2nd Amendment--applicable how?

[Vol_907]

There's been a long-standing debate over how to interpret the second amendment to our constitution. Gun-control advocates say it is applicable only to militias. The gun-rights crowd state the right is for individuals.

As recent as August, the Department of Justice's Office of Legal Counsel issued a memorandum, concluding that the Second Amendment protects an individual right to arms. (Courtesy fellow Vol Glenn Reynolds)

Your thoughts?

jth

[noodle]

imho, the intent of the amendment was for militias only.
i do, though, think that individuals have the right to own guns.
i also think, though, that we need some tighter controls.

[mrbiggs]

Personally, I think the less guns the better--to a certain extent. I think that banning guns completely would have a negative effect, but on the other hand, I don't really trust my neighbor Bob, who we all agree isn't 100%, with an AK-47.

[telkanuru]

There's a reason they analyzed the first part of the sentence third, and why they fragmented it. It's the same reason the NRA only uses the second half on its logo.

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.

What this means, simply, is "Because a well-regulated Militia is necessary for the the security of a free state, the right of the people to keep and bear arms shall not be infringed." The people are allowed weapons because they may be needed to serve in the Militia. A militia is not a mob, nor is it one person shooting an intruder in their house. Also, please note the 'well regulated' nature of the militia. To me, that says state-level organization, but it could be argued down to city or town control. It is certainly not an independant organization. If anything, the 2nd calls for explicit arms control.

I would like to conclude by saying that this is an obvious attempt by a Republican administation to exert the will of a third party and to appease its base.

[Rogue]

At the time of the founding, was the militia a state regulated body?
No. The crown was the state.
Militias were free people who volunteered their services with their personal weapons to fight the British.
Why did they not use the word army?
Could it be because the government controlled armies?

Also remember the Bill of rights was intended to enumerate the individual’s rights not the State’s rights or its agency. Simply because it is placed in the Bill of rights, defines it as pertaining to the individual not the State.

Not to mention the founders wish to keep the government in check with an armed citizenry.

If one truly wants to understand the Founders intent of the second amendment, please read the Federalist papers or other sources from that time.

"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
-- Alexander Hamilton, Federalist No. 28

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46

"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts

"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
-- Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356

"No Free man shall ever be debarred the use of arms."
-- Thomas Jefferson

"The great object is, that every man be armed ... Every one who is able may have a gun."
-- Patrick Henry

"And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.... "
--Samuel Adams

To blame guns for crime is like praising the hammer for the barn. - Rogue

The anti-gun crowed has no support from the Founders. The Founders seemed to have predicted the desire of some to disarm the citizens and wrote the 2nd amendment to prevent it from happening.

[Portela]

Originally Posted by Rogue

At the time of the founding, was the militia a state regulated body?
No. The crown was the state.
Militias were free people who volunteered their services with their personal weapons to fight the British.
Why did they not use the word army?
Could it be because the government controlled armies?

Also remember the Bill of rights was intended to enumerate the individual’s rights not the State’s rights or its agency. Simply because it is placed in the Bill of rights, defines it as pertaining to the individual not the State.

Not to mention the founders wish to keep the government in check with an armed citizenry.

If one truly wants to understand the Founders intent of the second amendment, please read the Federalist papers or other sources from that time.

"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
-- Alexander Hamilton, Federalist No. 28

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46

"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts

"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
-- Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356

"No Free man shall ever be debarred the use of arms."
-- Thomas Jefferson

"The great object is, that every man be armed ... Every one who is able may have a gun."
-- Patrick Henry

"And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.... "
--Samuel Adams

To blame guns for crime is like praising the hammer for the barn. - Rogue

The anti-gun crowed has no support from the Founders. The Founders seemed to have predicted the desire of some to disarm the citizens and wrote the 2nd amendment to prevent it from happening.

amen to that

[noodle]

Originally Posted by Rogue

At the time of the founding, was the militia a state regulated body?
No. The crown was the state.
Militias were free people who volunteered their services with their personal weapons to fight the British.
Why did they not use the word army?
Could it be because the government controlled armies?

Also remember the Bill of rights was intended to enumerate the individual’s rights not the State’s rights or its agency. Simply because it is placed in the Bill of rights, defines it as pertaining to the individual not the State.

Not to mention the founders wish to keep the government in check with an armed citizenry.

If one truly wants to understand the Founders intent of the second amendment, please read the Federalist papers or other sources from that time.

"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
-- Alexander Hamilton, Federalist No. 28

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46

"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts

"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
-- Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356

"No Free man shall ever be debarred the use of arms."
-- Thomas Jefferson

"The great object is, that every man be armed ... Every one who is able may have a gun."
-- Patrick Henry

"And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.... "
--Samuel Adams

To blame guns for crime is like praising the hammer for the barn. - Rogue

The anti-gun crowed has no support from the Founders. The Founders seemed to have predicted the desire of some to disarm the citizens and wrote the 2nd amendment to prevent it from happening.

1) i agree with the philosophy that its not the gun that kills, its the person. but i also subscribe to the philosophy that there's no real point to sell friggin assault rifles in a shop and that people should be checked to make sure they aren't a nut before they buy the gun. why should we be required to have a driver's lisence to operate a car but not something similar and better for a gun?

2) the individual right described is the right to bear arms in the bill of rights is indeed because of the fact that there was no militia. everyone had the right to fight for their emerging nation if the occasion arose. there was no army that won the independance, it was the people. no way were they going to deny that power to the people, the power that won them their freedom.

[lochinvar]

Um, noodle? Are you on drugs or something?

Originally Posted by noodle

(snip) 2) the individual right described is the right to bear arms in the bill of rights is indeed because of the fact that there was no militia.

There was a militia. Every state had it's own militia, consisting of every able-bodied man between the ages of (I believe) 16-50; the militia was subject to being called up by the governor during a state of emergency. The militia existed precisely because there was no army, or at least not one within easy reach, and every state/colony was charged with protecting itself. Every state still has a militia, only now it's known as the National Guard.

everyone had the right to fight for their emerging nation if the occasion arose.

Um, yeah, but that's not what we're talking about.

there was no army that won the independance, it was the people. no way were they going to deny that power to the people, the power that won them their freedom.

No army? Ever hear of the Continental Army, General George Washington, etc., etc.? I guess they were just a bunch of Boy Scouts on a day hike...

Go lie down for a while and come back when you're feeling better.

[noodle]

hey, i'm not a history major, i forgot about the continental army. sue me, not like i do much reading on the 2nd amendment for leisure.

the idea behind my point stands. if someone wanted to fight for their country, they had the right to.

[telkanuru]

Revolutionary frontiersmen desire the common man to have guns? Shock!

Funny how you quote Hamilton. You are aware that he died of a gunshot wound, yes?

Again, the 2nd states that you can have guns, but only for the purpose of having a militia. Unless you're quoting the Constitution or the Bill of Rights, I wouldn't waste such effort again. If your claim that all the Bill of Rights did was to protect the rights of the individual, however, I would first read the whole thing and then try to quote.

Cheers.

[ReverseLunge]

Guns are for cowards.

[Rogue]

Originally Posted by telkanuru

Unless you're quoting the Constitution or the Bill of Rights, I wouldn't waste such effort again.

Cheers.

Because it is so much easier to twist the words when you don't have to consider other sources for clarification.

[Rogue]

Originally Posted by telkanuru

Again, the 2nd states that you can have guns, but only for the purpose of having a militia.
Cheers.

Says the Constitutional scholar/historian.

[prototoast]

Originally Posted by telkanuru

Revolutionary frontiersmen desire the common man to have guns? Shock!

Funny how you quote Hamilton. You are aware that he died of a gunshot wound, yes?

Again, the 2nd states that you can have guns, but only for the purpose of having a militia. Unless you're quoting the Constitution or the Bill of Rights, I wouldn't waste such effort again. If your claim that all the Bill of Rights did was to protect the rights of the individual, however, I would first read the whole thing and then try to quote.

Cheers.

Then may I ask you why the ammendment specifies the right of the people. Perhaps you could interpret it this way... since a well regulated militia is necessary to the security of the state, there will always be an army, as it is necessary, however it is also known that government armies are a threat to people's civil rights, therefore the right of the people to keep and bear arms shall not be infringed, so they will not be at the mercy of the army.

All throughout history, control of weapons has been a technique used by cultures to preserve power for the elite. Why should anyone be at the mercy of others for their security?

[Rogue]

That interpretation would not fit into the;

person/individual = bad,
people/government = good

school of thought.

[jeff]

Unfortunately, the framers of the 2nd Amendment used wording that can be interpreted in both "guns for them that wants 'em", and "guns within a well-ordered militia", as Vol_907 said. Maybe they were deliberately ambiguous, maybe not, but we're not making any progress by declaring their intentions based on what we wish they meant. People preferring one interpretation over the other can quote the amendment till they're blue in the face - it just isn't going to solve the issue.

Let's remember that neither the Constitution nor the amendments are perfect, nor can they be understood outside the context in which they were made. It took until the 13th amendment to abolish slavery, and till the 19th for women to be able to vote. The 16th amendment authorised federal income tax and the 18th amendment took away liquor (repealed by the 21st). So much for the claim that "all amendments increase our personal freedoms".

Let's also recognise that rights aren't unrestricted: there are things you can do to lose your freedom (eg: get thrown in jail), speech (limited by libel and slander laws, for example), and ownership of firearms too. People who like to say that laws restricting access to firearms are illegal because of the 2nd amendment forget that other rights are also subject to restrictions. For me, that immediately invalidates any claim that the 2nd amendment gives a sweeping unconditional right to arms regardless of circumstances and devoid of regulation (not to mention ignoring the "well regulated militia" part).

We should think about this according to what this means for us now, not in the context of a revolutionary time fresh from a war for independence, while we still were taking land away from the original owners of this continent, and when many people used guns to put meat on the table. Today, there are people who use firearms to feed their families (I know people who depend on the game they hunt), or for sport. There are also drug dealers that use Tek9's to defend their turf.

Let's deal with the reality that there are both good and bad reasons for people to have firearms, and not obsess about Founders intentions (they permitted slavery to exist, didn't they?), or about fantasy scenarios of armed struggle against dictatorships. Let's also face up to the fact that we're a lot more violent a society than we should be - definitely when compared to other countries with lots of firearms (Switzerland, Israel). Death from firearms is a real problem today - not a fantasy one.

[prototoast]

Originally Posted by jeff

Let's also face up to the fact that we're a lot more violent a society than we should be - definitely when compared to other countries with lots of firearms (Switzerland, Israel). Death from firearms is a real problem today - not a fantasy one.

I disagree, I feel that violence is this country is quite low, and is just overhyped and sensationalized because it plays to people's fears.

[mrbiggs]

Just to keep in mind, remember that a high-quality gun in 1791 was a musket. Killing a specific person with a musket was never easy. I'm sure that the founding fathers did not expect guns to ever be accurate at thousands of yards, nor did they expect guns that could shoot hundreds of times a minute.

[jeff]

mrbiggs, I absolutely agree with your post about gun quality. I was thinking of saying something about that but my post was already too long. You expressed that very well - I don't think the founding fathers contemplated or would have been happy to see widely available automatic weapons.

prototoast: I can't agree: the number of deaths due to firearms is an atrocious fact. While crime has dropped in recent years, we're still a much bloodier society than we should be, and it stands in contrast to others. A quick search gave me http://www.cdc.gov/ncipc/pub-res/firarmsu.htm which reported 38,000 US deaths due to firearms in 1994. We can find more recent stats, but I just don't know how you can say "quite low".