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Old January 2, 2013, 05:54 PM   #26
Hugh Damright
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To protect ourselves against a tyranical government was the reason that the 2nd Amendment was placed in the Constitution.
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I do not believe the right was included in the Bill of Rights as a utilitarian means to an end.
I believe there was some of that ... the end being free States, and militia being the means ... but at the same time, I believe the RKBA was included as an end ... I don't see why the amendment can't have a dual purpose, a declaration regarding the proper defense of a free State, and a declaration that the federal government shall not disarm the people.


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All of the Bill of Rights was aimed to limit the power of government, state, local or Federal, to infringe on the rights of the people.
The way I understand it, a constitution frames a government, and a BOR declares principles of, or limits up, that government ...such that the USBOR was intended to bind only the federal government, that being the only government framed by the associated constitution.
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Old January 2, 2013, 06:10 PM   #27
zukiphile
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Originally Posted by Hugh Damright
I believe there was some of that ... the end being free States, and militia being the means ... but at the same time, I believe the RKBA was included as an end ... I don't see why the amendment can't have a dual purpose...
There is a contradiction between:

1. You have a right to X, and

2. There is a right to X because it helps with Y.


In 1, you are simply recognised to have a right to X. Changing technology and circumstances don't influence whether you have that right.

In 2, you have the right to X in order to help with Y. If Y is no longer needed, then the underlying reason for your right to X is a constitutional equivalent of an appendix. 2 reflects a well worn anti-2d Am. argument.
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Old January 2, 2013, 06:32 PM   #28
rts99
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Blackstone

Blackstone's Commentaries on English Common Law are the basis of the rights of both Englishmen in the Colonies and Americans after the revolution. The Constitution, all our laws, our "rights", and separation of powers are highly influenced by Blackstone's Commentaries. Blackstone discusses the right to keep & bear arms as follows.....

"Another important source further illustrating this point is William Blackstone's Commentaries on the Laws of England, in which he explains the underlying purpose of the right to keep and bear arms as understood in the English common law.[25] According to Blackstone, [Page 209] the liberties of Englishmen are reducible into three principal rights: the right of personal security, the right of personal liberty, and the right of private property.[26] However, Blackstone asserted that any declaration of these rights would be meaningless "if the constitution had provided no other method to secure their actual enjoyment."[27]
The common law, therefore, developed barriers against infringement upon these rights.[28] According to Blackstone, whenever the government infringed upon any of the three principal rights, the people could employ certain auxiliary rights to ameliorate the problem.[29] First, the people had the right to apply to the court system for redress of injuries.[30] Second, the people had the right to "petition[] the king, or either house of parliament, for the redress of grievances."[31] However, if these branches of government failed to provide the necessary relief, then the people had the right of having and using arms for their defense and self-preservation "when the sanctions of society and laws are found insufficient to restrain the violence of oppression."[32]
According to Blackstone, English common law recognized the right to own guns as a way for an individual to protect himself and "the three great and primary rights"[33] in the face of an actual violation or attack by a tyrannical government.[34] In essence, under the common law, individual gun ownership is to serve as the final safeguard when the government fails to protect the rights of the people.[35]"
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Old January 2, 2013, 06:40 PM   #29
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2 Questions

1. Former Chairman Mao, of the People's Republic of Communist China, wrote in his Little Red Book of Communist Expressions that "All political power is derived from the barrel of a gun."

If our elected and appointed officials believe the above statement (& we all know that they do), then who holds the political power in the USA? The people? or government officials? How the courts rule on the right to keep and bear arms in public will determine who holds the power in this country. You aren't going to be happy with the answer.

2. If the right to keep & bear arms is an individual right then who can explain why the homeless are denied this right? (This is called prior restraint & is also unconstitutional.)
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Old January 2, 2013, 09:28 PM   #30
tipoc
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The way I understand it, a constitution frames a government, and a BOR declares principles of, or limits up, that government ...such that the USBOR was intended to bind only the federal government, that being the only government framed by the associated constitution.
The Bill of Rights limits the ability of the government both Federal and State from infringing on the rights of the people. To that end it clearly spells out some rights of the people. It does not grant any rights it places limits on what the government can do, Federal and state. The ninth amendment even states this quite clearly when it points out that the rights of the people are in no way limited to the rights discussed in the amendments.

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Old January 2, 2013, 09:35 PM   #31
RH
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Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

I ask who are the militia? They consist now of the whole people, except a few public officers.
---George Mason, 1788
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Old January 3, 2013, 01:58 PM   #32
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Well, if you were free, white and over 21 (and male). You could be foreign born with no problem--but not an Indian. So, you see, it wasn't everyone by a long shot.
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Old January 3, 2013, 03:21 PM   #33
carguychris
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Well, if you were free, white and over 21 (and male)... So, you see, it wasn't everyone by a long shot.
+1. The language in the Constitution and the BOR divides the American populace into three broad overlapping categories. The broadest category is "person(s)" or "the people", which refers to more or less everyone, or at least those who have not had rights taken away by due process of law. The next broadest category is "citizen(s)", which is most generally defined as the subset of "the people" who are allowed to vote. The Constitution further grants certain specific powers and/or duties to smaller subsets of the population or to certain individuals. "The militia" falls into this final category.

Rhetoric of certain founders notwithstanding, the language in the document strongly implies that the words "the militia" does NOT refer to everyone, but rather to a specific group of people. The composition of "the militia" is presumably to be determined by Congress or by the states.

The 2A maintains this linguistic distinction; the "militia" is to be well-regulated, but "the right of the people to keep and bear Arms shall not be infringed." Not the militia- the PEOPLE!
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If one argues solely along insurrectionist lines, they're not only scaring folks, they're missing the central argument of the RKBA.
^^^This.

At best, insurrectionist arguments implicitly support the collective rights or militia interpretation of the 2A, and supporters are prone to falling into a semantic and/or historical trap regarding the composition of the militia and what exactly it means to be "well-regulated."

At worst, insurrectionist arguments implicitly support anarchy. What good is representative government if unsanctioned private armed groups can use violence to oppose it, with unclear legal consequences?
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Last edited by carguychris; January 3, 2013 at 03:24 PM. Reason: minor reword...
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Old January 3, 2013, 05:27 PM   #34
Carry_24/7
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Drumroll..........most of the voting population doesn't care about most of this argument. They listen to talking points, cried as gunned-down babies were laid to rest, and have seen gun advocates mostly demonized on news talk shows.

Who is the militia? Only we seem to be asking that question....Houston, we have a problem!
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Old January 3, 2013, 05:52 PM   #35
carguychris
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Who is the militia? Only we seem to be asking that question...
Actually, I've seen several largely anti-gun op-ed pieces and blog posts that talk extensively about the militia. Their arguments generally take one of two routes:
  • The 2A only applies to the militia, and the militia today is the National Guard.
  • The 2A applies to the militia, and since everyone is part of the militia, ownership of arms should be "well-regulated," and *I* get to define what that means.
These writers seem unaware that the Heller decision basically throws the militia arguments to the wind. My point is that the insurrectionist argument should go with it.

"I should be able to own firearms because self-defense is a civil right" is a MUCH stronger argument that "I should be able to own firearms so I can one day participate in the violent overthrow of our representative government" (which is how the more vehement insurrectionist arguments sound to many uneducated observers).
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Last edited by carguychris; January 3, 2013 at 05:54 PM. Reason: minor reword...
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Old January 3, 2013, 06:20 PM   #36
Carry_24/7
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Carguychris; you are correct. My comment was mostly in frustration that "most" of the press and talk shows are quickly brushing by the academic argument in favor of more feelgood and shock talking points, as usual.

Whenever I discuss this with others, antis and advocates, I try to avoid the militia subject, as it often raises eyebrows in the wrong way. To average Joe, it often does not matter if its in the constitution...especially if it does not "sound right" to them. Like it or not, that's the gospel.
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Old January 4, 2013, 03:03 AM   #37
tipoc
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James Madison of Virginia (an original signer of the Constitution and the fourth President) is generally credited as being the "father" of the Bill of Rights. These rights include the 2nd. The state constitution of his state had the following in it on this matter...

"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."

The right to bear arms was not dependent on being in a militia.

When the Bill of rights was adopted there was a good deal of concern about the potential threat that a standing professional army in the hands of a demagogue might pose. There was good reason for this concern. No one else had declared a separate Republic without a monarch before and filibusters and would be Emperors were fairly common. So the militias were thought of as a potential counterweight to that. When Coxe, Mason and others spoke of "the whole people" rising up it was with this in mind and not as a revolt of the people against a responsive and democratic government. There was concern that the states had neglected the militias as well. Nothing in the Constitution or Amendments to it made the rebellion of the Confederate States 60 or so years later legal.

Americans had a dismal view of large standing armies and were critical of the British use of such against them.

The English had attempted to disarm the people of Boston. One of the incidents that touched off the fighting of the revolution were British efforts to seize arms and ammunition in Lexington, Mass and Williamsburg, Va.

But long before the revolution the British colonists (Americans) considered that they enjoyed the British right to have personal arms. This wasn't a right that we held as persons and could not be taken away.

As we know the government at the time did deprive slaves, Indians, indentured servants, etc. from keeping personal arms. But the same made every effort to get them when they could.

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Old January 4, 2013, 09:33 AM   #38
Hugh Damright
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James Madison of Virginia (an original signer of the Constitution and the fourth President) is generally credited as being the "father" of the Bill of Rights. These rights include the 2nd. The state constitution of his state had the following in it on this matter...

"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."
Let's not rewrite history. The 1776 Virginia Declaration of Rights did not declare that the right of the people to keep and bear arms shall not be infringed, it said:

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense 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 be governed by, the civil power".


Quote:
Blackstone discusses the right to keep & bear arms as follows..... "individual gun ownership is to serve as the final safeguard when the government fails to protect the rights of the people."
Blackstone also said that "To prevent the executive power from being able to oppress ... it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new-modelled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. ".
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Old January 4, 2013, 03:15 PM   #39
tipoc
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I did not "rewrite history" but I was unclear. Madison proposed the wording I quoted above (from Levy's book "Origins of the Bill of Rights" page 144-45) as the original draft of his proposal for what became the 2nd Amendment.

But again, to be clear, the 2nd amendment did two things; it guaranteed the people an individual right to arms and it prevented the Federal government from unilaterally dissolving the state controlled militias. I pointed out earlier that the militias were under the command of the President and or Congress when called into national service. They were under the command of the states otherwise who were charged with appointing their officers, etc. The state militias were considered a counterweight to a professional standing Federal army in the debates of the time.

The constitution as a whole assumes an individual right to be armed as well as stating it in the 2nd. It also assumes boundaries on it as on all others.

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