The second amendment

Advocate wrote:

As you know, Eisentrager is not a gun-possession case. At best, it may be cited as dicta in a gun case.

Do u deny that in Barron v. Baltimore the USSC
was presented only with a question of "eminent domain",
interpreting the last clause of the 5th Amendment,
and yet used that opportunity to interpret the entire Bill of Rights,
as allegedly not meaning what it said,
but not applying to the states ?

This was overthrown ( in theory ) by section 1 of the 14th Amendment,
according to its author, Congressman John Bingham.

When Sen. Jacob Howard introduced the 14th Amendment to the US Senate,
he described "the PERSONAL RIGHTS guaranteed and secured by the FIRST EIGHT amendments
of the Constitution; such as freedom of speech and the press;...the right to keep and bear arms....
The great object of the first section of this amendment is...
to restrain the power of the states and compel them ...
to respect these great fundamental guarantees." [emphasis added]

Please note that the 2nd Amendment is within the " first 8 amendments."
David

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Atavistic wrote:

Advocate wrote:

Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.

The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually. And it uses a distinctly military phrase: 'bear arms.'...

The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia.

So your basic argument would be that only members of the military are guaranteed the right to bear arms.
It doesn't take a genius to recognize the ridiculousness of that concept.

Specificly, state government militia.

We know from history that at the time that the Bill of Rights was passed
by Congress and ratified by the States,
there was no movement to repeal Article I §10 of the Constitution
against the States keeping troops.

When President Eisenhower stripped away the State Militia of Arkansas,
for Federal use in 1957, away from the control of Governor Orval Faubus,
no one complained that Ike was violating the Second Amendment.

When the Kennedy bothers did the same thing to Governor George Wallace
of Alabama in 1963, after everyone had FIVE YEARS to ponder what had happened
to the State of Arkansas, again NO ONE complained
( not either Governor, nor the Attorney General of the US, nor the Attorney General of Arkansas,
nor the Attorney General of Alabama, nor any Bar Association, nor the KKK )
that there was a violation of the Second Amendment.

If the Second Amendment were enacted to protect the rights of State governments
to keep militia, against the prohibition of Article I §10,
then why was there no objection when the protected rights of two States
to do so were violated ? The answer is that NOBODY really beleives that
the Constitution was amended to protect the rights of government militia.

It is the authoritarian-collectivists' ( liberals') defense by hypocrisy.

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echi wrote:

I need greater specificity!

OK

Quote:

Here you go... I'll just ask a ridiculous question: Would you consider it within the bounds of the Constitution for my law abiding, next door neighbor to own and keep a functioning rocket launcher (and functioning rockets) in his backyard? (I am not trying to set you up.)

Yes.
Remember, one of the reasons for civilian armament
was to overthrow government, as the Founders did.
The citizens need the tools to successfully accomplish that.
David

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Thanks, David. Neutral

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echi wrote:

Thanks, David.

Its a pleasure conversing with u.
David

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OSD, thanks for your comprehensive brief regarding various cases that touch on the second amendment.

Let me ask you something. If those cases are so dispositive on the question of whether one has an unfettered right to bear arms, how is it that gun control is alive and well in the USA?

You must know that cases that only tangentially touch on the second amendment cannot be dispositive on the above question.

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Advocate wrote:

OSD, thanks for your comprehensive brief regarding various cases that touch on the second amendment.

Let me ask you something. If those cases are so dispositive on the question of whether one has an unfettered right to bear arms, how is it that gun control is alive and well in the USA?

Since the Verdugo case and the Planned Parenthood case holdings,
the USSC has not accepted any cases challenging government control
of guns, so far as I am aware.
The members of the Court do not explain
Y thay don 't accept cases; we are left only to guess.
My best guess is that the freedom friendly
members of the Court are in doubt as to
whether thay have the votes to conclusively
resolve the basic question of freedom of self preservation.
( The votes of Sandy O'Connor and of Kennedy were unpredictable. )
As W replaces Stevens, Ruth Bader Ginsberg, Souter or Breyer,
it appears to me that the the freedom loving side of the question
will have the necessary votes to get the job done.
Maybe thay were waiting for that situation to mature and occur.

Quote:

You must know that cases that only tangentially touch on the second amendment cannot be dispositive on the above question.

Insofar as precedential value is concerned,
the critical criterion separating obiter dictum from stare decisis
is whether it was NECESSARY
for the court to render an interpretation of law
in order to dispose of the case at bar.

So far as I can see,
it was necessary for the USSC to define
what " the people " means in the Bill of Rights,
to dispose of that 4th Amendment case.

Remember that in Barron v. Baltimore
and in the Slaughterhouse cases, the USSC did not have
all 37 of the rights preserved by the 1st 10 amendments before it,
yet was precedent for the proposition
that the ENTIRE Bill of Rights did not apply to limit
the power of the states ( regardless of the fact that many
of the amendments are cast in UNIVERSAL negative propositions ).

By deciding, within a 4th Amendment case,
that " the people " means the same thing
everywhere that it is found in the Constitution of 1787
and in the Bill of Rights, it seems to me
that stare decisis applies.

If u disagree, I 'd like to know Y ??

Let us assume, arguendo, that neither
the Verdugo case, nor the Planned Parenthood case,
have any precedential value because of context;
the fact remains that the USSC found what thay found
and said what thay said,
and thay r still there waiting; its not as if a shoeshine boy dreamed it up.
David

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By definition, a militia is an armed force. Doesn't it seem a little ridiculous to say that an armed force has the right to bear arms???

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Amendment II

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.

The above indicates that the people have an unfettered right to bear arms in the context of a well-regulated militia. Thus, in my view, it would take quite a bit of twisted logic to ignore the militia aspect in granting people an unfettered right.

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Advocate wrote:

Amendment II

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.

The above indicates that the people have an unfettered right to bear arms in the context of a well-regulated militia. Thus, in my view, it would take quite a bit of twisted logic to ignore the militia aspect in granting people an unfettered right.

So in other words, someone has the right to bear arms, as long as it's in the service of the government. Doesn't sound like much of a right to me.

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Re: The second amendment

OmSigDAVID wrote:

For dispassionate analysis of the amendment 's syntactical architecture,
let us consider the following analogy:

"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" US Constitution, 2nd Amendment

ANALOGY: A well educated electorate being necessary to the
security of a free state, the right of THE PEOPLE
to keep and read books shall not be infringed.

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The upshot of the amendment is that gun possession for the average person may be regulated. As you know, there is very little regulation in most of the USA.

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That is not the upshot of the amendment.

The amendment means, in other words,
that any intereference with guns is beyond
the authority of government,
and that
the people have the right to associate
with one another, if thay choose,
in forming private militia
( as distinct from the " selected militia " which were
the government sponsored militia )
David

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So can I legally start a milita?

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David--
(just a lingering thought...)
If guns are relatively simple to manufacture-- If gun control is impossible, I wonder why the framers felt compelled to address the issue (as the 2nd Amendment, no less)... especially seeing as how they, themselves, had just won a revolution without the benefit of such protection.

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echi wrote:

David--
(just a lingering thought...)
If guns are relatively simple to manufacture-- If gun control is impossible,
I wonder why the framers felt compelled to address the issue (as the 2nd Amendment, no less)... especially seeing as how they, themselves, had just won a revolution without the benefit of such protection.

To protect the citizenry from government
attacking them for arming themselves
( as Castro did in 1960, sending platoons from
house to house ransacking them, in search of guns ).
There were many private gunsmiths;
ALL gunsmiths were private entrepeneurs,
so thay KNEW that thay were privately made.

In the Federalist Papers,
in support of ratifying the Constitution,
( BEFORE there was a 2nd Amendment )
thay argued that the people,
with their numerous militia,
wud be able to overthrow government,
if thay found it to be not to their liking.

Indeed, some states in ratifying the Constitution
explicitly set forth their right to leave the federation
if thay saw fit, for their happiness.
Case in point: New York:

00/04/17 New York Instrument of Ratification of the Constitution
Record Group 11, The National Archives, Washington, DC

" That the powers of government may be reassumed by the people
whensoever it shall become necessary to their happinesss ....

That the People have a right to keep and bear Arms;
that a well regulated Militia, including the body of the People
capable of bearing Arms,
is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law, except in time of
War, Rebellion or Insurrection."
THEN: Be it known that We the People of the State of New York, Incorporated in
statehood under the Authority of The Constitution of the United States of America
by the New York Instrument of Ratification, thus are graced by the
full benefits and liberties predicated under that document;
or we are made and held captive under Unlawful Powers
to which Under God we cannot, must not, and do not submit." [emfasis added by David]
David

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Atavistic wrote:

So can I legally start a milita?

Your right to do so
is protected by the Supreme Law of the Land,
but ( depending upon your jurisdiction )
local laws might be in conflict therewith.
Forming a militia might violate local laws,
causing trouble with the local police.

In theory,
the USSC will defend your constitutional rights
if thay r violated. It is uncertain that thay will
do what thay r paid to do. Thay accept only
about 1 out of 400 appeals a year.

Possibly, it might be that the constitutional purists
are awaiting appointment of reinforcements
before thay address the issue. Certainly,
almost 100% of the legal intelligentsia,
including liberals, in their writings agree
that the 2nd Amendment
protects a right of the individual American citizen.
David

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echi wrote:

David--
(just a lingering thought...)
If guns are relatively simple to manufacture--
If gun control is impossible,
I wonder why the framers felt compelled to address the issue (as the 2nd Amendment, no less)... especially seeing as how they, themselves, had just won a revolution without the benefit of such protection.

There can be little room for doubt
that guns r ez to manufacture
in light of the fact that thay r so old
that thay were around about a couple
of centuries before Johannes Gutenberg
invented the printing press.

Since then,
we have discovered ELECTRICITY,
and how it powers TOOLS,
including the ones used to make good guns
and we have discovered
HARDWARE STORES for convenient supplies.
David

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Re: The second amendment

Atavistic wrote:

"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 exactly does this mean? I was always under the assumption that the second amendment guaranteed the right of citizens to own firearms. There seems to be an ongoing debate though about the interpretation of this amendment. Some say that this only guarantees the right of militias to bear firearms. I find this interpretation odd though. Doesn't it seem a bit redundant to say that a militia has the right to bear arms? Also, isn't the right to bear arms meant as a safeguard against the possible tyranny of government?

The truth is somewhat in between the two positions. While strictly speaking, the amendment only protects the right of militia to have military weapons, it ALSO insists that the government maintain such a militia. So if the government was fulfilling its obligation to have a proper militia, all someone would need to do in order to exercise their Second Amendment rights is, sign up to the militia.

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Re: The second amendment

Thomas wrote:

Atavistic wrote:
"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 exactly does this mean?

This seems to be an unresolved question of federal law, judging by the radically different answers recent appeals court decision have given to it.

The Supreme Court was pretty clear on the matter in the Miller decision in 1939.

Why the appeals courts freely ignore the Supreme Court's ruling in this matter is beyond me.

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The second amendment

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