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Author Topic: The Second Amendment  (Read 6875 times)
A18
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« on: October 30, 2005, 01:21:24 am »
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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 is comprised of two clauses; both should be read in pari materia. The second clause defines the right; the first describes why it should be protected.

Madison's original draft of the Second Amendment read as follows: "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." The right to keep and bear arms was seen as necessary for maintaining a free state.

In recent decades, a whole host of mistaken scholars have tirelessly argued that the Second Amendment protects only state militias. This claim is clearly fallacious. It assumes that "Militia" refers to "a select group of citizen-soldiers," rather than, as the Virginia Bill of Rights of June 1776 defined it, "the body of the people, trained in arms."

The words of George Mason are telling. "What is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."

Indeed, if the "states' rights" interpretation of the Second Amendment held water, the text would instead speak of "the right of the states to keep and bear arms."

Tench Coxe wrote probably the most systematic early overview of the Bill of Rights in his "Remarks on the First Part of the Amendments to the Federal Constitution," which appeared in the Philadelphia Federal Gazette in June 1789. In reference to the Second Amendment, he wrote, "the people are confirmed by the next article in their right to keep and bear private arms." Madison later wrote to tell Coxe that the ratification of the amendments would be "indebted to the cooperation of your pen."

It is clear from the text, history, and plain purpose of the article that the Second Amendment protects an individual right to bear arms. Moreover, this was the view assumed to be true by the framers of the Fourteenth Amendment, who repeatedly asserted that the Privileges or Immunities Clause of their amendment would protect the right of individuals to keep and bear arms.

It is unfortunate that we live in a time when rights found nowhere in the Constitution are protected, and yet those spelled out in plain English go unnoticed. Although some lower courts have embraced the original meaning of the Second Amendment, the Supreme Court has yet to do so, and the relevant case law there remains United States v. Miller, a singularly confused opinion that both sides insist supports their argument.

As Justice Joseph Story wrote in 1833, "[t]he right of a citizen to keep and bear arms has justly been considered the palladium of the liberties of the 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."
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« Reply #1 on: October 30, 2005, 01:38:15 am »
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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.

Good stuff, Philip -- I think it's very well defined, and -- if an issue -- needs restating every so often.  I'm more than willing to fight for the weapons that I own; this amendment should never be considered archaic, and is clearly defined in two parts as you say.
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« Reply #2 on: October 30, 2005, 02:06:02 am »
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You people are so paranoid that the Democrats are trying to take your guns away you are blinded by the way guns plague our society. Its not 1787, times change and most people don't need guns anymore.

That being said, I don't support repealing the 2nd Amendment, just a stricter interpretation of it. Those of us in urban/suburban areas shouldn't have to bear the brunt of a irresponsible gun-loving society.
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« Reply #3 on: October 30, 2005, 02:08:33 am »
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You people are so paranoid that the Democrats are trying to take your guns away you are blinded by the way guns plague our society. Its not 1787, times change and most people don't need guns anymore.

That being said, I don't support repealing the 2nd Amendment, just a stricter interpretation of it. Those of us in urban/suburban areas shouldn't have to bear the brunt of a irresponsible gun-loving society.

A stricter interpretation of the 2nd Amendment would result in less gun control, and rightfully so.
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« Reply #4 on: October 30, 2005, 02:14:40 am »
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You people are so paranoid that the Democrats are trying to take your guns away you are blinded by the way guns plague our society. Its not 1787, times change and most people don't need guns anymore.

That being said, I don't support repealing the 2nd Amendment, just a stricter interpretation of it. Those of us in urban/suburban areas shouldn't have to bear the brunt of a irresponsible gun-loving society.

A stricter interpretation of the 2nd Amendment would result in less gun control, and rightfully so.

A stricter interpretation meaning more restrictions on the right to own guns. I realize that since this is a male-dominated forum my gun views are unpopular, but...............I just have no interest in them and they do more harm than good.
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« Reply #5 on: October 30, 2005, 02:16:24 am »
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Judges are not authorized to amend the Constitution under the guise of interpretation, and that includes diluting the Second Amendment.
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« Reply #6 on: October 30, 2005, 02:24:31 am »
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On gun control I feel that the second clause determines the right of everyone to own  a gun (obviously certain people such as ex-felons/violent criminals shouldn't be allowed to) and under the 9th amendment, states (or in some cases they should defer to local governments) should be able to set their own policy what sort of guns are allowed to bought/used/possesed in that state.
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« Reply #7 on: October 30, 2005, 03:01:22 am »
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Well as you know the 14th Amendment applied the Bill of Rights to the states, so actually no, they can't infringe upon the 2nd Amendment.

The "militia" word does allow for certain restrictions, i.e. criminals, minors, possibly women in the original interpretation (not now of course).

I think the most obvious means of legal gun control is to create or increase the needed training to buy a firearm. That conflicts with the original understanding, but a rule skeptic judge/justice could argue that the increased capability of weapons requires more training such that the militia would be effective. After all, the point of the amendment is a strong militia, and a better trained militia is stronger.

Also, the amendment very clearly mandates citizens be allowed to carry their weapons ("bear" in addition to "keep").
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« Reply #8 on: October 30, 2005, 06:13:38 am »
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You people are so paranoid that the Democrats are trying to take your guns away you are blinded by the way guns plague our society. Its not 1787, times change and most people don't need guns anymore.

That being said, I don't support repealing the 2nd Amendment, just a stricter interpretation of it. Those of us in urban/suburban areas shouldn't have to bear the brunt of a irresponsible gun-loving society.

A stricter interpretation of the 2nd Amendment would result in less gun control, and rightfully so.

A stricter interpretation meaning more restrictions on the right to own guns. I realize that since this is a male-dominated forum my gun views are unpopular, but...............I just have no interest in them and they do more harm than good.

This has nothing to do with gender.  Our most prominent female poster here is a socialist whose one conservative trademark is on gun rights.
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« Reply #9 on: October 30, 2005, 06:30:08 am »
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Obviously one would have to be an active member of the militia for this amendment to apply.
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« Reply #10 on: October 30, 2005, 06:31:57 am »
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That assertion was already refuted. Please quit trolling.
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« Reply #11 on: October 30, 2005, 06:42:19 am »
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That assertion was already refuted. Please quit trolling.

What do you mean 'refuted'?  We just have different interpretations - such is the nature of interpretation, Philip.
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« Reply #12 on: October 30, 2005, 06:50:19 am »
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Your interpretation isn't based on any kind of legal reasoning. You're just saying 'obviously it means what I want it to mean.'
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« Reply #13 on: October 30, 2005, 06:53:13 am »
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Your interpretation isn't based on any kind of legal reasoning. You're just saying 'obviously it means what I want it to mean.'

That's all 'legal reasoning' is, Philip - just an excuse for what is essentially a political, ideological decision.
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« Reply #14 on: October 30, 2005, 07:05:49 am »
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Legal reasoning is about finding the objective meaning of words. I've explained this to you in some detail several times.

If we can understand each other's posts, we can understand laws.
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« Reply #15 on: October 30, 2005, 08:52:49 am »
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I dont own a gun and I dont hunt, but Im a strong supporter of the second amendment.  If my girlfriend and her mother werent PETA types, Id definitely go for my hunting license.  Several of my friends and relatives hunt, and they have a blast.  Its more than just killing an animal, its a bonding experience.
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« Reply #16 on: October 30, 2005, 12:06:19 pm »
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On gun control I feel that the second clause determines the right of everyone to own  a gun (obviously certain people such as ex-felons/violent criminals shouldn't be allowed to) and under the 9th amendment, states (or in some cases they should defer to local governments) should be able to set their own policy what sort of guns are allowed to bought/used/possesed in that state.

The ninth amendment says nothing about states, and if anything it disproves your point.
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The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
I see this as meaning no state can infringe on the Constitution and as the government is already laid out, with superior clause, the state government cannot do anything to contradict the Constitution thereby enhancing our freedom to bear arms.

Oops, I meant 10th amendment.  And like AuH2O the 14th amendement would apply the 2nd amendment to all the states so no state could deny anyone (with a few exceptions) the right to own a gun, but they can place restrictions on which types of firearms can be possessed/sold, etc.
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« Reply #17 on: October 30, 2005, 01:12:56 pm »
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On gun control I feel that the second clause determines the right of everyone to own  a gun (obviously certain people such as ex-felons/violent criminals shouldn't be allowed to) and under the 9th amendment, states (or in some cases they should defer to local governments) should be able to set their own policy what sort of guns are allowed to bought/used/possesed in that state.

The ninth amendment says nothing about states, and if anything it disproves your point.
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The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
I see this as meaning no state can infringe on the Constitution and as the government is already laid out, with superior clause, the state government cannot do anything to contradict the Constitution thereby enhancing our freedom to bear arms.

Oops, I meant 10th amendment.  And like AuH2O the 14th amendement would apply the 2nd amendment to all the states so no state could deny anyone (with a few exceptions) the right to own a gun, but they can place restrictions on which types of firearms can be possessed/sold, etc.

"shall not be infringed", not denied.
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« Reply #18 on: October 30, 2005, 01:32:53 pm »
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You people are so paranoid that the Democrats are trying to take your guns away you are blinded by the way guns plague our society. Its not 1787, times change and most people don't need guns anymore.

That being said, I don't support repealing the 2nd Amendment, just a stricter interpretation of it. Those of us in urban/suburban areas shouldn't have to bear the brunt of a irresponsible gun-loving society.

A stricter interpretation of the 2nd Amendment would result in less gun control, and rightfully so.

A stricter interpretation meaning more restrictions on the right to own guns. I realize that since this is a male-dominated forum my gun views are unpopular, but...............I just have no interest in them and they do more harm than good.
TexasGurl and I are both women and we are both supportive of the right to bear arms. Personally, whilst I cannot currently own a gun (I am not familiar with Californian gun laws and am also still a minor), I plan on acquiring one before moving out. My mother encourages me to have a gun and will likely get one herself after I move out, as she will be alone. If I ever need to subdue a bandit or rapist, I will not sit idly and wait for the police/authorities to arrive after the crime occurs. People who support gun control ramble incessantly about the nightmare of guns, yet I have never heard one strong argument regarding how to deal with house-breakers and criminals without using a weapon of some kind.
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« Reply #19 on: October 30, 2005, 01:53:45 pm »
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Evolution of the second amendment:

1776 Virginia Bill of Rights: 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

Proposed amendments of the Virginia Convention: The people have a right to keep and bear arms; that a well regulated militia compsed of a body of the people trained to arms is the proper, natural and safe defence of a free state

Amendments proposed by James Madison: 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

Amendments reported out of committee: 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 person relgiously scrupulous shall be compelled to bear arms

Amendments passed by house: 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 person relgiously scrupulous of bearing arms, shall be compelled to render military service in person

Amendments passed by senate: 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

Amendments proposed to states: Ditto above



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« Reply #20 on: October 30, 2005, 02:01:24 pm »
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Legal reasoning is about finding the objective meaning of words. I've explained this to you in some detail several times.

If we can understand each other's posts, we can understand laws.

People misunderstand each other's posts as often as they understand them on this board.  And that is without a motivation to misunderstand them.  For example I would be highly motivated to interpret the second amendment in a different way - a way that would allow pervasive gun control.  And if I had the power to do so, that is what I would do - if I were, for example on the Supreme Court. 

In the same way one can interpret into existence things one wants, such as the right to privacy.  Its all very easy, it is just a matter of getting power.
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« Reply #21 on: October 30, 2005, 02:35:19 pm »
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Of course judges are capable of dishonesty. That does not mean there is no method of true interpretation—discerning objective meaning.

Those who claim the original understanding of the Constitution is unknowable never apply this absurd principle to things like the National Banking Act, the Civil Rights Act, or the Social Security Act.
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« Reply #22 on: October 30, 2005, 04:08:54 pm »
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The argument that the Second Amendment protects only "select groups of citizen soldiers" acting under the authority of the states is nothing but the product of modern activism. The text makes it clear that the right to bear arms is a right of the people, not merely a right of "select groups of citizen soldiers."

The view that the right to bear arms is a right of all the people, not of a "select group," is historically justifiable. The Constitution of Massachussetts stated, "the people have a right to keep and to bear arms for the common defence." The original Constitutions of Pennsylvania and Vermont provided, "the people have a right to bear arms for the defence of themselves and the state." The original Constitution of North Carolina stated, similarly, "the people have a right to bear arms, for the defence of the State."

The right to bear arms, furthermore, is no less complete than any other right secured by the Constitution. It has been asserted by some liberal constitutional scholars that the government may regulate the bearing of arms in any way it sees fit, as long as it does not completely prohibit their possession. But apply this line of reasoning to any other constitutional right, and these very same scholars will have an apoplectic fit. Can it be said that the government may regulate speech in any manner it pleases, as long as it does not completely prohibit speaking? Can it be said that the government may regulate the press in any manner it pleases, as long as it does not completely shut down newspapers?

In Bliss v. Commonwealth (1822), the Supreme Court of Kentucky even went so far as to strike down a state prohibiting the concealed carrying of arms. Its holding, of course, was under the state Constitution, but the provisions of the Kentucky Constitution with regard to the bearing of arms are not very different from those of the Second Amendment. It held:

"The provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state... But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form--it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden."

The courts have attributed highly implausible etymologies to the word "militia," and have effectively stricken the Second Amendment from the Constitution. For reasons which I cannot fathom, the right to bear arms (explicitly guaranteed by the Constitution) is deemed much less important than the right to privacy (which has no constitutional basis at all). It does not seem to have occurred to the Supreme Court that the right to protect one's life might be at least as important as the right to protect one's privacy.
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« Reply #23 on: October 30, 2005, 04:54:01 pm »
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TexasGurl and I are both women and we are both supportive of the right to bear arms. Personally, whilst I cannot currently own a gun (I am not familiar with Californian gun laws and am also still a minor), I plan on acquiring one before moving out. My mother encourages me to have a gun and will likely get one herself after I move out, as she will be alone. If I ever need to subdue a bandit or rapist, I will not sit idly and wait for the police/authorities to arrive after the crime occurs. People who support gun control ramble incessantly about the nightmare of guns, yet I have never heard one strong argument regarding how to deal with house-breakers and criminals without using a weapon of some kind.

And you won't hear one that makes sense.  The criminals will not go to a gun shop, present 50 forms of id, wait, then pick up their gun days later.  They will not go to the local sheriff to apply for a concealed carry permit, present 50 forms of id, wait, then come back when approved.

They'll go the corner, buy a gun on the spot, and they're off on their criminal way.
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« Reply #24 on: October 31, 2005, 05:30:26 am »
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TexasGurl and I are both women and we are both supportive of the right to bear arms. Personally, whilst I cannot currently own a gun (I am not familiar with Californian gun laws and am also still a minor), I plan on acquiring one before moving out. My mother encourages me to have a gun and will likely get one herself after I move out, as she will be alone. If I ever need to subdue a bandit or rapist, I will not sit idly and wait for the police/authorities to arrive after the crime occurs. People who support gun control ramble incessantly about the nightmare of guns, yet I have never heard one strong argument regarding how to deal with house-breakers and criminals without using a weapon of some kind.

Housebreaking and criminality are caused by poverty, everett, and can be reduced by ameliorating that condition. 

Of course typically the neighborhoods of the poor are very far from the neighborhoods of their oppressors, so they end up victimizing one another, but if a poor could successfully invade the home of a member of the owning class and mete out a little revenge, who could blame him?  One might perhaps even feel a twinge of sympathy for the underdog.

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