GUNS: Can one of my fellow conservatives please explain...

This oughta be interesting.... Good topic, Tim.

 

If you want to join the current debate - see this thread:

http://priuschat.com/index.php?showtopic=37350&hl=

Tim, more than happy to have you join us.

 

<div class='quotetop'>QUOTE(TimBikes @ Aug 16 2007, 09:22 PM) [snapback]497582[/snapback]</div>

Well just off the cuff . . .

I'd like to point out that the new nation did not have enough money to buy guns for the militia or a place to store them so they relied on citizens to maintain them andbring their own.

It's kind of silly to assume this new nation would not allow "the people" to own guns considering the dangerous frontier nature of the United States at the time.

The words of the founding fathers in many communications clearly state that they believed the individual should have the right to bear arms.

The sentence in question is divided by a comma and although the initial concept is the desire to have militia's a comma is placed between the two concepts of forming militia’s and the right to own guns. The word "People" is inserted instead of state, militia or some other organization/body to specifically confer the right of ownership of guns to individuals.

According to a rather far left liberal on this board we are losing our basic rights at an alarming rate, so don't you think it a good idea to own a gun?


Wildkow

 

Tim, look at the rest of the Bill of Rights and tell me if the phrase "the people" is ever used to denote "the State". Or if you find the language to be consistent, that when the first Amendments refer to individuals, they use the phrase "the people".

Otherwise, only the States would have freedom of speech. Only the states would have all rights not enumerated in the Constitution reserved unto them by default. But that isn't the case. "The people" means "the people". "The State" means the states.

BTW - the Brady Campaign's interpretation of the legal cases has some problems. Even liberal Prof of Con Law at Harvard says that the original intent of the Constitution's 2nd Amendment was to confer on individuals the right to have guns. They just want to change that so it doesn't apply today, and the proper way to do that is with a Constitutional Amendment.

 

The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to serve as a prerequisite for exercising the right to keep arms.

The Second Amendment preserves and guarantees an individual right for a collective purpose. That does not transform the right into a "collective right." The militia clause was a declaration of purpose, and preserving the people's right to keep and bear arms was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment was intended to apply solely to active militia members.

"What the subcommittee on the Constitution uncovered was clear -- and long-lost proof that the Second Amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for the protection of himself, his family, and his freedom." - Senator Orrin Hatch, Chairman, Subcommittee on the Constitution, Preface, "The Right to Keep and Bear Arms"

"A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." (Richard Henry Lee, Additional Letters from the Federal Farmer (1788) at 169)

"No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison, The Federalist Papers #46 at 243-244)

"The best we can hope for concerning the people at large is that they be properly armed." (Alexander Hamilton, The Federalist Papers at 184-8)

"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)

 

The amendment went through several changes as it made it's way through the House and Senate:

On August 17, that version was read into the Journal:

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 person religiously scrupulous shall be compelled to bear arms.

August 24 the House sent the following version to the U.S. Senate:

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.

August 25, the religious exemption portion was changed to a comma by the Senate scribe:

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.

On September 4, striking the conscientious objector clause:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed

September 9. A proposal to insert the words "For the common defence", next to the words "Bear Arms" was defeated.

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The House voted on September 21 it contained the additional words "necessary to":

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.

Seems to me that the intent was they are seperate issues that were being addressed. I know that James Madison did not intend the Bill of Rights to be numbered amendments but to just be inserted into the constitution at the relevant clauses. This was also a very revolutionary idea. I Europe at that time only a select few could have a weapon and the punishment was death for having one without permission. So letting the population have a weapons was quite a leap of faith.

My $.25

 

When ever I speak with legal eagles in relation to my work they say things like,
"If a part of an act or regulation mentions a road then any travel from there is by road. for example, if the regulations states that a driver can be directed 8 kilometres either side of a road then that distance either side of the road will be 8 kilometres by road and not as the crow flies."
Given this, as this passage says "A well-regulated Militia, being necessary to the security of a free State" one must assume the balance of the passage "the right of the people to keep and bear Arms, shall not be infringed" would also refer to the states.

What about the term "well regulated"? Don't these 2 words imply the amendment requires a good deal of regulation of the malitia there fore the guns held by that malitia?
Would the best way to regulate a malitia be to have a professional malitia?

In this day of very powerful military weapons isn't a personally owned gun really only good for hunting, sport shooting etc and crime? I have a funny feeling the US federal government would over power a state full of gun owners if that was their goal.

I should let it be known that I work as a compliance officer in road transport.

 

The framers of the Constitution understood that the check on all government, not simply the federal government, was the armed population, the militia. Government would not be accorded the power to create a select militia since such a body would become the government's instrument. The whole of the population would comprise the militia. As the constitutional debates prove, the framers recognized that the common public purpose of preserving freedom would be served by protecting each individual's right to arms, thus empowering the people to resist tyranny and preserve the republic.

What I find interesting is that people seem to think they can pick and choose which amendments to the Bill of Rights should be recognized. Civil libertarians support the individual rights recognized in the First, Fourth, Fifth, and Sixth Amendments and defend these rights against governmental abuse. Civil libertarians insist that each citizen be accorded the right to free speech, even if the citizen is a racist hate monger. Similarly, criminals can count on a vigorous defense of the fourth amendment right to be free from unreasonable searches as well as the fifth amendment right not to incriminate oneself.

Yet, in the context of the Second Amendment, civil libertarian instincts are overcome by our fear of one another. As a consequence, we find civil libertarian organizations, such as the American Civil Liberties Union (ACLU), acting as participants in such groups as the National Coalition to Ban Handguns. Indeed, the ACLU, typically at the forefront of defending individual rights against an encroaching government, takes the position that the Second Amendment protects only the state's right to an organized military--a well-regulated militia. It rejects any suggestion that the Second Amendment protects an individual right.

 

Watch this - it will explain gun control and the second amendment.

http://www.youtube.com/watch?v=CLG0GMgZAYA

 

Several have made good efforts at explaining this from the individual's right angle. However, no one has commented on the long judicial precedence set forth in Tim's opening post. I find that fascinating. Like it or not, people, we the people don't get to interpret the constitution. The only interpretation that matters in the end is that of the Supreme Court. And apparently they have decided, for the most part over the years, that there is NO inherent right for individuals to bear arms in the second amendment. You can disagree. You can take up new court cases when cities, states, or the feds try to place restrictions on gun ownership. But it all boils down to the court.

 

<div class='quotetop'>QUOTE(TimBikes @ Aug 18 2007, 09:01 PM) [snapback]498547[/snapback]</div>

No, you misunderstand my point. 1939 is a bit later than the drafting of the Bill of Rights, don't you agree? The individual right to keep and bear arms has its root in English common law dating back at least to the English Declaration of Rights in the late 1600's. It was in nearly all of the new state's constitutions and the inclusion in the federal constitution was to prevent over-reaching by the central government.

Gun issues were state issues, because the Federal government had no business interfering in the rights of individuals. The Supreme Court did mention the right to bear arms in its horrible Dred Scott decision, which shows why they didn't want "negroes" declared human: "It would give to persons of the negro race, who were recognised as citizens in any one State of the Union . . .the full liberty . . .to keep and carry arms wherever they went."

That statement by a Justice, writing in the majority, does not carry the force of law. That's important to remember whenever an advocate of anything tries to use the language in an opinion as proof of one position or another. The Brady Campaign uses a statement in Miller that same way, and they join the likes of the "Christian Reconstructionists" who point to language by Jurists that use the phrase "America is a Christian Nation". What was decided by Miller was that the Federal government could have some gun laws and could tax guns, but it didn't decide if the 2nd Amendment protected an individual right to keep and bear arms. Miller himself died before the case was heard, and no defense was presented, so the court allowed the Federal law banning tommy-guns and sawed off shotguns to stand.

The Court has not heard any gun law case pertaining to individual rights to have guns; they have heard cases regarding the state's authority to regulate and restrict certain types of guns.

The most recent case by the Appeals Court of DC struck down the handgun law there as violative of the Second Amendment's individual right to keep and bear arms ... see http://en.wikipedia.org/wiki/Parker_v._District_of_Columbia. This case is very new, and will probably see the Supreme Court take up the issue in a year or so. And it focuses on the core issue of the Second Amendment, not a peripheral issue such as taxation, transportation, or slavery.

<div class='quotetop'>QUOTE(Tyrin @ Aug 18 2007, 08:42 PM) [snapback]498541[/snapback]</div>

Wikipedia actually does a good job of presenting both sides at http://en.wikipedia.org/wiki/Second_Amendm...es_Constitution

Suffice it to say that the Brady Campaign, like the "Christian nation" folks, mis-use the language in opinions in court cases to infer that the Supreme Court has decided on the issue. In fact, they have not. They may soon, but they have not yet.

 

A simple question.
How does a large number of armed individuals constitute

?

 

<div class='quotetop'>QUOTE(Tyrin @ Aug 18 2007, 11:42 PM) [snapback]498541[/snapback]</div>

Among legal scholars, it is conventional wisdom that the Supreme Court has said almost nothing about the Second Amendment. The Supreme Court has heard only five cases directly related to the Second Amendment. They are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people," U.S. v. Verdugo-Urquidez (1990), are also discussed. (Links to the Supreme Court decisions are provided at the end of each section.)

U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.

This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution.

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."

In recent years, the Court has refused to address the issue. It routinely denies cert. to almost all Second Amendment cases. In 1983, for example, it let stand a 7th Circuit decision upholding an ordinance in Morton Grove, Illinois, which banned possession of handguns within its borders. The case, Quilici v. Morton Grove 695 F.2d 261 (7th Cir. 1982), cert. denied 464 U.S. 863 (1983), is considered by many to be the most important modern gun control case. In 2002, The Supreme Court passed up a chance to rule on the Bush administration's assertion that the Second Amendment gives individuals the right to bear firearms.
The justices refused to review two cases in which the Justice Department filed briefs asserting that right, in a departure from past administrations.

 

Swanny and Fshagan, thank you for clarifying my point. You're right, it's not that the court has decided the matter, but the fact that they have NOT means that the feds, states, and municipalities can still pass gun laws. Which means, in effect, that there is no inherent constitutional right for individual gun ownership recognized by the court, at least up to this point.

If I'm missing something, pipe up again!

 

<div class='quotetop'>QUOTE(patsparks @ Aug 19 2007, 05:04 AM) [snapback]498611[/snapback]</div>

"Well regulated" does not mean "centrally organized". For instance, we could say that with the millions of drivers in the US, we have a "well regulated" driver force in that there are regulations and laws governing things like what to do when you see a red light. But we are not centrally organized into a convoy each morning.

The Supreme Court has decided what a "well regulated militia" is ... in 1990, in Perpich v. Department of Defense, 496 U.S. 334 (1990). The Court affirmed that the "organized militia" was the National Guard, and the "reserve militia" (sometimes called the "unorganized militia") is comprised of all the rest of us. This "two militia" construct is based on laws passed by the Congress in the early 1900's, when modernization of the historical (unorganized) militia was deemed necessary. Those laws, and the laws further limiting the 2nd Amendment rights like Miller that is discussed above (which allowed the Feds to regulate certain aspects of guns, but not ownership, and to tax them).

In the past, Constitutional rights restricted what the Federal government could do to individuals or states, and laws governing individuals were left to the states. Slavery was illegal in MA, but legal in SC. States could have an established religion, and collect taxes for the official state church (as MA did up until the 1840's, IIRC). But as state power has grown, and the country has moved from "these United States" to "the United States" after our little dust-up over slavery in the 1860's, state laws are more and more subject to the protections of the federal constitution, with the Supreme Court sometimes invalidating state regulations.

The Court is hesitant to do so, however, and the dearth of decisions about the 2nd Amendment reflect that hesitancy. They usually allow the Circuit Court of Appeals decisions to stand, even if the 5th District and the 3rd District disagree. We will know the court's thinking in the next couple of years, as the DC Court of Appeals has found the 2nd Amendment to protect an individual's right to keep and bear arms to be as strong as that person's right to free speech, and the District is sure to appeal to the US Supreme Court (see Washington Post or WikiPedia's treatment of Parker v. District of Columbia .

 

<div class='quotetop'>QUOTE(Tyrin @ Aug 19 2007, 10:50 AM) [snapback]498687[/snapback]</div>

I think that's right. You could summarize it by this statement: The Supreme Court has been hesitant to overturn state and local regulations, and has allowed the Federal government to regulate interstate commerce of guns, particular features of guns, and to tax firearms.

They have even allowed the step below them, the Court of Appeals, to have different interpretations of the 2nd Amendment district by district by declining to hear cases appealed to them.

You'll find the same hesitancy in the Supreme Court's other forays into restrictions of individual rights by the states, including the right of states to outlaw things like inter-racial marriage (not overturned until 1967), sodomy laws (not overturned until 2003), etc. Some argue that the Supreme Court shouldn't overturn state laws and regulations, but since the Civil War era, the Equal Protection clause has allowed them to interfere in a state's right to keep me from marrying my black girlfriend or buggering my buddy or, perhaps soon, walking down the street with a handgun.

Parker v. District of Columbia may bring the issue to conclusion, as the DC District has struck down the DC gun control laws, and the District is appealing to the Supreme Court.

I think what we'll see is not an outright affirmation of the individual right, but a striking down of certain aspects of DC's gun laws. DC has a virtual gun ban in the district, with all hand guns barred unless they were purchased and registered before 1976. You can find the decision on-line, and a careful reading of it shows that the DC District is mainly concerned about the totality of the restrictions, preventing every citizen from having a gun in their home. They do not mention the right to carry a gun around town, or anything like that.

So the "wiggle room" in the DC District's decision is that the Supreme Court could support the decision and recommend the District Court and District work together for gun restrictions that will pass Constitutional muster. It is possible that the District will do that prior to the Supreme Court hearing the case, and ask for an immediate review by the District Court. If the District Court then says the new law is OK, the Supreme Court may refuse to hear the case, allowing the law to be as muddled as it now is, with different states and cities having different gun regulations.

 

<div class='quotetop'>QUOTE(Tyrin @ Aug 19 2007, 01:50 PM) [snapback]498687[/snapback]</div>

It's interesting how so many liberals interpret the Bill of Rights most broadly and flexibly and to the benefit of the individual citizen, except when it comes to the 2nd Amendment, at which point they suddenly reach for a narrow interpretation. The 1st Amendment gives you the right to express yourself. The 2nd Amendment gives you the right to defend yourself. Without the 2nd, the 1st is worthless. More to the point, without the 2nd, you really have no guarantee to ANY of the others.

Also, it is interesting to note that currently, 48 US states allow some form of concealed carry and about half provide for some variant on non-concealed "open-carry". Two states (Wisconsin and Illinois) have no provision for legal concealed-carry privileges. There are currently movements in each of these states to pass concealed-carry laws. So, it seems that the states have overwhelmingly sided with the rights of the individual to keep and bear arms.

In terms municipalities, in 2005, the voters of San Francisco passed the nation's strictest gun ban when they outlawed not only the sale of guns in the city, but required almost everyone who is not a cop, security guard or member of the military to surrender their handguns to police by April 1. On June 13, 2006, San Francisco Superior Court Judge James Warren struck down the San Francisco handgun ban, asserting that under California law local officials do not have the authority to ban firearms from law-abiding citizens.