardice or lack of confidence, and both of these opinions generate hatred." (Machiavelli) People are less inclined to support and participate in a government they hate.

John Milton wrote
The power of kings and magistrates is nothing else, but what is only derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power yet remains fundamentally, and cannot be taken from them, without a violation of their natural birthright.

Sabine paraphrases from the idea mentioned in 1433 by Nicholas of Cusa: "The people lay down the conditions which the king is bound to fulfill. Hence they are bound to obedience only conditionally, namely, upon receiving the protection of just and lawful government…the power of the ruler is delegated by the people and continues only with their consent."

From the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Government authority extends from the people. Claiming that the government may protect people and prepare for that effort by acquiring and maintaining arms while denying that right to the people is an inherent contradiction.

Finally, the militia operates as a means, if necessary, to take a stand against tyranny. Some say that a rifle won't prevail against a missile. A missile is not a tool of tyranny. Small arms and individual weapons enforce tyranny. A missile is a tool of annihilation. There is no effective defense against an enemy bent on annihilation.

[Nuclear Unicorn]

12. See, THIS is why I switched sides in the gun debate.

At best the GC side offers argument by assertion. Even in those rare instances where they presume to offer evidence it's generally laced with personal invective, i.e. name-calling like "unicorny." The rest is just insults.

You guys have endured heapings of abuse of the sort that, were you to respond in kind, would earn you a HIDE from a jury. When y'all do respond it is with technical articles, case law, readings from history, etc.

I really miss our old regular One Eyed Fat Man (especially after I figured-out where his name came from). He had some of the best posts. He spoke to my academic soul.

[safeinOhio]

13. "Bloomberg and his frothing hord"

"headings of abuse" "laced with personal invective"

Funny i saw none of that from the GC folks in this thread.

[Duckhunter935]

14. unlike child killers and future muderers

posted many times in other threads to describe firearms owners

[Nuclear Unicorn]

15. How would you describe a group that relies on calling people

gun humpers, baby killers, etc.?

[safeinOhio]

17. Not like

Grabbers, authoritarian or racist, like reasonable gun law supporters.

Just more white, Christian types that claim persecution. Never mind what Ted Nugent and all the other right wingers say about GC, or the threats of gun violence by the open carry mob in Texas.

[Nuclear Unicorn]

18. People who want to disarm peaceable people are grabbers.

People who demand uncritical obedience to ineffective/unconstitutional laws are authoritarians.

People who want minorities disarmed are racists.

Just more white, Christian types that claim persecution.

So, what should be done about them?

[safeinOhio]

20. Disregard the extremes on both sides

[Nuclear Unicorn]

21. I can't help but notice that as an interlocutor you are

considerate, not given to insult and attempt genuine dialogue. Compared to what we're usually treated to around here that makes you the fringe.

[Duckhunter935]

27. I hope you will also point out

and shame some of those posts from the side you lean towards like we do all the time to the nutjobs that do the open carry protest crap.

[Duckhunter935]

26. all on DU support reasonable gun laws

most just do not support unreasonable ones that do nothing about the problem.

[gejohnston]

33. authoritarian racists like Bloomberg?

We always knew he is an authoritarian, but his inner sheet came out in Aspen, CO. That is before we discuss his sexism and sexual harassment complaints. Then there is this guy. In some cases, racist is a fair charge, just like dishonesty.

Never mind what Ted Nugent and all the other right wingers say about GC,

Ted Nugent doesn't affect my opinion on anything. Neither does Thom Hartman.

or the threats of gun violence by the open carry mob in Texas.

I think these guys are fools, but I'm not going to judge them or anyone else based on unsubstantiated claims by the likes of Shannon Watts. Let's face it, MDA's credibility sucks as bad as Ted Nugent's guitar playing. Even CNN saw through the bogus school shooting numbers. Is getting sued for another bogus report they created.
?oh=e70cdf911e14f11d10509f0745b6d3f7&oe=554EC49C&__gda__=1431866102_aeef1861dc2021fa0659640fd47b8921

Oh, then there is being appalled at the fact that some guy in Tampa was arrested (and what Florida calls "Baker acted&quot for tackling from behind and assaulting an elderly CCW holder. What was the CCW holder doing? Walking while black.
http://www.myfoxtampabay.com/story/27896784/man-spots-gun-then-tackles-concealed-carry-license-holder
I guess Watts likes vigilantism?
http://www.thetruthaboutguns.com/2015/01/foghorn/shannon-watts-assaulting-gun-owners-legal/

My question is: why the weasel words like "sensible" and "reasonable" and nothing specific? Reasonable and sensible to whom? Judging from NY, CT, NJ etc they seem to mean UK or Mexico style gun laws. I don't call that sensible or reasonable.

[discntnt_irny_srcsm]

16. I'm guessing you were responding to someone else

BTW, who is the "One Eyed Fat Man"?

[Nuclear Unicorn]

19. No, I was responding to you. Arguments should be evidence based, as yours is.

One Eyed Fat Man was a poster here back in the days of DU2. He had an endless stream of knowledge from history and case law.

[discntnt_irny_srcsm]

23. Please see #22

I was here for the maybe 6-8 months of DU2. Memory isn't what it used to be.

[gejohnston]

25. I miss him too

I fear old age caught up with him and Green Storm Cloud. BTW, any idea what happened to Euromutt?

[discntnt_irny_srcsm]

28. I fear the same for ProgressiveProfessive

He wasn't well.

[gejohnston]

29. I know for certain he isn't

in this space/continuum anymore. Another one I miss.

[Nuclear Unicorn]

30. They are good people. They are on my list of those I look forward to meeting one day.

[discntnt_irny_srcsm]

31. sad

[discntnt_irny_srcsm]

22. I understand

Re: "When y'all do respond it is with technical articles, case law, readings from history, etc."
In infer that we're just no good at 'shooting from the hip'.

I like to think my opinions are based on some logic and history that agree with those of thinkers who have education, experience and intelligence on their side.

[JackW]

32. Well regulated militia vs. standing army

Through our elected representatives, the American people have chosen not to exercise their right to keep and bear arms in the militia context.

Today, Instead of a well regulated militia, we have a strong regular army that serves in time of peace as well as war. In other words, we have a standing army, exactly the kind of force our Founders feared and wanted to avoid. (To Thomas Jefferson, writing to President Washington, September 9, 1792, the Second Amendment was “freedom from standing armies.”)

Now our freedoms in large measure depend upon our standing army. And, in contrast to the era of our Founders, no American civilian is required by law to turn out with arms for periodic exercise, training, or actual service as part of a well-regulated-militia company.

A well regulated militia is one that is governed by what George Washington called “a well regulated Militia Law.” Such a law, he said, must include service from “every Man, capable of bearing Arms.” (Washington to Governor William Livingston, January 24, 1777) It would have been more than a little odd to amend the Constitution to protect those individuals in their “right” to obey their own states’ militia laws.