Gun Control & RKBA
Related: About this forumHow is Meatloaf's 'Id Do Anything for Love' like the 2nd Amendment?
(But I won't do that)
So what is “that”? “It’s the line before every chorus,” explained Loaf. “There’s nine of them, I think.
The problem lies because Jimmy likes to write, so you forget what the line was before you get to ‘I won’t do that.'”
(Some of the things the song says he won’t do: forget the way you feel right now; forgive himself if you don’t go all the way tonight; do it better than he does it with you, so long; and stop dreaming of you every night of his life.)
On the other hand.....................
“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.”
What happened to the first part?!
The 2nd amendment is one of, if not the most, debated Amendments in the United States Constitution. Most noteworthy, until the late 1960s, restrictions on the 2nd Amendment were not questioned. The NRA itself, in the early 20th Century, not only favored restrictions they publicly announced them. The completely changed their tune in the late 1960s.
The Amendment has actually been changed in the past 20 years. Those that fully support the Amendment have erased the first part from the collective memory.
Think about it, when you hear someone (that fully supports this right) quote the Amendment, they only include “… the right of the people to keep and bear Arms…” Every so often they will throw in the last part about infringed when they are trying to make a point. They rarely, if ever, mention the very first part that includes the very important phrase “A well regulated Militia.” They do this for a very good reason. It completely destroys their argument that every man and woman in the United States has a right to own a gun.
The simple reason for this is because the 2nd Amendment does not actually give citizens a right to bear arms. The 2nd Amendment guarantees a citizen the right to bear arms if they serve in a militia. It is right there in the Amendment.
Take a look at the Bill of Rights for a moment. One theme that should pop out to you is that the language in the Bill of Rights and the rest of the Amendments is not vague. To put it another way the wording is not confusing. Every part of the Amendments is laid out in such a way that is easy to understand. Except, somehow, the 2nd Amendment.
This is the main reason why I do not believe that the Amendment is left vague or confusing. It is really simple and straightforward.
Let me re-arrange the wording to help out:
The right of the people to keep and bear arms for a well regulated militia, being necessary to the security of a free state, shall not be infringed.
Does it make more sense now? Despite the NRA’s attempts, the two sections of the Amendment are not meant to be separated, 'cause linguistics. If the Founder’s had wanted the two sections to work independently of each other they would have included a very important word. And. Take a look.
A well regulated militia, being necessary to the security of a free state, AND, the right of the people to keep and bear arms, shall not be infringed.
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discntnt_irny_srcsm
(18,593 posts)Since virtually all free citizens of that time were intended to participate in the militia, there was no mention of a limitation. The idea of a militia like the Minutemen of the revolution mostly precludes an interpretation other than arms in every household.
mac56
(17,628 posts)"Since virtually all free citizens of that time were intended to participate in the militia"...
Certainly not women and children. Neither were considered citizens. By your logic, only white adult males should be allowed to own guns.
sarisataka
(21,211 posts)you are correct. Since that time, the passage of the Fourteenth, Fifteenth, Nineteenth and Twenty-Sixth Amendments have expanded that definition.
discntnt_irny_srcsm
(18,593 posts)...in the fullest sense of the terms, women and children weren't considered free citizens. In the 18th century each household was headed by a husband and father, sometimes an eldest male sibling. Children were considered property and women and wives weren't much above that. Many minorities were held as slaves, indentured or some other non-free status.
Children still can't vote. Women couldn't vote until about 1920. Native Americans were allowed to vote on a state by state basis. The last state to the voting restriction and allow Native Americans to vote was Utah in 1954.
While it's not to difficult to figure out what rights people really have and ought to have respected by their peers and government, it has always been difficult to decide which groups get to be recognized as "people". It's sad but true.
hack89
(39,180 posts)that's good enough for me.
While we are looking so closely at the Bill of Rights, why did you miss the obvious point that every right in the BoR is an individual right? That is why it was added to the Constitution in the first place - to ensure it was clear that there were certain rights that the government could not take away. It grants nothing - it protects existing rights.
needledriver
(836 posts)that the right to keep and bear arms stated by the 2nd amendment is limited to militia service.
Here is a link to a clear and well presented legal opinion on the 2nd amendment:
http://www2.law.ucla.edu/volokh/common.htm
jmg257
(11,996 posts)That right already existed. That right was also codified (in a marital context) along with the militia clauses in the body of the constitution.
The Militias (AKA the people) already had the right and duty to serve, and so had the right to arms.
Mr Scott, 20 Aug, 1789 when debating the article which later became the 2nd amendment.
It was only because the new Central govt was given power for providing the guideline for how the people would arm themselves that the 2nd was deemed necessary. The people could not be DIS-armed by any act of govt.
The state militias were well-understood entities at the time. ALL the people (with notable exceptions) were expected to serve, so ALL the people had the right to arms secured. The people want(ed) to change the definition of "militia" fine, but that was not the intent of the 2nd (nor of the constitution), - it does not affect its securities.
It is also quite clear that the founders did not intend that THE vice-president, ALL the member of congress, postal Clerks and stage drivers, Judges, etc would be denied the right to arms even though they were exempt from militia service.
Adams? Jefferson? Burr? Gerry? Clinton? Lee? etc. etc?...men who just fought a revolution over rights (a revolution started by attempts to disarm them) willingly give up the right to arms?!? That makes NO sense.
The Second Amendment to the Constitution does not give any rights. The Second Amendment is a restriction on the Federal Government from interfering with a citizen's right to be armed. The right to keep and bear arms precedes the formation of the Government, and therefore cannot be given by the Government.
(As for the first part, it is a dependent clause to the statement and only serves as an example to support the statement).
jimmy the one
(2,717 posts)goodall: The Second Amendment to the Constitution does not give any rights. The Second Amendment is a restriction on the Federal Government from interfering with a citizen's right to be armed. The right to keep and bear arms precedes the formation of the Government, and therefore cannot be given by the Government.
The bill of rights was both a restriction on congress & a guarantee of individual rights (in 2nA case, the right to belong to a well regulated militia, right as a duty):
Wm Rawle, 1829, A view of the constitution, all caps in link, not my emphasis: CHAPTER X. OF THE RESTRICTIONS ON THE POWERS OF CONGRESS — AND ON THE EXECUTIVE AND JUDICIAL AUTHORITIES — RESTRICTIONS ON THE POWERS OF STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS
Of the amendments already adopted, the eight first in order fall within the class of restrictions on the legislative power, some of which would have been implied, some are original, and all are highly valuable. Some are also to be considered as restrictions on the judicial power.
The constitutions of some of the states contain bills of rights; others do not. A declaration of rights, therefore, properly finds a place in the general Constitution, where it equalizes all and binds all. http://www.constitution.org/wr/rawle_10.htm
encyclopedia britannica: Bill of Rights, in the United States, the first 10 amendments to the U.S. Constitution, which were adopted as a single unit on Dec 15, 1791, and which constitute a collection of mutually reinforcing guarantees of individual rights and of limitations on federal and state governments. http://www.britannica.com/EBchecked/topic/503541/Bill-of-Rights
wiki: The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these amendments guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers to the states and the public. http://www.democraticunderground.com/1172167980
Goodall: (As for the first part, it is a dependent clause to the statement and only serves as an example to support the statement).
If you are referring, as 'the first part', to the militia clause 'a well regulated militia being necessary to the security of a free state,', as being a 'dependent clause, I rather believe Wm Rawle in 1825 from his A View of the Constitution, than someone immersed in 2nd Amendment Mythology:
In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
http://press-pubs.uchicago.edu/founders/print_documents/amendIIs9.html
Wm Rawle calls the individual rkba clause a COROLLARY to the well regulated militia PROPOSITION, and a corollary is what is DEPENDENT upon a higher order of law or rule.
yagotme
(3,918 posts)"The bill of rights was both a restriction on congress & a guarantee of individual rights (in 2nA case, the right to belong to a well regulated militia, right as a duty): "
"The right of the people to keep and bear arms."
I don't see what you typed in the second line there. No "The right to belong to a militia" as far a I can see...
sarisataka
(21,211 posts)people found the song so confusing. It was always clear to me.
If you really wish to change the wording, look at the drafts of the Amendment-
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person
later
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
Now you may try to argue that both of these, and indeed every other draft, mentions militia. One could argue that the founders felt only the militia should bear arms but you would be wrong. Both the Federalists and anti-Federalists agreed on the dangers of an over-powerful central government. George Mason spoke on the concern of how the militia must be a counterbalance for the people:
The founders did believe in the militias being controlled by the states until summoned to duty by Congress. That leaves open a question they likely did not consider- What if the states neglect their duty to maintain militias?
That is answered by the Ninth and Tenth Amendments:
If the states will not maintain militias the right to keep and bear arms will then revert to the people.
yagotme
(3,918 posts)preclude the use of the word "AND" in your example.
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.
"A well regulated Militia," The militia of the time were the foundation for the conscripts for the army, and provided for local/community defense/order. Well regulated meant performing properly, as a well regulated clock.
"being necessary to the security of a free state," Explanatory statement, reason for previous one.
"the right of the people to keep and bear arms," "The right" refers to a natural right, which means it is not "given" or "allowed" by government, or man. SOME of these are listed by name in the BOR, the 10th alludes to others. "The people" have gone through various definitions throughout our history, but basically boils down to citizens of the community. "Keep and bear arms,". This is where a lot of the arguments really start. What are arms? Assault rifles? A Brown Bess of the period accepted a bayonet, and would be the assault rifle of the time. Did they consider banning them? No. Bayonets, swords, military rifles, sporting arms, were all considered "arms". I'm sure, if one could afford one, that a cannon could have been owned by an individual. "Keep and bear." Usually, I would think that this would be self explanatory, but some seem to think that "keep" and "bear" don't mean what they mean. "Keep" means to have, to own. "Bear", to carry, port.
"shall not be infringed." Again, seems to be self explanatory. "shall not be." Don't do it. "infringed." To limit/restrict unnecessarily, without due legal process.
And, before anyone asks about letting criminals having guns, "citizen" was defined as LAWFUL member of community. Criminals were not allowed many constitutional rights due to their crime.
jmg257
(11,996 posts)Easily can be said as:
Because well regulated militias are necessary to the security of free states, the people shall not have their right to KEEP and BEAR arms infringed.
Pretty straight forward (even in its original form), as to WHY the right was specifically secured. {do not underestimate the importance of the people/state militias! They are vital to securing our freedoms, as listed in the constitution!!}
But what really matters is that the right WAS and IS specifically secured.
safeinOhio
(34,200 posts)Only refer to fire arms? Not knifes, brass knuckles and nuclear bombs. Why, according to the courts, was it referring to a communal right and not an individual right for the first 200 years?
sarisataka
(21,211 posts)Consider the text of the Uniform Militia Act, 1792-
Knives- protected. Brass knuckles- no, the Court has previously ruled that only arms useful to militia service are protected. Nuclear bombs- no, arms above and beyond those used by a typical infantry soldier have always been the purview of the government controlling the militia.
When did the court rule it was a communal right? Constitutional scholars never believed it was anything but an individual right:
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.William Rawle, A View of the Constitution of the United States of America 1825
The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to "life, liberty, and property," to "keep and bear arms," to the "writ of habeas corpus" to "trial by jury," and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.Timothy Farrar, Manual of the Constitution of the United States of America 1872
It might 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 enrolment 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.Judge Thomas Cooley Treatise 1880
Nor did the Supreme Court ever rule that the right to keep and bear arms was anything but an individual right.
jimmy the one
(2,717 posts)sarisak: William Rawle, A View of the Constitution of the United States of America 1825
Timothy Farrar, Manual of the Constitution of the United States of America 1872
Judge Thomas Cooley Treatise 1880
Only Wm Rawle should be considered knowledgeable of the original intent of the 2nd Amendment, the other two are dated & the dichotomy between the interpretations well established by then (1872, 1880) - so they could be individual rkba zealots by then, of which there were legion. So readers should disregard Farrar & Cooley, and any of the other hundreds of latter day aint's the pro heller people might provide.
Sarisak takes Wm Rawle out of context & quotes only a paragraph which appears to support the individual interpretation, but is based upon dialectic reasoning which cannot always be guaranteed as to validity.
Here is Wm Rawle in 1825 in fuller context, regarding the 2nd amendment. Not how often he mentions 'militia':
In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
A corollary is something which is derived from a higher rule or law, enuff said?
sarisataka
(21,211 posts)Of the individual rights; I'm glad to see you have come around. The last paragraph is clear:
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
Indeed, even prior to the rulings that specifically guaranteed to BoR protections at the state level, {disarming the people} by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
The use of the word corollary, defined by Webster as:
1: a proposition (see 1proposition 1c) inferred immediately from a proved proposition with little or no additional proof
2a : something that naturally follows : result < … love was a stormy passion and jealousy its normal corollary. — Ida Treat>
b : something that incidentally or naturally accompanies or parallels <A corollary to the problem of the number of vessels to be built was that of the types of vessels to be constructed. — Daniel Marx>
Does not support your position that the individual right is derived, i.e. dependent on, the militia, rather proven by it. Individuals have the right to keep and bear arms and, if anything, their right to belong to a state militia has been abrogated by the Federalization of command of the National Guard. As I have speculated in the past, there is a good argument that the 1903 Militia Act is unconstitutional. I'm not saying it wasn't the correct thing to do as the state militias were woefully neglected but government neglect does not void any rights.
jimmy the one
(2,717 posts)sari: The use of the word corollary, defined by Webster as:
Does not support your position that the individual right is derived, i.e. dependent on, the militia
You got the right dictionary, but the wrong year, the wrong era:
Read the definition of corollary from Webster's dictionary 1828:
COROLLARY 1. A conclusion or consequence drawn from premises, or from what is advanced or demonstrated. If it is demonstrated that a triangle which has equal sides, has also equal angles, it follows as a corollary that a triangle which has three equal sides, has its three angles equal.
A corollary is an inference from a preceding proposition.
2. A surplus.
IN'FERENCE, noun A truth or proposition drawn from another which is admitted or supposed to be true; a conclusion. Inferences result from reasoning, as when the mind perceives such a connection between ideas, as that, if certain propositions called premises are true, the conclusions or propositions deduced from them must also be true.
http://webstersdictionary1828.com/Dictionary/inference
Note keywords in the definitions above of corollary & inference = DRAWN from, DEDUCED;
Derive: 1828: DERIVE 1. To draw from, as in a regular course or channel; 2. To draw or receive, as from a source or origin... 3. To deduce or draw, as from a root, or primitive word http://webstersdictionary1828.com/Dictionary/derive
Sorry sari, you lose your argument.
Oxford dict: 1A proposition that follows from (and is often appended to) one already proved.
Example sentences 1.1 A direct or natural consequence or result.
‘the huge increases in unemployment were the corollary of expenditure cuts’
In the example above, it's quite synonymous to say: 'the huge increases in unemployment were derived from & due the expenditure cuts'.
As well, you cited the modern Webster's:
The use of the word corollary, defined by {modern 2000's} Webster in 3 ways:
VALID, corroborated by websters 1828: 1: a proposition (see 1proposition 1c) inferred immediately from a proved proposition with little or no additional proof
VALID with websters 1828: 2a : something that naturally follows : result < … love was a stormy passion and jealousy its normal corollary. — Ida Treat>
INVALID with websters 1828: b : something that incidentally or naturally accompanies or parallels <A corollary to the problem of the number of vessels to be built was that of the types of vessels to be constructed.
The last definition 'b' (2b) has no corroboration in Webster's 1828 dictionary. It comes from you citing the most recent Webster's dictionary, but readers can see by now the flaw in your reasoning, applying modern definitions to the 1800's.
Also, an example from the modern Webster's you cited again demonstrates synonymity with 'derived':
<increased taxes—or expanding deficits—are the inevitable corollary to any new government spending program>
Increased taxes are 'derived' from the new govt spending program - not exact, but quite similar.
sarisataka
(21,211 posts)The keyword, i.e. subject is "conclusion" and "truth". Action, or process, it the conclusion and truth is drawn from the previous proposition "A well regulated Militia, being necessary to the security of a free State,". The truths are not dependent on the first but that both are true.
Your word-
de·duce.
VERB
1.arrive at (a fact or a conclusion) by reasoning; draw as a logical conclusion
is arriving at a fact by reason or logic.
jmg257
(11,996 posts)Bayonets, ammo etc are all secured.
Whatever a well functioning militia would need to arm themselves with.
flamin lib
(14,559 posts)the core concept of gun lovership. Over turned the simplistic understanding of those who cling to their guns and NRA talking points.
Makes no difference what the guys who wrote the damn thing had to say to each other in the Federalist Papers, it's gospel and anyone not holding the 2nd near their heart is hell bound.
May Dog have mercy on your soul . . .
hack89
(39,180 posts)After all, the party platform says that the 2A protects an individual right.
Marengo
(3,477 posts)friendly_iconoclast
(15,333 posts)Marengo
(3,477 posts)
HAB911
(9,365 posts)discntnt_irny_srcsm
(18,593 posts)Have a nice day
pablo_marmol
(2,375 posts)HAB911
(9,365 posts)discntnt_irny_srcsm
(18,593 posts)...here
...here
X_Digger
(18,585 posts)Free clue: it's not a "the people can" document, it's a "the government can't".
Rights exists. If you're of an enlightenment bent, you believe they flow from the nebulous creator.
Go read the preamble of the bill of rights for me, then answer this- "declaratory and restrictive clauses" against whom? Abuse of whose power?
jimmy the one
(2,717 posts)You are spot on regarding most everything you wrote in your OP, HAB (I have to couch in case there's something hiding I don't agree with).
Note how in the 8 original states which had 'have arms' decrees in their bills of rights, there was not one single state designating an individual rkba outside militia. They ALL included for the state defense, & 6 of those 8 states were exclusively for the militia rkba (right to keep bear arms), and only two included BOTH state & individual rkbas.
(rightwing) Madison Brigade: Eight of the original states enacted their own bills of rights prior to the adoption of the {US} Constitution. The following states included an arms-rights provision in their state constitution...
Virginia (Jun12, 1776) 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, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.
DEL (Sept11,1776) That a well-regulated militia is the proper, natural and safe defence of a free govt.
PENNSY (Sep28, 1776) XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.
MARYLAND (Nov 11, 1776) XXV. That a well-regulated militia is the proper and natural defence of a free government.
NOR CAROLINA (Dec18, 1776) XVII. That the people have a right to bear arms for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under the strict subordination to, and governed by, the civil power.
VERMONT (July 8, 1777) XV. That the people have the right to bear arms for the defence of themselves and the State …
MASSA (Oct25, 1780) XVII. The people have a right to keep and bear arms for the common defence.
NEW HAMPSHIRE (June 2, 1784) XXIV. A well regulated militia is the proper, natural, and safe defence of a state.
http://www.madisonbrigade.com/library_bor_2nd_amendment.htm
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
.. look at New York & Rhode Island proclamations (same link) about Constitution ratification:
NEW YORK CONVENTION (July 26,1788) That the people have the 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.
RHODE ISLAND RATIFICATION CONVENTION (May 29, 1790) XVII. 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.
The preface's above were 'That the people have the right to keep & bear arms'. Is that the 'declaratory clause' according to Scalia? so that the well reg'd militia clause following is the 'operative' clause? pls explain judicial pig scalia, caught between a rock & a hard place?
NEW YORK CONVENTION (July 7,1788) {prior to above} That the militia should always be kept well organized, armed and disciplined, and include, according to past usages of the states, all the men capable of bearing arms, and that no regulations tending to render the general militia useless and defenceless, by establishing select corps of militia, of distinct bodies of military men, not having permanent interests and attachments to the community, ought to be made.
HAB911
(9,365 posts)the right to bear arms in order to overthrow the government, aka sedition and treason, LOL.
jmg257
(11,996 posts)than an offensive (& treasonous) one.
If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia... direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people?
Hamilton Federalist 29
Then again, it took over a hundred years for his notion of "a selective militia" to come to be, and the whole "no standing army" thing of course turned out to be a huge sham.
HAB911
(9,365 posts)Peashooters against tanks, howitzers, drones, and missiles, that should work
The 2nd A does not excuse sedition or treason, and there is no constitutional right of either.
jmg257
(11,996 posts)Last edited Tue Jan 17, 2017, 04:39 PM - Edit history (1)
And my pointing out exactly how HE saw the role of the militia as capable of defending the rights of the people against tyranny.
AND the reality of just how practical that notion has become over the years (i.e HUGE standing army vs the National Guard)
US in Vietnam
USSR in Afghanistan
Just to start. Takes boots on the ground to "take and hold" territory. Park a tank in a town square, somebody's gonna figure out how to get behind it with a det charge. Howitzers are great for tearing up grid squares, not so much against small point targets that are hidden/unknown, and you have to have troops to defend the positions. Drones carry X-amount of payload, and need secure base. Missiles are good, but $. Remember the "Million dollar missile to hit a camel's butt"? Planes can carry good payloads, have good targeting, but need a secure base to operate from.
HAB911
(9,365 posts)jimmy the one
(2,717 posts)Dunno if you've seen this, HAB, a rebuttal to heller made circa 20008 (a repost of something I wrote in the past). Much more to it as well, check the link if still active:
British scholars, on heller decision: ... reconstructing the historical meaning of the right to “have arms” deserves better than Petitioners’ selective reading and mischaracterization of Blackstone’s reference to the “natural right of resistance and self-preservation,” the 1768 Boston Town Council’s militia resolve, and the grievance against Thomas Gage http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf
Perhaps you've never seen the amici curiae which a consortium of 21 british scholars sent to the scalia led heller court, telling him how wrong he was regarding the british 'have arms' decree. So much so that scalia left out mentioning his 1689 'have arms' decree argument in 2011 McDonald.
I think this consortium of british scholars knows more about the have arms decree than ghost in the machine and wiki's pro gun spin & whatever rightwing blogs he cites; blackstone's remarks above were militia centric, and on English game laws were misunderstood since remarks occurred after ~1671 game laws had changed.
BRIEF FOR ENGLISH/EARLY AMERICAN HISTORIANS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
http://www.oyez.org/sites/default/files/cases/briefs/pdf/brief__08-1521__22.pdf
Amici simply urge that the Court base its decision on a well informed study of historical facts, which demonstrates that armed self-defense of the home by individuals acting for private interests was not the right enshrined in the Second Amendment
In {DC} v. Heller (2008), the {US Supreme} Court examined the English Declaration of Rights of 1689, correctly finding that the right to “have arms” in Article VII is the basis of the right enshrined in the Second Amendment.
The Court also correctly recognized that the Second Amendment right to bear arms was an individual right to have and use arms for “self preservation and defense” as in its English predecessor.
However, contrary to discredited scholarship {to wit Joyce Malcolm} upon which Heller relied, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm. Accordingly, the right to own or use arms for private purposes is not a right deeply rooted in our nation’s tradition, and should not be incorporated as against the states by the Fourteenth Amendment.
The “have arms” provision in the English Declaration of Rights, which was later codified as the Bill of Rights, provided two protections to the individual.
First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders.
Second, the grant of a right to “have arms” was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of “self-preservation” and “resistance” should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.
In no part of his Commentaries does Blackstone link the right of personal security with the possession of arms, nor does he cite the Declaration of Rights’ “have arms” provision in his discussion of personal security.
... In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point. ...Amici, based on a wealth of scholarship, disagree with Malcolm’s conclusions. Contrary to Malcolm’s view, the “have arms” provision was the result of a political dispute over whether ultimate control over the militia
The {supreme} Court “throughout its history has freely exercised its power to reexamine the basis of constitutional decisions.” That the Heller decision is recent only weighs in favor of quick action by the Court to correct its error of historical interpretation
Amici Curiae are scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history. Each has earned one or more advanced degrees in history, political science and/or law.
jimmy the one
(2,717 posts)Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The {2ndA} declares ‘the right of the people to keep and bear arms shall not be infringed.’ The reason is, ‘because a well regulated militia is necessary to the security of a free state.’
. . . The provision of the Constitution declaring the right to keep and bear arms was probably intended to apply to the right to bear arms for such {militia related} purposes only, and not to prevent Congress or legislatures from enacting laws to prevent citizens from going armed. A different construction however has been given to it.” (1832)
Oliver contends in 1832 in his book that the 2ndA was 'probably' intended for militia related purposes only, and that by 1832 a different interpretation had been given to it (as well as the militia). How many writings can the pro gun crowd come up with which clearly contend an individual rkba was intended? I haven't seen any valid ones yet.
Scotus Justice Joseph Story, 1833: The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.
.... The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.
There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html
Which clause was Story writing of in the last sentence? the militia clause of course, since 'the people' would still be well enough equipped with guns (by 1830s even sooner), if the militia system was discarded.
Story clearly was concerned about what would happen if the militia system were discarded, how then would the people be 'duly armed', logically story supporting the militia interpretation.
Note in my first 2 cited paragraphs by Story, he praises the militia for essentially the same things he praises 'the people' for, thus providing a militia link to both and that the militia & people were being used synonymously (arbitary power & usurpation by rulers).
sarisataka
(21,211 posts)'nuff said
"I ask, sir, what is the militia? It is the whole people, except for a few public officials."
--George Mason {note he does not say 'those enrolled'...}
"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton
"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams
"{The Constitution preserves} the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison
"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
--John Adams {individuals have the right to use arms in self-defense}
"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"
-- Patrick Henry
"Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."
--Richard Henry Lee
"The people are not to be disarmed of their weapons. They are left in full possession of them."
-- Zachariah Johnson
" ... to disarm the people - that was the best and most effectual way to enslave them."
-- George Mason
These are only the people who wrote and voted on the Constitution and Bill of Rights...
yagotme
(3,918 posts)They're dead, and that's not really what they meant...
jimmy the one
(2,717 posts)Sari thinks he has provided bona fide quotes from founding fathers proving that they thought 2ndA was an individual RKBA circa the time 2ndA was written 1791. He is wrong, as all the GNs are about this.
Sari either takes quotes out of context (ooc), or provides ambiguous quotes which have simply been twisted by rightwing propaganda & 2ndAmendment Mythology into the bogus belief that they support an individual rkba.
Sari takes some quotes out of context, as demonstrated below. As well I believe sari may have misquoted Hamilton. Sari needs provide a reputable link, since Hamilton is referring to 'the people' being armed as being for the militia, not 'at large' without that codicil:
1) "The best we can hope for concerning the people at large is that they be properly armed." Hamilton
In context Hamilton was referring to the militia, excerpts from the paragraph: "The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss..
Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year
2) sari's quote: "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." --John Adams
In fuller context: The militia then must all obey the sovereign majority, or divide, and part follow the majority, and part the minority. This last case is civil war; but until it comes to this, the whole militia may be employed by the majority in any degree of tyranny and oppression over the minority. The constitution furnishes no resource or remedy; nothing affords a chance of relief but rebellion and civil war: if this terminates in favor of the minority, they will terrorize in their turns, exasperated by revenge, in addition to ambition and avarice; if the majority prevail, their domination becomes more cruel, and soon ends in one despot.
It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of the citizens , to be used at individual discretion, except in private self defense , or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man— is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws"
Adams was not granting citizens an individual RKBA in the above, nor was he discussing it, he was simply mentioning exempting private use of arms from overall militia constraints. Sheesh, what a load of rubbish sari provides from his 2ndA mythology. Using dialectic reasoning again does sari & the GNs in.
3) Sari's misconception, also taking out of context: {The Constitution preserves} the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms." --James Madison
potowmac's reply: There is no implication in the passage {above} that Madison meant a individual right to be armed outside of accountability to public authority. Madison was describing a balance of power between state government and federal government, not Sue Wimmershoff-Caplan's "armed citizen guerrillas"
In fuller context: It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation , the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments of the several kingdoms of Europe , which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms .
http://www.potowmack.org/emerappi.html
sarisataka
(21,211 posts)they never once imply the right to arms is predicated or in any way limited to the active militia. Hamilton directly addresses, kindly highlighted by you, "all the militia" as a different entity then "excellent body of well-trained militia" he speaks of just after. Hamilton's "all the militia" is what is defined as the unorganized militia today. That those individuals be armed is expressed by Hamilton in the same passage:
Adam's quote does support the individual RKBA, while noting at the same time that they be governed by laws. The RKBA does not include any permission " to be used at individual discretion,". This is completely compatible with the SCOTUS ruling in Heller.
You are seriously citing Potowmac Institute as a rebuttal to Madison? The "Institute" is one man's glorified blog that takes quotes out of context, twists them into pretzels and leaps to unfounded conclusions. Even your cited quote-
qualifies itself with an assumption not in the text. Madison never, nor did any other contemporary, put forth that anyone had the right 'individual right to be armed outside of accountability to public authority". Just as stated by SCOTUS, the RKBA, as all other rights, is not unlimited but is subject to reasonable regulation.
yagotme
(3,918 posts)"It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of the citizens , to be used at individual discretion, except in private self defense , or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man— is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws"
To suppose arms in the hands of the citizens , to be used at individual discretion, except in private self defense.
This part of your quote would seem to me that he is saying that arms, in private hands, should be used for self defense. "Keep and bear arms". Just sayin'.