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January 2, 2013, 05:54 PM | #26 | |||
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January 2, 2013, 06:10 PM | #27 | |
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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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January 2, 2013, 06:32 PM | #28 |
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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]" |
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.) |
January 2, 2013, 09:28 PM | #30 | |
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January 2, 2013, 09:35 PM | #31 |
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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 |
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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January 3, 2013, 03:21 PM | #33 | ||
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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! Quote:
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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"Smokey, this is not 'Nam. This is bowling. There are rules... MARK IT ZERO!!" - Walter Sobchak Last edited by carguychris; January 3, 2013 at 03:24 PM. Reason: minor reword... |
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January 3, 2013, 05:27 PM | #34 |
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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! |
January 3, 2013, 05:52 PM | #35 | |
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"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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"Smokey, this is not 'Nam. This is bowling. There are rules... MARK IT ZERO!!" - Walter Sobchak Last edited by carguychris; January 3, 2013 at 05:54 PM. Reason: minor reword... |
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January 3, 2013, 06:20 PM | #36 |
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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. |
January 4, 2013, 03:03 AM | #37 |
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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. tipoc |
January 4, 2013, 09:33 AM | #38 | ||
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"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:
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January 4, 2013, 03:15 PM | #39 |
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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. tipoc |
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