The second amendment

Re: Second Amendment Poll

joefromchicago wrote:

Debra_Law wrote:
Amendment II contains a declaration: A well regulated militia is necessary to the security of a free state.

So would you agree that the Second Amendment has two separate and independent components: one stating that militias are necessary and the other guaranteeing the individual's right to keep and bear arms?

I for one would agree.

The first clause is a requirement that the government keep up the militia for the defense of the country. The second clause protects the right to keep arms at home and bear them in the militia.

The two clauses are descended from the English Bill of Rights:

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom.

5. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.

6. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.

And thereupon the said lords spiritual and temporal, and commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid; do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare;

6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss1.html

The Virginia Ratifying convention combined them into one:

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss9.html

This was eventually distilled into what is the Second Amendment.

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I don't have anything new to say on the substance of this subject,. But after this thread went to sleep, I found a really neat site that collects primary documents on the subject. It's called "The Avalon Project", and it's hosted at Yale.

http://www.yale.edu/lawweb/avalon/avalon.htm

Apart from the English Bill of Rights and Blackstone's "commentaries", (which talks about arms in a chapter named "Rights of persons" ) I found the American State Constitutions that were in place in 1791 very helpful in forming my opinion.

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Thomas wrote:

I don't have anything new to say on the substance of this subject,. But after this thread went to sleep, I found a really neat site that collects primary documents on the subject. It's called "The Avalon Project", and it's hosted at Yale.

http://www.yale.edu/lawweb/avalon/avalon.htm

Apart from the English Bill of Rights and Blackstone's "commentaries", (which talks about arms in a chapter named "Rights of persons" ) I found the American State Constitutions that were in place in 1791 very helpful in forming my opinion.

Cool! I didn't know they had Blackstone.

"THE fifth and laft auxiliary right of the fubject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. Which is alfo declared by the fame ftatute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due reftrictions, of the natural right of refiftance and felf-prefervation, when the fanctions of fociety and laws are found infufficient to reftrain the violence of oppreffion."

By the way, the "suitable to their condition and degree, and such as are allowed by law" only means that the right is limited to militia arms.

Since the Assize of Arms in 1181, militia law required men of certain degrees of wealth to maintain certain amounts of weaponry.

http://www.constitution.org/sech/sech_034.htm

The English Bill of Rights changed this "duty to have those weapons even if you didn't want to" into a "right to have them if you wanted to".

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oralloy wrote:

By the way, the "suitable to their condition and degree, and such as are allowed by law" only means that the right is limited to militia arms.

Can you cite your source for this?

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Thomas wrote:

oralloy wrote:
By the way, the "suitable to their condition and degree, and such as are allowed by law" only means that the right is limited to militia arms.

Can you cite your source for this?

I get it mainly from militia law requiring people of certain condition and degree to have certain types of militia arms.

Note from the Assize of Arms:

1. Whoever possesses one knight's fee shall have a shirt of mail, a helmet, a shield, and a lance; and every knight shall have as many shirts of mail, helmets, shields, and lances as he possesses knight's fees in demesne.[1]

2. Moreover, every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance; and every free layman possessing chattels or rents to the value of 10m. shall have a hauberk, an iron cap, and a lance.[2]

3. Item, all burgesses and the whole community of freemen shall have [each] a gambeson,[3] an iron cap, and a lance.

The right Blackstone is quoting was a reaction to militiamen being deprived of arms by King James II.

I think it's reasonable to take the "social status in regards to types of arms in the militia-related right" as having the same meaning as "social status in regards to types of arms in existing militia law".

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oralloy: Can you post a link to those militia laws please? The reason I'm asking is that together with "and such as are allowed by law", it sets a legitimate framework for modern gun regulation. (even without with out the "suitable for their conditions", though, it seems that some form of gun control would have been perfectly fine under the 1688 Bill of Rights and Blackstone.

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THis may have already been said but....it bears repeating.

Guns are not the problem. People are the problem. If you want to shoot and kill someone, you'll find a way to shoot them, legal or illegal gun. The silly but true statment "Guns don't kill people, people kill people" is my opinion.

The "bad guys" are going to have guns regardless of whether ot not they are legal. I say joe schmoe should be allowed to own a weapon to protect his home and family. Concealed weapons are another issue all together.

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Thomas wrote:

oralloy: Can you post a link to those militia laws please?

http://www.constitution.org/sech/sech_034.htm

This is the law from 1181, which is what I was quoting. This 1181 law is what started the notion of people of certain degrees having certain types of arms. My understanding is that over the centuries it was changed to reflect the evolution of weapons, but I only know of a link to the original 1181 law.

Thomas wrote:

The reason I'm asking is that together with "and such as are allowed by law", it sets a legitimate framework for modern gun regulation. (even without with out the "suitable for their conditions", though, it seems that some form of gun control would have been perfectly fine under the 1688 Bill of Rights and Blackstone.

Modern gun regulation doesn't really need an ancient framework for justification. So long as it doesn't conflict with the militia/arms right, state governments have the power to pass any gun control they wish. The federal government would run into trouble with the Tenth Amendment in this regard.

Some gun control *was* fine under the English Bill of Rights. This was only a right to have a musket (the militia arm of the day). The right did not cover hunting shotguns or concealable handguns, which were against the law for most people.

Today, the right would cover automatic rifles, but not other types of weapons (see the Swiss Militia for a perfect example of what was intended with the Second Amendment).

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oralloy wrote:

Thomas wrote:
it seems that some form of gun control would have been perfectly fine under the 1688 Bill of Rights and Blackstone.

Some gun control *was* fine under the English Bill of Rights. This was only a right to have a musket (the militia arm of the day). The right did not cover hunting shotguns or concealable handguns, which were against the law for most people.

Some gun control even existed back in 1181:

6. Any burgess who has more arms than he ought to have by this assize shall sell them, or give them away, or in some way alienate them to such a man as will keep them for the service of the lord king of England. And none of them shall keep more arms than he ought to have by this assize.

7. Item, no Jew shall keep in his possession a shirt of mail or a hauberk, but he shall sell it or give it away or alienate it in some other way, so that it shall remain in the king's service.

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oralloy wrote:

Thomas wrote:
oralloy: Can you post a link to those militia laws please?

Some gun control *was* fine under the English Bill of Rights. This was only a right to have a musket (the militia arm of the day). The right did not cover hunting shotguns or concealable handguns, which were against the law for most people.

Source? Sorry for being obnoxious, but this is a debate where opinions are frequently stronger than the evidence supporting them, hence my insistence on evidence.

oralloy wrote:

Today, the right would cover automatic rifles, but not other types of weapons (see the Swiss Militia for a perfect example of what was intended with the Second Amendment).

I am not convinced of this. Neither the English Bill of Rights nor Blackstone distinguish between individual and collective self-defense. They both refer to "their defense". The State Constitutions I linked to earlier have two versions of language: some say "for the defense of themselves and the state", some "for the defense of the state". Two of the State Constitutions, I don't remember which ones, specifically prohibit the carrying of guns during an election, in the room where people cast their ballots -- which implies that they would have otherwise had the right to do so.

The Swiss Militia was always about collective self defense, and it is illegal to even open your box of ammunition for any purpose other than defending Switzerland. By contrast, I see no persuasive evidence from the legislative history of the Second Amendment that it excludes individual self defense, and some evidence that it includes it.

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Re: Second Amendment Poll

oralloy wrote:

The first clause is a requirement that the government keep up the militia for the defense of the country. The second clause protects the right to keep arms at home and bear them in the militia.

So you'd agree that an individual's right to bear arms is tied to the state's interest in maintaining a militia, right?

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Re: Second Amendment Poll

joefromchicago wrote:

oralloy wrote:
The first clause is a requirement that the government keep up the militia for the defense of the country. The second clause protects the right to keep arms at home and bear them in the militia.

So you'd agree that an individual's right to bear arms is tied to the state's interest in maintaining a militia, right?

More like an unqualified statement, preceded by one reason why it is there. It isn't clear whether that reason is considered necessary to justify the statement, or just sufficient. And I find the Supreme Court's arguments for the "necessary" side unpersuasive in the light of the Amendment's history.

(No, I'm not the one you asked, but why should this keep me from answering? Wink

)

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Re: Second Amendment Poll

Thomas wrote:

More like an unqualified statement, preceded by one reason why it is there. It isn't clear whether that reason is considered necessary to justify the statement, or just sufficient.

(No, I'm not the one you asked, but why should this keep me from answering? )

I suspect that your answer is better than oralloy's, which is why I didn't ask you, Thomas :wink:

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Oralloy --

I hope I didn't shut you up by answering Joe's question to you. Please do tell us your opinion on whether the right to bear arms requires a State interest in the militia!

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Well, I don't think so. As a law abiding citizen, the 2nd allows me to own weapons to protect my family and property. As a bonus, we get to hunt with the artillery when and where the law allows.

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That is how the law works in practice, cjhsa, but I feel fairly certain that the Founding Fathers would have been appalled to learn that their wording, meant to enable an organized citizen militia to fight off an invading enemy, is now being used to justify Saturday night specials and AK47s in the hands of potential criminals.

This is madness.

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I disagree completely. Just what the hell is a "potential criminal"?

Let's say I own an AK-47 or Mac-15 or whatever, that I like to take to the range and shoot. Does that make me a "potential criminal" in your eyes?

I'm extremely disappointed in you Eva. If you don't like guns, fine, buy don't justify your phobia by using words like "potential" or "might" or "maybe".

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Sorry to disappoint you. Perhaps I should have worded it this way: "...in the hands of those planning crimes." Or are you going to claim that people planning crimes don't buy guns?

I STILL say that the original writers didn't intend the second amendment to be used the way it is currently. I have read the wording over and over, and it is clear to me that the right to bear arms is tied to the necessity to have an organized civilian militia.

You belong to a militia, cjhsa?

And as far as "potential," "might" or "maybe"...thousands of good laws are on the books right now because of what people "might" do if given the chance.

For the record, all the men in my family collect guns, including my husband. All have taken gun safety courses and follow reasonable firearm safety rules. However, that has NOT kept me or others in my family from being hurt by those same guns. The U.S. has an astonishingly high rate of firearm injuries and deaths...much higher than any other 1st world country. And at the last area safety meeting conducted for my merchant area, the police emphatically told the shopkeepers and restaurant employees NOT to keep guns, because they are "11 times more likely to get hurt with their own gun than (you) are to use it against someone in defense."

So again, cjhsa, I am sorry if it offends you, but I am strongly in favor of gun control. I would appreciate it if you did not refer to me as "phobic" or any other thinly-veiled insult because I happen to disagree with you on this issue.

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Go Eva.

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I'll second Thomas' interpretation. "[T]he right of the people to keep and bear arms" is not clearly conditioned on "[a] well regulated militia." The militia clause merely provides one rationale for the right, and it's unclear that the rationale is necessary to uphold the right.

I abstain from the policy discussion in the last couple of posts.

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The second amendment

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