Understanding the 2nd Amendment

[downwardspiral 0]

I posted this in another thread but felt it need a thread all on it's own because it gives us some insight to the what our founding fathers meant by the 2nd Amendment as it is written.


Samuel Adams 1769:

to the right of having and using arms for self-preservation and defence." These he calls "auxiliary subordinate rights, which serve principally as barriers to protect and maintain inviolate the three great and primary rights of personal security, personal liberty and private property": And that of having arms for their defence he tells us is "a public allowance, under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."--How little do those persons attend to the rights of the constitution, if they know anything about them, who find fault with a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defence at any time; but more especially, when they had reason to fear, there would be a necessity of the means of self preservation against the violence of oppression.--Every one knows that the exercise of the military power is forever dangerous to civil rights; and we have had recent instances of violences that have been offer'd to private subjects, and the last week, even to a magistrate in the execution of his office!--Such violences are no more than might have been expected from military troops: A power, which is apt enough at all times to take a wanton lead, even when in the midst of civil society; but more especially so, when they are led to believe that they are become necessary, to awe a spirit of rebellion, and preserve peace and good order. But there are some persons, who would, if possibly they could, perswade the people never to make use of their constitutional rights or terrify them from doing it. No wonder that a resolution of this town to keep arms for its own defence, should be represented as having at bottom a secret intention to oppose the landing of the King's troops: when those very persons, who gave it this colouring, had before represented the peoples petitioning their Sovereign, as proceeding from a factious and rebellious spirit; and would now insinuate that there is an impropriety in their addressing even a plantation Governor upon public business--Such are the times we are fallen into

http://press-pubs.uchicago.edu/...cuments/v1ch3s4.html


Thomas Jefferson to James Madison 1787:

I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of Nations.

http://press-pubs.uchicago.edu/...ments/v1ch14s30.html


Alexander Hamilton 1788:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

http://press-pubs.uchicago.edu/...ments/v1ch14s38.html


Virginia Ratifying Convention, Proposed Amendments to the Constitution 1788

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/...ments/v1ch14s43.html


Interesting stuff

www.FourWheelerHB.com

[Lucky... 0]

>>>>>>>>>>>>>>>.I don't see any remark of the well regulated words/term. No definition, which presumably means they left it up to the leaders of whatever time it comes under question. That doesn't even address other issues with teh 2nd.

Furthermore, Madison wrote that passage and everyone else signed off on it without further language defining all the questions, eps well regulated.

What you're not understanding is that most/all amendments are wide open to interpretation and that these interpretation change sometimes violently throughout time. We can slice and dice what we think they meant, and we night even make a good argument, but until we hear decisions from the SCOTUS it is just rhetoric, perhaps well organized thetoric, but the only binding thing that matters are the rendering of the SCOTUS.

Again, post the main issue, that of well regulated.

[downwardspiral 0]

You really need to stop making such assumptions about me. ALL written and spoken language is wide open to interpretation. All you're doing is arguing that we don't know what we don't know. Hardly compelling.

I look forward to the day SCOTUS defines 'well regulated' because only then, no matter how they define it, will we truly have our 2nd Amendment right. Although, I have my doubts it will ever happen because it is currently what gives the government the power to disarm us. Imagine two words with so much power. Alexander Hamilton was right.


Anywho, the point of this thread is to point out our founding fathers were paranoid as hell about an oppressive government and it is one of the main reasons the 2nd Amendment exists today. HEll it IS the main reason the Bill of Rights exists today. A greenie argued against this with me not too long ago so I thought he might find this interesting.

www.FourWheelerHB.com

[Lucky... 0]

>>>>>>>>>>>>>>ALL written and spoken language is wide open to interpretation.


Right, not only do interpretation get revised, but meanings of words change over time as well, so the point here is that the US Const was written in a very vague way, perhaps intentionally. The intent and context of the 2nd was written around a time of militias and no standing armies, in fact, the language disavows teh use of standing armies, so the original intent then goes with the way of the use of militias and the entire amendment could be considered aerchaic and moot unless we revert back to militias.

Look, we can make this a 10,000 hit thread or just agree that the interpretation could go any of many ways in regard to legal firearm ownership by future SCOTUS justices. If the language were more clear, as in, "The right of every American citizen to own a firearm shall not ever be abridged in any way." Then we could agree that the intent would be to allow for firearm owning rights. But then we have issues like the scope; how big, how many, where can we carry them outside our houses, etc.... I mean, these issues try to answer 1 question and raise 100 more, so enjoy, just don't think for a second that our ability to legally own firearms is bulletproof.

>>>>>>>>>>>>>>All you're doing is arguing that we don't know what we don't know.


After you study law for years, you arrive frimly at the position that there is no answer. You go thru a frustration period for a while, as there is supposed to be a manual, but sorry, it is what it is.


>>>>>>>>>>>>>>>I look forward to the day SCOTUS defines 'well regulated' because only then, no matter how they define it, will we truly have our 2nd Amendment right.


Exactly my piont; on that day and the days forward we will have that right, but the defintion of teh 2nd or any/all language within it can be redefined. You just have to realize we will likely never know who killed JFK, Marilyn Monroe, if we went to the moon, if teh US gov was behind 9/11 and if so how much and the ever compelling..... what did the fathers (basically MAdison since he wrote it) mean by the language of the 2nd? And even if it is decided that the language means we have the unabridged right to own guns, might the SCOTUS decide that won't work any longer and have a justification for that? You can't let yourself get tied in these absolutes. America is what it is, you're not going to change it, just enjoy it or get out if it is no longer to your liking. There are no set rules, just the way the people in power want to do it.


>>>>>>>>>>>>Although, I have my doubts it will ever happen because it is currently what gives the government the power to disarm us.


They love to keep a lot of things wide open. This is how they arbitrarily do what they arbitrarily do.


>>>>>>>>>>>>>>>>>>>Anywho, the point of this thread is to point out our founding fathers were paranoid as hell about an oppressive government and it is one of the main reasons the 2nd Amendment exists today.



Is it? Or is it so that we could fight off foreign invaders such as the Britts? Remember, we just came out of the Revolutioary War, so it makes more sense that it was to ensure citizens could own guns for the purpose of foreign enemies, fear of foreign takeover was more the order.

>>>>>>>>>>>>>>HEll it IS the main reason the Bill of Rights exists today. A greenie argued against this with me not too long ago so I thought he might find this interesting.


The BOR adddresses many issues of domestic and foreign issues.


And one more time, the US Const has been selectively construed so much anyway, it explains why my teachers would roll their eyes as I brought it up.

http://ahp.gatech.edu/bill_of_rights_1789.html

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,...


OJ trial. OK, so take it (US Const) as a joke, legislators, judges and our curreent president do.

[Nightingale 0]

Lucky, look back at the history behind that amendment.

One of the original drafts said:

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person." (Journal of the Senate of the United States of America, Volume 1: p. 63)

If the second amendment was not an individual right, the militia would not be the body of the people (everyone!).

Look at the way the words are used in other examples from the time. For example, take a look at Virginia's Bill of Rights (1776): "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 example defines "well regulated militia" as "the body of the people, trained to arms". "Well regulated" was a very common term at the time, and would therefore not require any specific definition itself, anymore than we would think to define everyday language we use today. It just meant well trained, that the individuals with the weapons would keep them in good repair, know how to use them, and have a basic understanding of tactics.

[Lucky... 0]

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Lucky, look back at the history behind that amendment.

One of the original drafts said:

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person." (Journal of the Senate of the United States of America, Volume 1: p. 63)

If the second amendment was not an individual right, the militia would not be the body of the people (everyone!).

Look at the way the words are used in other examples from the time. For example, take a look at Virginia's Bill of Rights (1776): "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 example defines "well regulated militia" as "the body of the people, trained to arms". "Well regulated" was a very common term at the time, and would therefore not require any specific definition itself, anymore than we would think to define everyday language we use today. It just meant well trained, that the individuals with the weapons would keep them in good repair, know how to use them, and have a basic understanding of tactics.

Taking your word for that cite, the BOR was about individual rights, but under what scope? An individual right to possess arms within the context of a militia or away from that militia?


>>>>>>>>>>>>>>>>"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 really is ambiguous. Are they referring to a militia to join against the state or against foreign invaders/enemies? As with most / all amendments, there are more questions raised than there are answered.

On another note, let's hypothetically say the intent was as you say, to arm all people for whomever, then we would have to follow that writing as we do all other writings, right? I don't hear / see you constitutionalists complaining about the OJ trial where he received an unfair and speedy trial with a jury of at least 5/12 of them, partial. Point is, and you're a law student, the US Const is a joke today that no one in power follows.

The leading gun case is from 1937 is Miller I'm sure you know, and it's full of ambiguity as well. Both sides claim victory and they both have justification to do so. I understand your position of want to claim that the 2nd no doubt applies to joe-six pack to own guns in an unabridged fashion, but you know as well as I do that the language in the US Const and the decisions from justices, as written the clerks, is very flexible so they can arbitrarily change their mind down the road. You know as well as I that the justices who represent the gov decide how they want to rule and then build their rationale after that. It happens that way from the certification process to the final rendering.


>>>>>>>>>>>>>>>That example defines "well regulated militia" as "the body of the people, trained to arms".


If well regulated and trained were the same, then why the redundancy? I think the intent was different. Let's find an objective dictioinary from the late 1700's.


>>>>>>>>>>>>>>>>"Well regulated" was a very common term at the time, and would therefore not require any specific definition itself, anymore than we would think to define everyday language we use today.


From a lawter wanna be????? Clinton's question of what the definiton of is, is, was ridiculous to most, but as a law school wanna be it was a very legitimate question. Is can be an inquiry, a directive or a simple conjunctive. Well regulated, even tho not hyphenated, is more like an adjective term describing the degree of control. Common or not, EVERY word has a definition.


>>>>>>>>>>>>>>>>>>It just meant well trained, that the individuals with the weapons would keep them in good repair, know how to use them, and have a basic understanding of tactics.


OK, that's your position. Has that ever been the position of any justices? How about many justices?

[Ron 10]

Well regulated also means trained.

Well regulated also means disciplined.

Washington does not say to prevent the populace from having certain types of weapons.

Unless you think the 1st President was saying we need to eat our plans:

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A free people ought not only to be armed but disciplined; to which end a uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent on others, for essential, particularly for military supplies." -- George Washington, The first State of the Union speech, January 8, 1790

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just don't think for a second that our ability to legally own firearms is bulletproof.

Please find some quotes from the founding fathers where they are AGAINST civilian gun ownership.

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The leading gun case is from 1937 is Miller

Actually, it is Heller.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[mnealtx 0]

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From a lawter wanna be?????

Are you speaking of yourself, or Nightingale? As I recall, she *has* passed the bar.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[Nightingale 0]

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I don't hear / see you constitutionalists complaining about the OJ trial where he received an unfair and speedy trial with a jury of at least 5/12 of them, partial.

Actually, I was just talking about that case with my dad, saying I was looking forward to the outcome of his appeals, because were I a juror, based solely on what I heard through the media (I was not able to watch the whole trial nor read the transcript, so my information is incomplete), I probably would have found him not guilty, as I felt there was reasonable doubt. You don't see our entire lives, Lucky.

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Point is, and you're a law student, the US Const is a joke today that no one in power follows.

I haven't been a law student for a while now. When did you pass the bar?

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The leading gun case is from 1937 is Miller I'm sure you know, and it's full of ambiguity as well. Both sides claim victory and they both have justification to do so. I understand your position of want to claim that the 2nd no doubt applies to joe-six pack to own guns ...

Have you read DC v. Heller? Miller addresses the type of guns one may keep, and Heller addresses who may keep and bear them. Heller defines the second amendment as a right that is exercised individually that belongs to all Americans. The case went on to define "keep arms" as "a common way of referring to possessing arms, for militiamen and everyone else". (emphasis the court's, not mine). The court defined "bear" as "at the time of the founding, bear meant, as now, to carry...when used with 'arms' however, the term has a meaning that refers to carrying for a particular purpose - confrontation." and went on to say that "it in no way connotes participation with a structured military organization."

And, it is in Heller, that the Supreme Court provides you with your definition of "well regulated." You can find it on page 26 of the court's opinion if you wish to check. "Finally, the adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training."

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OK, that's your position. Has that ever been the position of any justices? How about many justices?

Yes. See Heller, above. The majority opinion was written by Scalia and joined by Roberts, Kennedy, Thomas, and Alito. That would be five.

[downwardspiral 0]

Well thanks to Nerdgirl, the only person to actually try to follow my links, I was notified my links don't work. So here they are again. Hopefully in good working order.

Samuel Adams

http://press-pubs.uchicago.edu/founders/documents/v1ch3s4.html


Thomas Jefferson to James Madison

http://press-pubs.uchicago.edu/founders/documents/v1ch14s30.html


Alexander Hamilton

http://press-pubs.uchicago.edu/founders/documents/v1ch14s38.html


Virginia Ratifying Convention, Proposed Amendments to the Constitution

http://press-pubs.uchicago.edu/founders/documents/v1ch14s43.html

www.FourWheelerHB.com

[downwardspiral 0]

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

There is quite a lot of ammunition for the Pro-2nd Amendment folks in that there link.

Is there enough data to change your mind yet or would you like more?

www.FourWheelerHB.com

[nerdgirl 0]

Thanks for separating this out and for the links. [Feeds me primary data addiction. [nerd]-]

Reading through the excerpt that you posted and the longer commentaries, recollections, and thoughts in the links, a couple themes stood out to me: the 2nd Amendment in relationship (1) to standing armies, and (2) to technology.

Some of the Founding Fathers are more direct and explicit w/r/t concern regarding standing armies and threat they were perceived in that day of having to civil liberties/citizens’ liberties. And that the 2nd Amendment was needed to protect citizens from the army, largely seen as an agent of the government. We can see this in the Constitution w/r/t the specific, delineated restrictions on funding for the Army (the 2-yr money section). It strikes me as a poignant example of fundamental change in what Americans expect and see in government, i.e., an evolution. Few of the folks who today argue most strongly for “original intent” arguments are going to argue for need to restrict standing armies. In the wake of 9-11 and Hurricane Katrina, there has been a fair bit of discussion on the extent, applicability, and proposals for review/revising Posse Comitatus, e.g., through DoD Homeland Defense (HD).

The other more speculative thoughts that occurred to me were w/r/t technology and ability to preserve/ensure civil liberties/citizens’ liberties.

During the Revolutionary Era and into much of the 19th Century, firearms were the state-of-the-art is personal offensive/defensive weapon. (Canons were even less reliable and cumbersome.) The 20th Century yielded a dazzling array of new weapons. Excepting a limited forays into tactical nuclear weapons (‘Strangelovian’ on the operator-scale, perhaps), nuclear weapons were/are largely strategic. Even Al Qa’eda claims that they want nuclear (& biological) weapons for strategic purposes (they see chemical and radiological as tactical). There are a lot of other examples from RPGs to tasers. The technologies available to today’s (civilian) law enforcement is beyond what most Revolutionary era soldiers would imagine.

If the Founding Fathers were alive today, what technology might they see as the potential biggest threat to civil liberties/citizens’ liberties?

If they were writing the 2nd Amendment today, would they restrict the 2nd Amendment? And from where/what would the perception of the greatest threat to civil liberties/citizens’ liberties originate?

A week or so ago I was talking with some folks about advances in neuroscience (& subsequent pharmacologicals, etc) and thinking about future capabilities. For example, Andy Morgan at Yale is funded by the Army (through Army Medical Command) to research cognitive changes and to identify biochemical-physiological correlates (neurochemicals, vagal tone [pronounced like “vay-gull”]) in those soldiers that respond well under stress. He and his team have also looked at the cognitive patterns and neurochemistry of soldiers who experience PTSD versus those that don’t. Few would argue that decreasing incidence of PTSD is a ‘bad thing’ or an infringement on the autonomy of personhood of soldiers, sailors, marines, or airmen. That’s a defensive, precautionary, medical application.

What about using a neurochemical as a cognitive enhancement to enable soldiers and marines in the ‘fog of war’ to make better decisions? Stress, sleep deprivation, lack of food, etc have been shown to have *extremely* deleterious effects on decision-making. Some folks get hung up on the term “cognitive enhancement;” caffeine is a potent cognitive enhancement that the Army, Navy, & Air Force use in multiple forms. In this hypothetical application one might argue that enabling more rational decision-making in the ‘fog of war’ – especially in asymmetric, urban conflicts – would reduce the likelihood unintended targeting of civilians. One can also imagine less desirable implications.

Think it’s important to be cognizant of history – it may not be predictive, but it should not be ignored either. Thanks for the links and the thread.

VR/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[downwardspiral 0]

Hi nerdgirl!

I posted this thread expecting a low turn out and I was right. In the light of what our founding fathers had to say, as well as state constitutions at the time, it simply cannot be argued the 2nd Amendment right is for members of the militia only.

However, Lucky was right w/r/t "well regulated." At least prior to the Heller decision since William Rawle, a notable lawyer of the time, said this in 1829....

Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

Also it can be found with in the links that prohibition of concealed weapons is not unconstitutional except for travelers. So Scalia is correct to say the 2nd Amendment is not unlimited which I agree with. However, in the case of California, which has the most strict gun laws short of an all out ban, it can be argued the state is very much within constitutional rights based on Scalia's statement. Unfortunately these laws, which are in line with the Federal Assault Weapon Ban of the Clinton era, are ridiculous and only serve, conspiciously so, to disarm the public. Or more specifically... gangs.

What we have today, aside from the Brady Bill, is exactly what the founding fathers wanted IMO. Gun legislation for the states and not the Feds. And it will stay that way as long as the dems remember the repercussions of the Assault Weapon Ban of the 90's.
As far as the Brady Bill, I'd think the founding fathers would shit their pants more over the government's ability to do a background check on a citizen rather than the actual process of the gun purchase itself.


Oh and btw....you're welcome

www.FourWheelerHB.com