Bugfatty300
Buddha Squirrel
Read on post 135 how US code defines the militia.
Small arms suitable for military use.
"The people" is fairly obvious. The general populace of the US.
The Definitive U.S. 2nd Amendment Debate Thread
- Thread starter Che Guava
- Start date
Read on post 135 how US code defines the militia.
Small arms suitable for military use.
"The people" is fairly obvious. The general populace of the US.
Che Guava
The Juicy Revolutionary
Fait enough
If the state, federal and municipal goverments are responsible to the populace and act as thier proxy, are they not 'the people'?
Bugfatty300
Buddha Squirrel
Of course they are. Idealy, the government is the people and people are the government. There should be no distinction. But there is no danger of the government being disarmed is there? Even senators can to carry guns in the US capitol and DC. Something a "normal" person will never be able to do.
Che Guava
The Juicy Revolutionary
Then doesn't federerlization ensure that force (arms) are never ends up in just one segment of society? If there are three levels of government, isn't at least one of them going to be representing the people?
ok, to bed with me now, but I'll check in tomorrow!
Bugfatty300
Buddha Squirrel
The 2nd Amendment covers ALL segments of society. What segment are you talking about?
There is no segment of American society forbidden to keep and bear arms other than convicted felons.
Are you woried that American felons are disadvantaged because they can't revolt with out guns like everyone else?
Again, I'm not sure what you mean. All levels of government represent the people.
Fugitive Sisyphus
Escape Artist
I understand it when people want bans on 'bad weapons' such as tanks, surface to air missiles, AK-47s, etc. but this seems useless to me. We don't have any public problem with these weapons that needs laws to fix. And if a crazy (and extremely rich) person went on a rampage with an Abrams Tank I am sure our present laws would suffice to bring said person to justice.
This gets a big duh.
If you're gonna post the Ashcroft report as real support for your position then you're in worse trouble than I thought.Not quite.
Its a district court decision and, as such, applies to that district until it is cited in other districts OR upheld at the SC.
And, I thought that's why we're here now, talking? Because this decisions was a shock to many people on both sides because of, until now, the general consensus of legal precedent defining 2A as a collective right and limiting it for state regulation (which this decision may not undue since DC is not a state) and for "well regulated" (ie national guard) militias.
So, the good thing is that if it goes to the SC we'll get something definitive. I can live with the decision, however it goes. Can you?
CaptainF
The Professional Poster
To rebel against the brits at the time, but also as a check to government power.
Absolutely not.
Chaos. A lot of pissed off people...with guns.
Militias are cool, but who/what would they serve?
I'd more so trust the people with guns to fight insurgency style.
Other than that, I support guns for just about every other use. Self-defense, sport, you name it.
Nope. The Constitution is clear. I have a right to guns, period. IF the courts botch the interpretation of such an easily understood passage of the Constitution, that's their problem. I'm keeping my guns. The only way I'd accept losing them is of we actually amend the Constitution to nullify the 2nd Amendment.
Given FF concerns about standing armies being dangerous to a state and the obvious attention paid to prevent the government from impeding on the People's freedoms, I think the 2A is at least as much about tyranny as about civil defense. It is in the middle of the Bill of Rights where individual freedoms and checks on state and federal government actions (once you factor incorporation, or assume as I do that the FFs intended the BoR to apply to the state governments as well) are spelled out, how can it not be inferred to be about tyranny?
I agree that the 2A is not about hunting or sport.
Are you trying to say that "the people" has a different meaning in the 2A than it does in the 1st, 4th, and 5th?
And yes, I would say that "a free state" has a different meaning than the other 100-some uses in the rest of the constitution where they're referring to "the states", "every state", "each state", "any particular state", etc.
And "keep arms"?
And therein lies the rub. There's really been only one relatively recent SCOTUS case dealing directly with the 2A (Miller), and in that one the defendant and his lawyers didn't even show up. The case got remanded back down and (because one defendant died and the other took a plea) disappeared.
And as the Bill of Rights has largely been incorporated as a result of cases reaching SCOTUS, yes - mostly in the 1960s. Miller aside, SCOTUS hasn't had any vehicles for incorporating the 2A this century (the two other significant cases being in the late 1800s before incorporation started).
----
As you've already said, the 2A isn't about hunting or sport. If the 2A gets truly nerfed at the federal and state levels, it is still not about hunting or sport. A compromise allowing hunting/sporting weapons won't be permitted by the folks (like the Brady Campaign) seeking to ban all firearms, and IMHO rightly so - if worthy purposes like defense against enemies foreign and domestic and personal defense are not allowed, why keep the avenue for criminals to get guns open by permitting hunting and sporting weapons? The tolerance level for collateral damage due to people enjoying sports is going to be extremely low compared to the tolerance level for collateral damage due to people keeping the tools for defending themselves. If (say) hockey was found to increase inner-city deaths from puck homicides, you think it wouldn't be gone in a heartbeat?
I certainly enjoy target shooting, and have no beef with hunters, but don't bother amending the constitution for either one. If you're presupposing a ban, better for all concerned that it is an effective ban.
Che Guava
The Juicy Revolutionary
The 2nd Amendment covers ALL segments of society. What segment are you talking about?
There is no segment of American society forbidden to keep and bear arms other than convicted felons.
Are you woried that American felons are disadvantaged because they can't revolt with out guns like everyone else?
Who was it that sai "in an unjust society, the just people can be found in prison" (or something to that effect..?) Does anyone who takes up arms against the governmetn automatically beome a felon (once tried and convited of course)?
This is what I'm saying: if the government represents, is responsible to, and is comprised of "the people", then why do we worry if 'they' have the guns instead of 'we, the people'. Even in the event of corruption of a goverment, don't checks and balances, as well as having multiple goverments (state, fed, mun), ensure that 'the people' are in power?
You're not taking into account a certain logic thread. If you consider the 2A to be a defense against tyranny, then the defeat of the 2A is simply evidence of the tyranny's work. At that point, the assumption isn't that you've left the law-abiding, it is that the law-abiding have left you. Make sense?
If the First Amendment got annulled via legal process (say, USAPATRIOT III was upheld by the Alito Court in all its particulars), would you be amped about the "rule of law"?
SCOTUS gave us Dred Scott. SCOTUS gave us Plessey. SCOTUS gave us Kelo. I don't necessarily take SCOTUS decisions as anything but penultimate constitutional interpretations that I'm legally bound to follow. Maybe I'm just missing the "law and order" rabidity with which you're labelling the fringe pro-gun loonies.
Che Guava
The Juicy Revolutionary
True, but only if you consider overuling the second amendment as a complete break with the social contract guruanteed o american citizens and/or a violation of human rights (albeit in the american context). There have been some rights (1st amendment, but of course you can, and did debate that) that I think government and the legal system have deemed too important to infringe apon to protect the state or society at large. Does the second amendment fall into that catagory? More simply put, is it still America without the 2nd amendment written and enforced?
Glad to hear it
You know what sucks? When you have a massive reply all typed up and your browser crashes. 
If I summon the will to re-write it, I'm doing it in word first.
edit: weird, must have been some strange refresh because the computer gods somehow saved what I'd typed.
If I summon the will to re-write it, I'm doing it in word first.
edit: weird, must have been some strange refresh because the computer gods somehow saved what I'd typed.
Actually its not clear at all. That's the problem. Both sides are operating on a lot of assumptions but w/ precious little history of jurisprudence.
I realize that. I'm simply saying that the 2A doesn't specifically address tyranny. Tyranny is addressed in some of the Federalist Papers and I think, in the main, they address what you're saying.
I have a lot of respect for you and your views even though we disagree on a lot here. But I will tell you this very sincerely that the intent of the FF's in the BoR was NOT to set aside rights for individuals. Rather, simply to prevent Fed interference with certain rights. NOTHING prohibited the states from legislating free speech. You'll notice that the 1st amend says "Congress shall make no law". It says nothing about the states limiting these things (and they did).
The 14th Amendment changed this (although not immediately). Essentially, saying that some rights were supreme at the federal level, meaning the states have no right to interfere. However, it wasn't a blanket addition of all rights. Thus, we have incorporation where rights have been selectively added to this consideration of being supreme. That said, most states didn't run willy-nilly all over freedom of speech, etc... (unless you were black or a woman), it just means they could have. In fact most states protected these rights to varying degrees, esp. for white men.
For better or worse, the 2A has not been so added. If you recall we've had a couple conversations where we've discussed why states, cities, etc... can pass all these laws regulating firearms. Well, its because of lack of incorporation. States still have the right to regulate guns to their hearts content. So, you can disagree all you like, but this is not opinion, its fact as evidenced by the various restrictions by cities, states, etc... on guns.
Now, obviously, this recent case may change that. TBH, I'd like to see the SC give a definitive ruling. I think they may wuss out on the technicality that this is just DC and somehow avoid the issue of incorporation, since DC is a federal district.
Actually the 5th (and 6th) don't say "the people". So, we're talking about the 1st, 2nd, and 4th. Also, don't forget things like the preamble.
Your point made me go back and re-read regarding this phrase. And, in so doing, I agree that I was wrong in what I said, though, I don't think you're necessarily right, either. I need a better source, but it seems that "the people" doesn't mean so much a collective people (although it can, ala the preamble) but a class of people who are not necessarily citizens. TBH, I don't know what this means vis-a-vis individuals. I do know its confusing w/out either a better understanding of legal jargon OR better source materials.
So, in the preamble "the people" is almost a collective sense. But, in the 4th Amend its hard to not see it as something that the fed is prevented from doing to individuals (remember states were fair game for making rules). Specifically in regards to the 2A when you read the federalist paper comments its hard to get a sense of the purpose here.
In the end, again, its confusing. The only people who its not confusing to are people who want to bend these antique words to their modern agendas/needs.
Yeah, "State" (odd that its capitalized) is another one where you have to take into account the meaning of the time.
Good point. Certainly this would weaken the traditional use of the idea "bear arms" essentially meaning a broader, organized militia. But, tbh, its essentially says that, obviously, to "bear arms" (put a force in the field) you have to have arms somewhere to start.
See, I really think that's the problem. There's so little case history and its such a football that some of the larger issues are completely unsettled. I'd also bet that's why both sides are afraid of it going to the SC.
See previous comment about cowardice on both sides. I honestly think that this is because the pro-gun side can see the sum of what I've been arguing about militias = National guard, collective rights, etc.... and doesn't want to risk it.
I see your point. I'll address this at the end.
Oh, I agree that if the 1A got nerfed people would have a **** storm. The difference is I don't see them killing people over it. There is no 1A equivalent of the "Cold dead hands" attitude. As I'm sure you've met people like this you full well know there are people with arsenals who are essentially looking for an excuse to use them.
I imagine of the 1A got nerfed you'd have tons of civil disobedience followed by the reigning party being chucked and an amendment quickly being passed.
Per prior quote. I simply think the fringe of the pro-gun movement is much more dangerous than the fringe of other groups. Many are just looking for an excuse to use them.
----
----
If I can exit from the hardcore Xs and Os of the debate, let me give you my pragmatic viewpoint of this whole thing. Be patient.
Much of what the FF's did were in direct reaction to their recent experiences under the British crown and Parliamentary rule. In fact, if you read the Declaration of Independence its a laundry list of their gripes. So, when they created the Constitution and the Bill of Rights, a lot of what they came up with was based on these recent experiences, in addtion, of course, to the influence of political philosophers such as Locke and Montesquieu.
The BoR was written as an inducement to the states to support the Constitution. Thus, the BoR are reserved for states to regulate, but off hands for the Fed.
One of the areas where the US tried to learn a lesson from Europe was in the area of standing armies. This may come as a surprise given our modern propensity for firepower, but the US in 1790 desired to have an extremely small standing army. Standing armies were seen as extensions of the monarch and, as such, potential tools for oppression. Given the coincidental lack of adjacent enemies, there was less need for a sizeable armed force.
Here is where the militia would fit in. In times of war from 1812 through the Civil War when the US govt needed a larger army, one tool it had was to summon state militias. So, the militia had this vital role of, essentially, being the de facto army. The problem was that these militias were hardly uniform. Officer appointments were typically political in nature, etc...
Also, the militia was formalized in ~1903 into the state national guard system. yes, there's the provision about the "unorganized" militia for men aged 18-45. But I have 2 thoughts there: 1. Its specified as "unorganized". This stands in contrast to the 2A's command regarding a "well organized" militia. The SNG would be that well organized body. 2. I think that the "unorganized" militia is a fancy way of saying you can be drafted.
Now, the other argument for the militia is that it would protect the citizenry from native tyranny... from their own government. Oddly, this is more of a Jacksonian view (1830s) than one of the FFs. Hamilton, in fact, felt the govt. had more to fear from the citizenry. But, whatever. As it has evolved there's a belief that the 2A somehow protects us from the govt taking away our rights and/or that its necessary for the citizenry to rise up if need be.
However, speaking pragmatically and from recent history, I don't think these are inherently true. There have been many times when the govt. had restricted key rights (typically, but not always, in times of war) and we've yet to see an uprising in protest. Well, I can think of 2 exceptions. One would be the Whiskey Rebellion in 1794 where farmers in Western PA were upset about a tax on whiskey. What happened? The govt. called out the militia (nice irony) and supressed it without firing a shot. Another would be John Brown's raid on Harper's Ferry. Although a bit more violent, he got nowhere.
Are there any modern examples? Would Waco or Ruby Ridge qualify? We may think they're nuts, but they damn well thought they were patriots, defending their rights. Either way, they didn't get too far, did they?
Which brings me to another interesting point. All this rhetoric about "defending against tyranny", we speak like we'll have some absolute way of knowing "ok, this is the thing we all need to rise up against". When, in reality, one man's tyranny is another man's civil rights. My point is, I doubt there'd ever be this big unifying "issue" that would cause millions of American's to get out their guns and overthrow the govt.
Lastly, you could argue the CW qualifies, but its way to complex to try and digest here, but, if people want to go over it in this context I will, just not in this post.
Now, if we come to the present, I find that from a practical standpoint that idea that the US citizens could somehow rise up and violently overthrow a corruprt/tyrannical US govt to be laughable. Modern arms are too powerful. And modern history shows us that well armed citizenries were not able to overthrow unpopular govts. (albeit in 3rd world countries). And, almost succesful revolutions in western or near-western countries have been accomplished without largescale bloodshed by populaces that were not significantly armed.
So: there is no citizen or public militia. There's no need for one from a standpoint of national defense. And, there's no realistic hope that if one did exist it could or would throw off a tyrannical govt.
Hence, legal or not, there is no defacto need for a militia vis-a-vis the 2A. Just like the 3rd Amendment (no quartering), its obsolete, its unworkable in the 21st century.
So, sans a need to defend vs. tyranny or invasion, and given that the 2nd part of the 2A while I think you can argue it does confer an individual right to keep arms it does so in the context of a military (bear arms). Again, archaic, AND it has nothing to do w/ how most people realistically use their firearms.
/exhales
Fugitive Sisyphus
Escape Artist
The Bill of Rights originally only applied to the federal government, correct.
That still doesn't give the federal government the power to restrict the right to bear arms. The states could restrict the right to bear arms but the state Constitutions I have read all closely mirror the US Constitution in terms of rights.
Also, since the federal government has absorbed much of the powers that once belonged to the states that the states should have to observe all the rights outlined in the Constitution not just some of them.
On a somewhat related matter, although I think the 3rd amendment is obsolete, I do not want it repealed.
That still doesn't give the federal government the power to restrict the right to bear arms. The states could restrict the right to bear arms but the state Constitutions I have read all closely mirror the US Constitution in terms of rights.
Also, since the federal government has absorbed much of the powers that once belonged to the states that the states should have to observe all the rights outlined in the Constitution not just some of them.
On a somewhat related matter, although I think the 3rd amendment is obsolete, I do not want it repealed.
Whew. Thanks for such a well-considered response.
I'm going to take a bit to mull it over, but two things immediately leap out at me.
#1, Nerfing the First Amendment results in civil disobedience - you mean like, say, exercising freedom of assembly? Or freedom of speech? I bet there would be all kinds of journalists writing up a storm about it. My point being, people directly affected fight the hardest, and they fight the way they know how - yes, that makes nerfing the 2A significantly more potentially bloody.
#2, I don't think we can do anything but agree to disagree on the deterrence effect an armed citizenry has on a potentially tyrranical government. I've never heard a satisfactory answer as to why the New Orleans powers-that-were tried to confiscate civilian (as opposed to looter) guns, but I suspect that it was a planned prelude to a forced exodus.
Oh, and #3 (yeah I lied), Parker isn't going to motivate SCOTUS to incorporate 2A because it is irrelevant to the case. But it'll be enough to simply prevent a true nationwide ban if upheld, as so many states have strong (stronger than federal, that is) 2A-type affirmations in their own constitutions and thus likely couldn't ban at the state level anyway.
I'm going to take a bit to mull it over, but two things immediately leap out at me.
#1, Nerfing the First Amendment results in civil disobedience - you mean like, say, exercising freedom of assembly? Or freedom of speech? I bet there would be all kinds of journalists writing up a storm about it. My point being, people directly affected fight the hardest, and they fight the way they know how - yes, that makes nerfing the 2A significantly more potentially bloody.
#2, I don't think we can do anything but agree to disagree on the deterrence effect an armed citizenry has on a potentially tyrranical government. I've never heard a satisfactory answer as to why the New Orleans powers-that-were tried to confiscate civilian (as opposed to looter) guns, but I suspect that it was a planned prelude to a forced exodus.
Oh, and #3 (yeah I lied), Parker isn't going to motivate SCOTUS to incorporate 2A because it is irrelevant to the case. But it'll be enough to simply prevent a true nationwide ban if upheld, as so many states have strong (stronger than federal, that is) 2A-type affirmations in their own constitutions and thus likely couldn't ban at the state level anyway.
Che Guava
The Juicy Revolutionary
Could it be that second amendment rights cause more harn than good when the primary concern for order, the law and justice sstem, break down?
Or maybe just a knee-jerk reaction from those who worry about the nouveau poor arming temselves?
I'd say that when law enforcement is absent is exactly when 2A rights become most important - what sounds better to you, "armed truce" or "mob rule"?
