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Old January 24, 2013, 11:36 AM   #31
zukiphile
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Join Date: December 13, 2005
Posts: 1,653
Quote:
Originally Posted by Aguila Blanca
Does that answer the question of whether the Founders wanted the militia to armed as well as (or better than) the army? This IS what the 2nd Amendment is all about.
Permit me to disagree in a small but specific way. While different people saw different sorts of utility in protection of the right, that does not mean that the observed utility was what the amendment was "all about".

There is at work at that time an idea of natural rights, i.e. rights possessed by free men as a consequence of their nature. Those rights include an ability to speak without prior restraint from the government, a right to choose one's own religious observance and doctrine, and a right to keep and bear arms. The idea is not that these are narrow, technical privileges. Therefore, to argue that one possesses the right described in the Second Amendment for the purpose of carrying out insurrectionist theory, or hunting geese, or shooting Indians, or shooting trap misses the point that it is described as a right, not a narrow, technical license granted toward a specific and socially agreed end.

Viewed this way, the right described in the Second Amendment does not rest ultimately on a sense of constitutional fundamentalism, but a recognition that we are free men and that it is an insult, contrary to a free man's status or nature, to disarm him.

That is not a legal argument, and it is not obviously true to people who do not believe that just laws are shaped by something inherent in man's nature. However, I note this only to avoid the trap of tying and therefore limiting the right to a specific utility.

Last edited by zukiphile; January 24, 2013 at 11:46 AM.
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