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Old November 23, 2008, 12:45 PM   #1
Wildalaska
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George Will's View on the 2nd and Heller

Reinventing the Second Amendment
By George Will

WASHINGTON -- Of conservatives' few victories this year, the most cherished came when the Supreme Court, in District of Columbia v. Heller, held for the first time that the Second Amendment protects an individual right to bear arms. Now, however, a distinguished conservative jurist argues that the court's ruling was mistaken and had the principal flaws of Roe v. Wade, the 1973 abortion ruling that conservatives execrate as judicial overreaching. Both rulings, says J. Harvie Wilkinson, suddenly recognized a judicially enforceable right grounded in "an ambiguous constitutional text."

Writing for the Virginia Law Review, Judge Wilkinson of the 4th U.S. Circuit Court of Appeals says Heller, like Roe, was disrespectful of legislative judgments, has hurled courts into a political thicket of fine-tuning policy in interminable litigation, and traduced federalism. Furthermore, Heller exposed "originalism" -- the doctrine that the Constitution's text means precisely what those who wrote its words meant by them -- as no barrier to "judicial subjectivity."

The Second Amendment says: "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." Until June, the question was: Is the right guaranteed to individuals and unconnected with military service, or only to states as they exercise their right to maintain militias? The court held, 5-4, for the former view.

In Roe, the court said the 14th Amendment guarantee of "due process" implies a general right of privacy, within which lurks a hitherto unnoticed abortion right that, although "fundamental," the Framers never mentioned. And this right somehow contains the trimester scheme of abortion regulations.

Since 1973, the court has been entangled in the legislative function of adumbrating an abortion code, the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

Conservatives are correct: The court, having asserted a right on which the Constitution is silent, has been writing rules that are detailed, debatable, inescapably arbitrary and irreducibly political. But now, Wilkinson says, conservatives are delighted that Heller has put the court on a similar path.

In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated that there are powerful, detailed, historically grounded "originalist" arguments for opposite understandings of what the Framers intended with that right to "keep and bear arms."

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with domestic violence records) who may own guns? On the number of gun purchases in a month?

Judicial conservatism requires judges to justify their decisions with reference to several restraining principles, including deference to the democratic branches of government, and to states' responsibilities under federalism. But, Wilkinson writes, Heller proves that when the only principle is originalism, and when conscientious people come to different conclusions about the Framers' intentions, originalist judges must resolve the conflict by voting their policy preferences.

It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side -- the legislature.

When rights are unambiguously enumerated, courts should protect them vigorously. But Wilkinson says that when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments -- particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.

Roe and Heller, says Wilkinson, diminish liberty by "handing our democratic destiny to the courts." Many libertarian conservatives disagree, arguing that the protection of individual liberty requires robust judicial circumscription of democracy.

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.


So? Is he making a valid point or points?

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Old November 23, 2008, 02:38 PM   #2
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I think incorrect. He refers to the RKBA as a "newfound individual right." In that he is mistaken.

Until 1934, people owned whatever arms they could afford, including warships, automatic weapons, and artillery- the very latest and most powerful military weaponry of the day.

Until 1968, felons were not prohibited from owning weapons, and ordering firearms by mail and in the corner hardware was common.

From 1934 to 1986, it was legal to manufacture machine guns for citizen purchase, as long as the tax (a high one) was paid.

The collectivist view is the new (and I believe incorrect) view.
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Old November 23, 2008, 02:40 PM   #3
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I saw that and responded:

Poppycock. Dissenting opinions notwithstanding, all the justices agreed that the 2nd protects (not confers) an individual right. Any cursory reading of the decision confirms this. The minority simply felt that, individual right or not, government was free to eviscerate the right as in the D.C. ban. The comparison to Roe v Wade is preposterous.
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Old November 23, 2008, 03:35 PM   #4
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Judge Wilkinson of the 4th U.S. Circuit Court of Appeals says Heller, like Roe, was disrespectful of legislative judgments
A judge that doesn't understand the concept of checks and balances, yet he sits on the Court of Appeals. It is the duty of the Supreme Court to strike down any law that is a violation of any Constitutional Right. Unlike Roe v. Wade, which did not have a clear and literal protection mentioned in the Bill of Rights, the Constitution, or any Federalist Papers, Heller does have a very specific right named in the 2nd Amendment.
It sounds like sour grapes from a liberal, activist type of judge who now cannot tread on our RKBA.

Just another example of the liars that will say anything because they believe that they know what is best for us commoners.
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Old November 23, 2008, 03:37 PM   #5
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Back on Oct 21st, the New York Times had an article, Ruling on Guns Elicits Rebuke From the Right, that included both what Judge J. Harvie Wilkinson wrote, Of Guns, Abortions, and the Unraveling Rule of Law, and what Judge Richard A. Posner wrote, In Defense of Looseness.

In Judge Wilkinson's draft paper he uses Roe v Wade and juxtaposes Heller as two cases made from the same cloth.

That is, just as the right to abortion was made out of thin air, so was the individual right to own a gun outside any context of militia service or duty.

Only twice, at the beginning, does the Judge refer to the second amendment itself, and only then as being ambiguous, and in the second instance, towards the end, by applying the 14th to force incorporation, thus abandoning the principles of Federalism.

It could be argued that such abandonment followed the enactment of the 14th and changed the entire nature of the central government as regards fundamental rights. Judge Wilkinson does not reach to that argument.

Essentially, Judge Wilkinson says that, "the Court should honor the structure of our constitution, stay out of the thicket, and leave the highly motivated contestants in this field to press their agendas in the political process where the issue properly belongs and where for centuries it has remained."

Throughout his paper, Wilkinson sets up straw-men, which he neatly knocks down.

What the Judge avoids, is how the courts are to adjudicate violations of other liberties, such as Free Speech, if the court stays out of these contentious "thickets" and allows the legislative process to be the only means of redress. For what purpose then, does Marbury stand as precedent?

The Judge worries that all gun laws are now suspect, because the Court held to the plain meaning of the amendment. This is what second amendment proponents have said all along, why should this come as a shock? It is a shock, only because for the first time in US judicial history, the second amendment of the Bill of Rights has actually been looked at, considered and determined to be a right, as are the other Liberties in the BOR.

Overall, I find Judge Wilkinson's reasonings to be weak and wholly contrived, as were those same arguments made by those who oppose the right.

Judge Posner states, "Scalia's entire analysis rests on this interpretive method, which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions."

Which simply means he doesn't agree with the Original textual meaning method that the Court used to arrive at their decision. Big whooping deal. Posner doesn't agree that the Constitution (and its amendments) mean what they meant to the people at that time who wrote and ratified them.

Posner's method of "original intent" is nothing more than strict constructionalism. This is merely one method of about three, loosely termed "originalism," that I'm aware of. It neither means his method is correct and that others are incorrect, it simply means he doesn't agree with the Court.

Personally, I agree (with Judge Posner) that Scalia is a "fair weather" originalist. He appears to decide cases in an altogether expedient (for him) manner. Particularly when prior precedent may be at stake, Scalia is generally opposed to making the correct choice. But...

The Heller decision had no prior precedent. The Second Amendment is a virtual blank slate upon which the Court has finally begun to write something. Original textual meaning is exactly where one should begin to determine its meaning. Not what we think it means today. Where there is existing precedent, the matter may certainly be different.

The NYT article, pointed to above, uses a altogether familiar analogy that has been used by the anti-gun faction for years: "For much of the 20th century, the conventional view of the amendment had been that it only protects a collective right." A wholly contrived interpretation of the Miller Court (1939), and most certainly not "most" of the 20th century let alone "much," especially as the one quotation used, immediately after the preceeding statement, was by Warren Burger in 1986. Sloppy journalism, that.

The article does admit, to an extent, that even liberal law professors (and 3 of the most prominent) view the decision as the correct decision. What the article fails to mention is that the majority of law professors and historians all agree that the amendment does in fact confer a protection on a pre-existing right. The various amici briefs support my contention, when one reads the list of "who's who," on both sides of the question.
-------

The article by George Will relies mostly upon Judge Wilkinson's paper. As such, he is also comparing apples to oranges. He has been wrong before, and it appears, to this commentator, that he is wrong again.

Judge Wilkinson, Judge Posner and the NYT are simply crying "sour grapes" because their pet theories of interpretation were not used. Now we may add the name of George Will to that list.
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Old November 23, 2008, 05:22 PM   #6
maestro pistolero
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An insightful analysis as usual, Al. Thanks
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Old November 24, 2008, 11:51 AM   #7
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Unsuprising

Why would we think George Will would have any idea what the 2nd means? He is the epitome of country club republicanism. He is one of many Republicans who seem to get confused by the plain text of the Constitution and the Bill of Rights. His op eds tend to be in my opinion little more than center right populism, he definitely doesn't seem to be big on inalienable rights or original intent.
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Old November 24, 2008, 12:42 PM   #8
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As witness the statements of our President-Elect, this is a helpful parallel. Thus Obama on 5 December 2007:
Quote:
There's a Supreme Court case that's going to be decided fairly soon about what the Second Amendment means. I taught Constitutional Law for 10 years, so I've got my opinion. And my opinion is that the Second Amendment is probably--it is an individual right and not just a right of the militia. That's what I expect the Supreme Court to rule. I think that's a fair reading of the text of the Constitution. And so I respect the right of lawful gun owners to hunt, fish, protect their families. Like all rights, though, they are constrained and bound by the needs of the community.
More guardedly, here is Obama on 15 February 2008:
Quote:
There’s been a longstanding argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation.
On the other hand, this antithesis came out on 15 October 2008, in reference to Roe v. Wade:
Quote:
I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.
So there you have it. According to Barack Hussein Obama, all our Constitutional rights are constrained and bound by the needs of the community, while most of them are subject to common-sense regulation, even though many of them shouldn't be subject to popular vote. Anyone who can make heads or tails of it, is a better man that I am.

More on this here.
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Old November 24, 2008, 12:57 PM   #9
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Roe & Heller

Apples & Oranges

RTKB is clearly stated in the COTUS. Abortion whether you agree with it or not ISN'T. Stating the 5 justices got it wrong when they agreed the "right of the people to keep and bear arms shall not be infringed" means that there is an individual right of people to keep and bear firearms is asinine.
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Old November 24, 2008, 12:58 PM   #10
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Oh, and this is just proof that being Republican does not make you by default a supporter of the COTUS. Plenty of Republicans are as happy to trample the COTUS just like plenty of Dems so long as they are the ones gaining the power.
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Old November 24, 2008, 01:49 PM   #11
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Anyone who can make heads or tails of it, is a better man that I am.
Hypocrisy?

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Old November 24, 2008, 02:04 PM   #12
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Unlike Roe v. Wade, which did not have a clear and literal protection mentioned in the Bill of Rights, the Constitution, or any Federalist Papers, Heller does have a very specific right named in the 2nd Amendment.
It sounds like sour grapes from a liberal, activist type of judge who now cannot tread on our RKBA.
There's another way to look at this all, via the lens that is the 10th Amendment.

2A/RKBA/Heller is expressly mentioned and worded in our Bill of Rights.

Abortion is neither proscribed nor endorsed in those same founding documents. I'm not aware of what 1960's legislative regulations might have curtailed abortion rights or the context of Roe v. Wade...

But the 10th is pretty clear that anything we haven't expressly given to the FedGov is our own to claim, or for an individual State to claim.

Since there was no law made by "us" expressly volunteering to give up a right to abortion, we the people evidently retain that right by a default reading of the 10th (moral arguments about infanticide belong in an entirely different train of thought and have no relevance... Roe V. Wade could have been about eating Jell-O in public and have the same relevance to 10th Amendment rights).

But... the 2A is expressly worded and as such it is potentially read-able that a voluntary ceding of rights could have been contained in those words.

We needed a SCOTUS ruling to determine if We The People decided to cede certain firearms related rights when we ratified the Constitution and the BoR.

Evidently we didn't, which is a good decision.

I do think the OP Article's premise is unsound though in light of that.
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Old November 24, 2008, 02:16 PM   #13
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Quote:
Quote:
Anyone who can make heads or tails of it, is a better man that I am.
Hypocrisy?
I'd call it pandering.
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Old November 24, 2008, 02:43 PM   #14
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I'd call it pandering.
Thats why you are better than me

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Old November 24, 2008, 02:47 PM   #15
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Quote:
I'd call it pandering.
Thats why you are better than me
Not at all.
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Old November 24, 2008, 07:07 PM   #16
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But, Wilkinson writes, Heller proves that when the only principle is originalism, and when conscientious people come to different conclusions about the Framers' intentions, originalist judges must resolve the conflict by voting their policy preferences.
Here I think he has a point and is my problem with originalism, that is, context. Maybe I am relying too much on my studies of history but almost unfailingly many will look at certain times in the past and try to equate them to current time. Most often analogies are incorrect and out of context. Hence the problem I have understanding for instance, the militia in today's context. There is absolutely nothing at all like the militia of 1789 today and in fact I argue that it no longer exists in most every state except possibly on paper.

Here is a good quote concerning problems with originalism:
Quote:
Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries' distance; and whether the framers themselves would have supported original intent
-W. Serwetman, Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence
Al, I remember you posted another critique about originalism as well but can't remember who from.

My bottomline is that I see originalism as an attempt to go back into the past and figure out what everybody thought about a question they could probably never foresee. I don't see how you can make judicial decisions today without taking into account the current times and relevance.

I support Heller in part because I think individuals right to bear arms today has it's relevancy in personal self defense and not in any militia context.
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Old November 24, 2008, 07:28 PM   #17
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I support Heller in part because I think individuals right to bear arms today has it's relevancy in personal self defense and not in any militia context.
Isn't a militia, at it's most basic level, just a well armed citizenry taking responsibility for it's own personal defense?

Isn't that well armed citizenry necessary to avoid the need for a police state to guarantee security for the state?

Isn' t this exactly what the founders had in mind?

Doesn't liberty increase as a result if the law abiding among us taking some of the responsibility for our own security? Why should their means to accomplish that end be infringed, for example, by banning semi-auto rifles that take detachable magazines?

And doesn't the spirit of the militia survive as a means for check and balance?
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Old November 24, 2008, 10:36 PM   #18
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Isn't a militia, at it's most basic level, just a well armed citizenry taking responsibility for it's own personal defense?
No, according to statute today and within the historical context a militia is an organized military force of citizens called up who answer to a competent elected authority.

Quote:
Isn't that well armed citizenry necessary to avoid the need for a police state to guarantee security for the state?
Isn' t this exactly what the founders had in mind?
I think the founders feared a large standing army (which we have today) which is why they wanted the states to have a militia but today all that has changed and we no longer have that model. The Militia Act of 1903 did away with the state militias and they became the organized militia which is the National Guard. The unorganized militia is just a pool of eligible citizens from which the organized militia draws it's members.

Quote:
Doesn't liberty increase as a result if the law abiding among us taking some of the responsibility for our own security? Why should their means to accomplish that end be infringed, for example, by banning semi-auto rifles that take detachable magazines?
I have no problem with that statement but that is not the militia. I do not think an armed citizenry in the USA insure liberty but rather the democratic institutions we have created does this.

Quote:
And doesn't the spirit of the militia survive as a means for check and balance?
I don't think there is such a thing as the "spirit" of the militia. I think the militia was once a way to insure community security in a time where there was no large standing army, National guard or professional police force or immature democratic institutions. It no longer is in existence in any meaningful way.
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Old November 24, 2008, 11:46 PM   #19
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Here I think he has a point and is my problem with originalism, that is, context.
All life is context.

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Old November 24, 2008, 11:58 PM   #20
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Originally Posted by Tennessee Gentleman
Al, I remember you posted another critique about originalism as well but can't remember who from.
I've probably made several comments or critiques on "originalism" in the past few years. Without some context, I'm at a loss as to which one you're thinking of.

Regardless, there are a couple different forms of "originalism" that people talk about. The one that I adhere to is termed Original Textual Meaning. That is something we can know: What the words meant at the time they were written.

Take the word "militia" for example. We can take the etymological view: 1590, "system of military discipline," from L. militia "military service, warfare," from miles "soldier" (see military). Sense of "citizen army" (as distinct from professional soldiers) is first recorded 1696, perhaps from Fr. milice. In U.S. history, "the whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not" (1777).

The ARTFL Project contains the full unabridged dictionaries for the 2 definitions below:

From the Webster's 1828 dictionary: The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and brigades,with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.

From the Webster's 1911 dictionary: 1. In the widest sense, the whole military force of a nation, including both those engaged in military service as a business, and those competent and available for such service; specifically, the body of citizens enrolled for military instruction and discipline, but not subject to be called into actual service except in emergencies.
The king's captains and soldiers fight his battles, and yet... the power of the militia is he. Jer. Taylor.
2. Military service; warfare. [Obs.] Baxter.



Using these devices, then using the writings of the time, we can know, beyond a reasonable doubt, what the words and phrases meant to the people at the time of their writing.
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Old November 25, 2008, 04:16 AM   #21
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I don't think there is such a thing as the "spirit" of the militia. I think the militia was once a way to insure community security in a time where there was no large standing army, National guard or professional police force or immature democratic institutions. It no longer is in existence in any meaningful way.
Despite all the contextual changes that we've had in our society for the past 200 or so years, I'm not sure that human nature has changed all that much. It seems to me that the founders had a fairly good understanding of human nature by including this amendment.

I read somewhere once that one of the most powerful ways to inspire and motivate someone to do good, is to trust them. I cannot help but think that the second amendment has served that idea. It seems the less we trust folks, the less trustworthy they become; it's not always the other way around.

Rather than pronouncing the militia extinct due to contextual changes in society, I would like to see us striving to find and embrace ways in which this amendment, including it's militia clause still fits and benefits us by contributing to our security, safety, liberty, honor, and dignity.

I thank tennessee gentleman, antipitas and others for their thoughtful and insightful responses.

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Old November 25, 2008, 04:06 PM   #22
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Just a final reference. Although I disagree to a great degree with him, nevertheless Jon Roland has written extensively about this issue. You might find this: http://www.constitution.org/cs_defen.htm interesting. Smart man and has apparently done a good bit of research.
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Old November 30, 2008, 12:46 PM   #23
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Originally Posted by TN Gent
I do not think an armed citizenry in the USA insure liberty but rather the democratic institutions we have created does this.
That's true until there is a serious problem, such as created by a natural disaster or videotaped police beating and subsequent court ruling. When things go horribly wrong and the cops can't or won't get there, armed citizens have discouraged and prevented crimes.
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Old November 30, 2008, 02:19 PM   #24
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That's true until there is a serious problem, such as created by a natural disaster or videotaped police beating and subsequent court ruling. When things go horribly wrong and the cops can't or won't get there, armed citizens have discouraged and prevented crimes.
People forget this fact so easily, because most of our lives are spent in such ease, and order prevails in this country for so much of the time. With the financial and other challenges this country is facing, we may not always be blessed with such stable conditions. One point of an armed citizenry is for the good folks to retain control when the SHTF.

Think of what a relatively minor incident Rodney King was, on the scale of world events. That is a lesson we best not forget, Police were helpless to respond to calls. We were on our own in a matter of hours. Retaining the capability to defend ourselves and our communities is where I think the SPIRIT of the militia survives in modern times.
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Old December 1, 2008, 12:22 AM   #25
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When things go horribly wrong and the cops can't or won't get there, armed citizens have discouraged and prevented crimes.
Publius, I agree with your statement. What I was talking about was protection against a tryannical government. Sorry if that wasn't clear.
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