Does the 2nd Amendment apply to the States?

[craigepo]

An obscure piece of Supreme Court law, known as the "incorporation doctrine" is about to be revisited in this case, vis-a-vis gun control.

Supreme Court scrutinizes state, local gun control

Feb 28, 12:00 AM (ET)

By MARK SHERMAN
WASHINGTON (AP) - Gun control advocates think, if not pray, they can win by losing when the Supreme Court decides whether the constitutional right to possess guns serves as a check on state and local regulation of firearms.

The justices will be deciding whether the Second Amendment - like much of the rest of the Bill of Rights - applies to states as well as the federal government. It's widely believed they will say it does.

But even if the court strikes down handgun bans in Chicago and its suburb of Oak Park, Ill., that are at issue in the argument to be heard Tuesday, it could signal that less severe rules or limits on guns are permissible.

The Brady Center to Prevent Gun Violence is urging the court not to do anything that would prevent state and local governments "from enacting the reasonable laws they desire and need to protect their families and communities from gun violence."

By some estimates, about 90 million people in the U.S. own a total of some 200million guns.

Roughly 30,000 people in the United States died each year from guns; more than half of them are suicides. An additional 70,000 are wounded.

The new lawsuits were begun almost immediately after the court's blockbuster ruling in 2008 that struck down the District of Columbia's handgun ban. In that case, the court ruled for the first time that individuals have a right keep guns for self-defense and other purposes. Because the nation's capital is a federal enclave, that ruling applied only to federal laws.

The challenges to the Chicago area laws, which are strikingly similar to the Washington law, are part of an aggressive push by gun rights proponents in the courts and state legislatures.

Courts are considering many gun laws following the justice's 2008 decision. Massachusetts' highest state court is examining the validity of a state law requiring gun owners to lock weapons in their homes.

Two federal appeals courts have raised questions about gun possession convictions of people who previously had been convicted of domestic violence misdemeanors. A suit in Washington challenges the capital's ban on carrying loaded guns on public streets.

Lawmakers in several states are pushing for proposals favored by the National Rifle Association and other gun rights groups. The Virginia Legislature is considering repealing a law that limits handgun purchases to one a month. That law was enacted in 1993 because Virginia was the No. 1 supplier of guns used in crimes in other states. A separate proposal in Virginia would allow people with a concealed-weapon permit to take hidden guns into restaurants that sell alcohol, as long as those patrons don't drink.

Chicago is defending its gun laws at the high court. Mayor Richard Daley said a ruling against his city would spawn even more suits nationwide and lead to more gun violence.

"How many more of our citizens must needlessly die because guns are too easily available in our society?" Daley said at a Washington news conference last week that also included the parents of a Chicago teenager who was shot on a bus as he headed home from school.

Annette Nance-Holt said her only child, 16-year-old Blair Holt, shielded his friend when a gang member boarded a bus and began shooting at rival gang members.

"You might ask, 'What good is Chicago's handgun law if so many of our young people are still being shot?'" Nance-Holt said. "All I can say is, imagine how many more would be if the law were not there."

Gun rights advocates say such killings should serve as reminders that handgun bans and other gun laws do nothing to protect people who obey the law.

Indeed, 76-year-old Otis McDonald said he joined the suit in Chicago because he wants a handgun at home to protect himself from gangs.

The thrust of the legal arguments in the case is over how the Supreme Court might apply the Second Amendment to states and cities.

In earlier cases applying parts of the Bill of Rights to the states, the court has done so by using the due process clause of the 14th Amendment, passed in the wake of the Civil War to ensure the rights of newly freed slaves.

The court also has relied on that same clause - "no state shall deprive any person of life, liberty or property without due process of law" - in cases that established a woman's right to an abortion and knocked down state laws against interracial marriage and gay sex.

This is the approach the NRA favors.

But many conservative and legal scholars - as well as the Chicago challengers - want the court to employ another part of the 14th amendment, forbidding a state to make or enforce any law "which shall abridge the privileges or immunities of citizens of the United States."

They argue this clause was intended as a broad guarantee of the civil rights of the former slaves, but that a Supreme Court decision in 1873 effectively blocked its use.

Breathing new life into the "privileges or immunities" clause might allow for new arguments to shore up other rights, including abortion and property rights, these scholars say.

This approach might enable challenges to arcane state laws that limit economic competition, said Clark M. Neily III of the public interest law firm Institute for Justice. He pointed to a Louisiana law that protects existing florists by requiring a license before someone can arrange or sell flowers. The licensing exam is graded by florists, he noted.

"No reasonable person thinks that law has a legitimate purpose," Neily said. But he said, "Right now, once you get a law like this on the books, it's almost impossible to get rid of."

The case is McDonald v. Chicago, 08-1521.

http://apnews.myway.com/article/20100228/D9E4VH083.html

[armymom1228]

YOUR opinion your honor?
AM

[Richard]

http://www.scotusblog.com/2010/02/second-amendment-drama-act-ii/

[craigepo]

Here is a link to the friend-of-the-court brief filed by 33 states, in support of the NRA-esque position. You can check to see how your attorney general is representing you in the supreme court.

http://alicemariebeard.com/law/Amicus_for_Cert_AGs.pdf

[armymom1228]

NRA link and commentary. (http://www.nraila.org/legislation/read.aspx?id=5486)

[Richard]

First link in the SCOTUSBlog (Post # 3):

http://www.scotuswiki.com/index.php?title=McDonald_v._City_of_Chicago

All the reading one can want - guess nobody reads anymore.

Richard

[armymom1228]

First link in the SCOTUSBlog (Post # 3):

http://www.scotuswiki.com/index.php?title=McDonald_v._City_of_Chicago

All the reading one can want - guess nobody reads anymore.

Richard

Sir you forgot to hand out the syllabus....:D

[Richard]

Forgot to hand out the syllabus....:D

It's a long syllabus - OBTW - Sa in ch'ool. :p

Richard

[armymom1228]

- Sa in ch'ool. :p

Richard

One would think some of these 7th groupers around this joint would have figured out my sig line before now.. :munchin

[Pete]

Interesting take on US vs Miller

http://volokh.com/2010/02/27/united-states-v-miller/

"..............So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.

All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored......................"

[GratefulCitizen]

The State of Washington isn't bothering to wait for Washington D.C.:
http://www.saf.org/viewpr-new.asp?id=313

[MatthewD44]

Now that is just pure awesome... hope that some one in Montgomery is looking at this one also

[GratefulCitizen]

Always found the 61st clause of the Magna Carta interesting when considering the Founders' intent for the 2nd amendment.

The Founders were probably aware of their own history.


61. Inasmuch as, for the sake of God, and for the bettering of our realm, and for the more ready healing of the discord which has arisen between us and our barons, we have made all these aforesaid concessions,--wishing them to enjoy for ever entire and firm stability, we make and grant to them the folIowing security: that the baron, namely, may elect at their pleaure twenty five barons from the realm, who ought, with all their strength, to observe, maintain and cause to be observed, the peace and privileges which we have granted to them and confirmed by this our present charter. In such wise, namely, that if we, or our justice, or our bailiffs, or any one of our servants shall have transgressed against any one in any respect, or shall have broken one of the articles of peace or security, and our transgression shall have been shown to four barons of the aforesaid twenty five: those four barons shall come to us, or, if we are abroad, to our justice, showing to us our error; and they shall ask us to cause that error to be amended without delay. And if we do not amend that error, or, we being abroad, if our justice do not amend it within a term of forty days from the time when it was shown to us or, we being abroad, to our justice: the aforesaid four barons shall refer the matter to the remainder of the twenty five barons, and those twenty five barons, with the whole land in common, shall distrain and oppress us in every way in their power,--namely, by taking our castles, lands and possessions, and in every other way that they can, until amends shall have been made according to their judnnent. Saving the persons of ourselves, our queen and our children. And when amends shall have been made they shall be in accord with us as they had been previously. And whoever of the land wishes to do so, shall swear that in carrying out all the aforesaid measures he will obey the mandates of the aforesaid twenty five barons, and that, with them, he will oppress us to the extent of his power. And, to any one who wishes to do so, we publicly and freely give permission to swear; and we will never prevent any one from swearing. Moreover, all those in the land who shall be unwilling, themselves and of their own accord, to swear to the twenty five barons as to distraining and oppressing us with them: such ones we shall make to wear by our mandate, as has been said. And if any one of the twenty five barons shall die, or leave the country, or in any other way be prevented from carrying out the aforesaid measures,--the remainder of the aforesaid twenty five barons shall choose another in his place, according to their judgment, who shall be sworn in the same way as the others. Moreover, in all things entrusted to those twenty five barons to be carried out, if those twenty five shall be present and chance to disagree among themselves with regard to some matter, or if some of them, having been summoned, shall be unwilling or unable to be present: that which the majority of those present shall decide or decree shall be considered binding and valid, just as if all the twenty five had consented to it. And the aforesaid twenty five shall swear that they will faithfully observe all the foregoing, and will caue them be observed to the extent of their power. And we shall obtain nothing from any one, either through ourselves or through another, by which any of those concessions and liberties may be revoked or diminished. And if any such thing shall have been obtained, it shall be vain and invalid, and we shall never make use of it either through ourselves or through another.

[craigepo]

The Second Amendment’s Reach
March 1, 2010
Two years ago, the Supreme Court struck down parts of the District of Columbia’s gun-control law. On Tuesday, the court will consider whether that decision should apply everywhere in the country, not just in the federal territory of the nation’s capital.

We disagreed strongly with the 2008 decision, which took an expansive and aggressive view of the right to bear arms. But there is an even broader issue at stake in the new case: The Supreme Court’s muddled history in applying the Constitution to states and cities. It should make clear that all of the protections of the Bill of Rights apply everywhere.

McDonald v. Chicago is a challenge to a law that makes it extremely difficult to own a handgun within Chicago’s city limits. The challengers rely on the court’s 5-to-4 ruling in 2008, which recognized an individual right under the Second Amendment to carry guns for self-defense. But that decision left open an important question. The Bill of Rights once was largely thought to be a set of limitations on the federal government. Does the right to bear arms apply against city and state governments as well?

Since states and localities do far more gun regulation than the federal government, the court’s answer will have a powerful impact. The United States Court of Appeals for the Seventh Circuit, in Chicago, relying on 19th-century precedents, ruled that the Second Amendment does not apply to states and cities.

Under the doctrine of “selective incorporation,” the Supreme Court has ruled on a case-by-case basis that most, but so far not quite all, of the Bill of Rights applies to states and cities. The court should dispense with the selectivity and make clear that states and cities must respect the Bill of Rights.

To justify incorporation, the court has relied on the 14th Amendment, which was enacted after the Civil War to ensure equality for newly freed slaves. The amendment has two relevant clauses: the due process clause that requires government to act with proper respect for the law, and the privileges or immunities clause, which is more focused on protecting substantive individual rights.

The logical part of the amendment to base incorporation on is the privileges or immunities clause, but a terrible 1873 Supreme Court ruling blocked that path and the court has relied since then on the due process clause.

A group of respected constitutional scholars and advocates is asking the court to switch to the privileges or immunities clause as the basis for applying the Bill of Rights to states and cities. That would be truer to the intent of the founders, and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.

It is unlikely that the court will delve directly into the gun issues. If it decides to apply the Second Amendment to cities, it would probably send the case back to a lower court to evaluate the Chicago law. If that happens, the justices should guide the court in a way that makes clear that reasonable gun restrictions will still be upheld.

The Supreme Court’s conservative majority has made clear that it is very concerned about the right to bear arms. There is another right, however, that should not get lost: the right of people, through their elected representatives, to adopt carefully drawn laws that protect them against other people’s guns.

http://www.nytimes.com/2010/03/02/opinion/02tue1.html?th&emc=th

[The Reaper]

I just wonder what other Amendments could be limited or banned by states and local governments.

I seriously doubt that the ACLU or the lower courts would buy into, say Chicago deciding that your 1st (or 4th, 5th, etc.) Amendment rights could be limited there, much less completely banned.

Our Bill of Rights apply to every citizen of this country equally, do they not?

TR

[Pete]

I just wonder what other Amendments could be limited or banned by states and local governments.......

The 1st is getting trampled all over by Hate Speech laws and PC laws pushed in colleges.

[craigepo]

Our Bill of Rights apply to every citizen of this country equally, do they not?

TR

Short Answer--No.

The only amendments from the bill of rights that apply to the states are those that have been so deemed by the Supreme Court, via the Incorporation Doctrine. For example, I believe that the 3rd Amendment has not yet been applied to the states. So, could Missouri force citizens to house state soldiers without compensation? As of now, yes.

And, as of now, the 2nd Amendment has not yet been applied/"Incorporated" by the Supreme Court to the states either. That is the issue in this Chicago case. If the 2nd Amendment does not apply to the states, the city of Chicago, or state of Illinois, can do whatever they want regarding gun control, because the 2nd Amendment does not apply to them, only to the Federal government.

IMHO, the Supreme Court's selective incorporation of only select amendments of the bill of rights smacks of judicial legislation. However, many supreme court observers are predicting that this selective "Incorporation Doctrine" will be stricken in this case. Probably/possibly, the result will be that every amendment from the Bill of Rights will now apply to the States.

However, predicting what the Supreme Court will do is a very inexact science.

[Sigaba]

The 1st is getting trampled all over by Hate Speech laws and PC laws pushed in colleges.

Should academic institutions (private or public) have the discretion to limit what types of speech may and may not be had on their premises? :confused:

Back in the 1990s, a certain university in southern California forbade activists from having pro-union demonstrations on campus just as it would not allow religious activists to seek converts.

IMO, these policies were vastly superior to the 'anything goes' approach at the flagship campus of the University of California system.

[rubberneck]

Short Answer--No.

The only amendments from the bill of rights that apply to the states are those that have been so deemed by the Supreme Court, via the Incorporation Doctrine. For example, I believe that the 3rd Amendment has not yet been applied to the states. So, could Missouri force citizens to house state soldiers without compensation? As of now, yes.

And, as of now, the 2nd Amendment has not yet been applied/"Incorporated" by the Supreme Court to the states either. That is the issue in this Chicago case. If the 2nd Amendment does not apply to the states, the city of Chicago, or state of Illinois, can do whatever they want regarding gun control, because the 2nd Amendment does not apply to them, only to the Federal government.

IMHO, the Supreme Court's selective incorporation of only select amendments of the bill of rights smacks of judicial legislation. However, many supreme court observers are predicting that this selective "Incorporation Doctrine" will be stricken in this case. Probably/possibly, the result will be that every amendment from the Bill of Rights will now apply to the States.

However, predicting what the Supreme Court will do is a very inexact science.

Far be it for me to speak for the Reaper but I believe that was a rhetorical question. The first nine rights in the Bill of Rights should have been incorporated to the states the day it was ratified, as that was the intention of the 14th Amendment.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The Supreme Court in the Slaughterhouse case decided that the plain meaning of the phrase and the clear intentions of the 14th Amendment didn't mean what it really meant. The result is that it has taken almost 140 years to get most of the Bill of Rights applied to the states. Hopefully the second amendment will take it's rightful place among the other incorporated rights shortly.

[rubberneck]

IMO, these policies were vastly superior to the 'anything goes' approach at the flagship campus of the University of California system.

I disagree. If there is any place where the free exchange of ideas is to be promoted and protected it should be at institutions of higher learning. Sadly, it appears that only the ideas held dear by the left in this country are immune from the campus thought police.

[Pete]

Should academic institutions (private or public) have the discretion to limit what types of speech may and may not be had on their premises? :............

Anything that the institution wishes to write down is fine with me - as long as it is applied to all.

But it would seem that "Free Speech" only applies to the PC crowd.

[Roguish Lawyer]

Oral argument transcript here (http://www.nraila.org/media/PDFs/litigation/08_1521scotustrans.pdf).

[Pete]

Oral argument transcript here (http://www.nraila.org/media/PDFs/litigation/08_1521scotustrans.pdf).

Ginsburg - just had to get her free societies that rejected guns - world view - into an argument about our constitution.

[Streck-Fu]

From my understanding, the Bill of Rights were only included as amendments at the insistence of the Anti-Federalists like Patrick Henry who were concerned about a strong central government encroaching on the states sovereignty.
The Federalists opposed the inclusion of a Bill of Rights as they considered the Constitution, as a document defining and limiting the federal government, enough to protect those rights. They thought the rights natural and assured and that the people would never allow them to be abridged or denied.

Since the Constitution defined what the federal government could NOT do and the Bill of Rights are meant to protect those specific rights addressed, it has no direct bearing on the states. The states powers are defined by their constitutions and if the citizens of those states allow their legislators to restrict their liberties, that is up to them.

I think the the 14th Am was an effort to assert the rights in the Bill of Rights as natural rights that cannot be restricted by the states. And, in my opinion, goes against the intent of the Constitution as the federal government is then asserting power over the states even if in the name of protecting liberty.

[steel71]

I think it's a poor argument, our rights are unalienable, given by our (your) creator. One of the primary reasons the US government was created was protect those Unalienable rights, to ensure the states don't violate people's unalienable rights. I wish we could start transferring our lovely law schools to China: they would be destroyed within the next 100 years, easy, not a shot fired...:cool:

[Streck-Fu]

One of the primary reasons the US government was created was protect those Unalienable rights, to ensure the states don't violate people's unalienable rights.

Not at all. The central (Federal) government was created to be the voice of the collection or Union of states. The individual states were meant to be the principle government of their citizens with the Federal government only seeing to business that was common to all of the states.

The federal government was certainly not created to protect the citizens from the states.

The 2nd Am, actually just the idea of an individual's right to be armed, should be undeniable. However, the 2nd Am as written into the Constitution has nothing to do with the states because the the Constitution only defines the powers of the federal government; nothing more.

[craigepo]

The 2nd Am, actually just the idea of an individual's right to be armed, should be undeniable. However, the 2nd Am as written into the Constitution has nothing to do with the states because the the Constitution only defines the powers of the federal government; nothing more.

Maybe. Until the 14th amendment was passed.

[armymom1228]

Exactly. This case could set a precidence for say the first amendment in that state and local govt can control the media. A scary thing if you think about it.

I doubt that the 1st Amendment can be attacked much further.
MSM has tested and retested continously that boundry and won each time.

It is easily argued that the Due process clause in the 14th amendment.
Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.

Will uphold the rights garunteed by the 2nd amendment.

In this case a city wishes to take away the right garunteed by the 2nd amendment. In Heller vs Washington, SCOTUS upheld that right on the Federal level. I believe it is easily argued that under 'due process' garunteed in the 14th amendment that the Justices have little choice but to uphold my 2nd Amendment rights on the state level as they have on the Federal level.

Of course I could be wrong, its just my non lawyer civilian opinion.

AM:munchin

[armymom1228]

Justices lean to extending gun owners' rights

By Joan Biskupic, USA TODAY
WASHINGTON — During spirited arguments Tuesday, the Supreme Court appeared ready to rule that the Second Amendment right to bear arms covers gun regulations in states and cities.
Several key justices, including Anthony Kennedy, signaled they believe the right to firearms is sufficiently "fundamental" that it should cover people challenging state and local gun laws, as well as federal laws.

Such a decision expanding the reach of the Second Amendment likely would set off new rounds of lawsuits targeting specific regulations across the country.

Tuesday's arguments in a dispute over a Chicago handgun ban flowed from a 2008 ruling in which the Supreme Court said for the first time that the Second Amendment protects an individual's right. The prevailing judicial view had been that it covers a collective right of state militia, such as a National Guard.


That 2008 case, District of Columbia v. Heller, applied only to laws by the U.S. government and its federal enclaves, such as Washington. Tuesday's case tested whether the right to bear arms is so fundamental to liberty that it also protects people against state and local laws.

The city of Chicago says the answer is no and that the Second Amendment significantly differs from other constitutional provisions because it is associated with dangerous weapons.

Justice Kennedy, who was in the majority in the 5-4 ruling in 2008 and is often a swing vote, said, "If (the right to bear arms) is not fundamental, then Heller is wrong." Kennedy said he believed the 2008 case rested on individuals' fundamental right to firearms.

Chief Justice John Roberts agreed, saying, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers (of the Constitution) in their view of what liberty meant."

Justice Stephen Breyer, who dissented in Heller, was most vigorous in asserting that the Second Amendment should not be accorded the same status as other rights. "We are starting with a difference in purposes at the least," he said, suggesting that the right to weapons cannot be equated with free speech, for example. "Even if (city officials) are saving hundreds of lives, they cannot ban (guns)?" Breyer asked, skeptically.

Justice John Paul Stevens, who also dissented in Heller, suggested by his questions that the Second Amendment right should be limited in the states and that local legislators should have wide latitude to curtail firearms.

Chicagoans challenging the handgun ban include Otis McDonald, who lives on the city's far South Side and says he wants a handgun to protect his family.

Virginia lawyer Alan Gura, who was the lead lawyer in the 2008 case and represents McDonald, spent most of his time Tuesday arguing for specific legal grounds on which the Second Amendment would extend to states.

The Supreme Court has "incorporated" most of the first 10 amendments to the Constitution — the Bill of Rights — to apply to the states through a provision of the 14th Amendment that says no state shall infringe on "life, liberty or property without due process of law."

Yet Gura argued the court should extend the Second Amendment through a separate clause that says, "No state shall … abridge the privileges or immunities of citizens of the United States." His rationale, which would reverse past court rulings, received a chilly reception from many of the justices, including Antonin Scalia. Gura said in his brief that such grounds would "honor the 14th Amendment's true meaning."

Paul Clement, a former U.S. solicitor general under President George W. Bush, represented the National Rifle Association and urged the justices to rely on the 14th Amendment's due process guarantee for broader gun rights.

Defending Chicago's handgun ban, lawyer James Feldman said the right to bear arms is not fundamental, as is the right of free speech or free religious exercise. "Firearms, unlike anything else that is a subject of the Bill of Rights, are designed to injure or kill," he said.



Source for article is here. (http://www.usatoday.com/news/washington/2010-03-02-court-guns_N.htm?csp=34&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+usatoday-NewsTopStories+%28News+-+Top+Stories%29&utm_content=My+Yahoo)

I guess then I will be able to go hunting wascally wabbits huh?

[Streck-Fu]

Maybe. Until the 14th amendment was passed.

I mentioned that above:


I think the the 14th Am was an effort to assert the rights in the Bill of Rights as natural rights that cannot be restricted by the states. And, in my opinion, goes against the intent of the Constitution as the federal government is then asserting power over the states even if in the name of protecting liberty.

I absolutely agree that there should be no laws restricting the ownership of firearms at any level. But, as written, the 2nd Am only applies to the federal government and the 14th actually breaks from the intent of the Constitution by asserting the federal government over the states....

[Richard]

I absolutely agree that there should be no laws restricting the ownership of firearms at any level.

I disagree.

Richard's $.02 :munchin

[Streck-Fu]

I disagree.

Richard's $.02 :munchin

I was negligent in qualifying that opinion....still working on the coffee :) . I have no problem with with restrictions on people who are convicted of violent crimes but there should be no restrictions on law abiding citizens.

[Richard]

...but there should be no restrictions on law abiding citizens.

I disagree.

Richard's $.02 :munchin

[Streck-Fu]

I disagree.

Richard's $.02 :munchin

I would like to hear your position.

Do you mean to support restrictions on types of weapons? And would those restrictions be defined by the federal or state governments?



The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms.



Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense?

[craigepo]

StreckFu---Do you believe that an M1 Abrams tank is an "arm" under the 2nd Amendment?

[Streck-Fu]

StreckFu---Do you believe that an M1 Abrams tank is an "arm" under the 2nd Amendment?

I'll say no.....but from a practical and realistic perspective rather than strict interpretation of the 2nd.

Men serving in the militia would bring their own weapons and I don't recall farmers and merchants binging field artillery that they owned.... :D


From a more literal perspective, asking if the 2nd Am applies to M1 Abrams is like asking if the 1st Am applies to television and the internet....

The intention was to ensure that the people had the means to protect themselves from an oppressive government or tyrant. It doesn't seem to be a leap of faith for that to mean that they should have access to whatever technological advancements are created.

[craigepo]

StreckFu
I'll ask another question. If we grant that the 2nd amendment is an individual right, and the 2nd amendment is intended to protect the ability of our citizens to form a militia, what "arms" are constitutionally protected? What should be the standard for determining whether a weapon should be allowable as a proper "militia" weapon for constitutional protection?

[The Reaper]

StreckFu---Do you believe that an M1 Abrams tank is an "arm" under the 2nd Amendment?

Slippery slope, your honor.

No M1 Abrams? Why not, if you could afford to buy one?

Why would the same logic not apply to a M-2 .50 BMG?

And that logic apply to an M-1 Garand?

And that to a .22 LR?

Where/how do you draw the line, and stay within the intent of the 2nd Amendment?

TR

[Pete]

.... What should be the standard for determining whether a weapon should be allowable as a proper "militia" weapon for constitutional protection?

I'd say if the drug dealers and gang bangers can get that weapon and travel around the cities shooting up the honest folks then the honest folks should be allowed to buy them legally.

So how about the Feds starting with the law breakers not the law followers.

"Protect and Serve"? Not hardly. The courts have upheld the rule that "Protection" is not required of Law Enforcement.

[Streck-Fu]

StreckFu
I'll ask another question. If we grant that the 2nd amendment is an individual right, and the 2nd amendment is intended to protect the ability of our citizens to form a militia, what "arms" are constitutionally protected? What should be the standard for determining whether a weapon should be allowable as a proper "militia" weapon for constitutional protection?

The citizens should have the same means/arms as the oppressive force.

And why use 'if' the 2nd is an individual right and put quotes around militia? I am not a lawyer and admit to reading more history than law.

{edited to add} I wanted to make sure I had the quote correct and looked it up.... this is the 2nd Am as proposed by Madison to Congress:
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

[Pete]

The citizens should have the same means/arms as the oppressive force.

And why use 'if' the 2nd is an individual right? Are you a lawyer? I am not and admit to reading more history than law.

Streck-Fu - you need to look at people's profiles sometimes.

[Streck-Fu]

Streck-Fu - you need to look at people's profiles sometimes.

WILCO. Sorry for the lack of diligence.

[GratefulCitizen]

Slippery slope, your honor.

No M1 Abrams? Why not, if you could afford to buy one?

Why would the same logic not apply to a M-2 .50 BMG?

And that logic apply to an M-1 Garand?

And that to a .22 LR?

Where/how do you draw the line, and stay within the intent of the 2nd Amendment?

TR

Constitution, article one, section 8, tenth on the list of enumerate powers:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

How would a privateer execute a letter of marque if they weren't allowed the appropriate arms?
Would they be required to turn over their cannon upon returning to an American port?

Honestly don't know.
Maybe Sigaba can shed some light.

[armymom1228]

Constitution, article one, section 8, tenth on the list of enumerate powers:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

How would a privateer execute a letter of marque if they weren't allowed the appropriate arms?
Would they be required to turn over their cannon upon returning to an American port?

Honestly don't know.
Maybe Sigaba can shed some light.

I am not a privateer... and never had a letter of Marque..but I do own a cannon. My opinion. No they would not.. Besides you are now delving into Maritime Law, which is considerably different than Land Law and a much more slippery slope and open to a lot of interpretation.

[Sten]

Constitution, article one, section 8, tenth on the list of enumerate powers:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

How would a privateer execute a letter of marque if they weren't allowed the appropriate arms?
Would they be required to turn over their cannon upon returning to an American port?

Honestly don't know.
Maybe Sigaba can shed some light.

I can not figure out how this is related to the second amendment?

[GratefulCitizen]

I can not figure out how this is related to the second amendment?

The original statement was a response to TR's comment on purchasing a tank.

The founders didn't have tanks.
They did have warships armed with cannon.
The Constitution has a provision which implied private ownership of cannon.

[Sten]

The original statement was a response to TR's comment on purchasing a tank.

The founders didn't have tanks.
They did have warships armed with cannon.
The Constitution has a provision which implied private ownership of cannon.

So you can have an M1 when you get a Letter of Marque.

[GratefulCitizen]

So you can have an M1 when you get a Letter of Marque.

This would follow the line of thinking where privateers turn over their cannon upon returning to port.

It also brings up the issue about where the line gets drawn when comparing the people (unorganized militia) and PMCs.

Turning over a privately owned weapon to your government is an act of surrender.
Either the government is subject to the people, or the people are subject to the government.

The letter of marque issue may shed light on the Founders intent for the 2nd amendment.

[Pete]

So you can have an M1 when you get a Letter of Marque.

You have to have the M1 before you get the Letter of Marque.

Chicken & Egg thing.

[Sten]

Letters of Marque are always to be executed outside of the nations borders so I would assume once a Marque returned from international waters the "ownership" of the war supplies reverted to the country that issued the letter.

You have to have the M1 before you get the Letter of Marque.

Chicken & Egg thing.

I have my opening argument to my wife as to why we should buy an M1 tank now.

[Peregrino]

Letters of Marque are always to be executed outside of the nations borders so I would assume once a Marque returned from international waters the "ownership" of the war supplies reverted to the country that issued the letter.



I have my opening argument to my wife as to why we should buy an M1 tank now.

Might want to check out the Soviet tanks parked in the woods. A lot cheaper, probably easier to maintain (buy several and cannibalize as required), designed to be operated by "less sophisticated" crew/maintainers, and probably very effective in the hands of trained, motivated crew.

FWIW - the ownership of the war materials stayed with the private individual/corporation. Privateers were usually a joint moneymaking proposition between an entrepreneur and a government with whom he chose to ally. Hard to sell your services without a credible "warship". Besides - prudent merchantmen armed themselves as defense against armed threats; a fact that significantly predates any considerations of "2nd Ammendment" rights. Self defense is an inalienable right. Determining the tools permitted to exercise that right is not the business of "third parties", e.g. governments. This is a mostly military audience - what is so hard to understand about threat analysis and instituting appropriate mitigation/escalation to increase potential for success/survival? Yes - that's a little hyperbole; but only a little.

[Streck-Fu]

Which begs the question, how could the various gun control legislations pass Supreme Court muster and why do so many law schools teach the 'collective' right perspective?

IMO, it is a result of manipulating the text of the 2nd Am while ignoring all the historical documentation supporting an individual intent.

[Sigaba]

Constitution, article one, section 8, tenth on the list of enumerate powers:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

How would a privateer execute a letter of marque if they weren't allowed the appropriate arms?
Would they be required to turn over their cannon upon returning to an American port?

Honestly don't know.
Maybe Sigaba can shed some light.Goodness gracious, GC.

You picked an odd time to activate bad memories of the worst paper I ever wrote "'Republican?' Privateers.":o I can only hope that there are no remaining copies of that document in any form. Having spent several moments consoling my inner child, suppressing yet more memories of the early 1990s ("Stop / Hammer time!") and cursing the biddy who taught the class ("Why would anyone study naval history?"#), I shall now answer your question, if only partially. But absolutely indirectly and longwindedly--to paraphrase Indiana Jones, "Hey, it's me!:D).

Americans had little fear of the tools of naval warfare becoming an instrument of governmental oppression. In 1786, Jefferson wrote in a letter to John Adams. Every national citizen must wish to see an effective instrument of coercion, and should fear to see it on any other element but the water. A naval force can never endagner our liberties, nor occasion bloodshed; a land force would do both.*
The following year, Benjamin Workman, probably the anti-Federalist who used the sobriquet of Philadelphiensis, wrote: "There is not the most distant hope, that we shall ever have a navy under this constitutions which annihilates the state governments[.][/QUOTE]This view contrasts starkly with Workman's preceding point that a standing army "will have other fish to fry than fighting a foreign enemy; there is work enough cut out for them of a domestic nature." Indeed, Workman thought that the proposed Constitution would limit the growth of America's navy. In his vision of American sea power, the individual sovereign states would contribute vessels based upon their own resources.**

Consequently, while the debates over the Constitution and the Bill of Rights often focused on the military power of federal state as an instrument of tyranny, discussions over naval policy were largely (if not primarily) driven by strategic considerations. Consequently, while many disagreed on many issues centering around the powers of a federal government, they were in general agreement over the advantages of having a viable naval force.***

In terms of the structure of that force, there were (and remains) differing schools of thought. Some (INCORRECTLY!) believed that commerce raiding was the most efficacious naval strategy. Jefferson, who favored a 'gun boat' navy, opposed an ocean-going navy similar to England's on the grounds of cost, its potential to create an inefficient bureaucracy, and create an aristocratic officer corps that would have anti-democratic values.**** In this group was a subset believed that privateering was an effective and profitable way to attack enemy shipping. (The historiographical debate on this point, especially in relation to the War of 1812, continues.)

Then there were those who (CORRECTLY:p) believed that the proper role of a navy is to establish command of the seas and that command of the seas could only be secured by having ocean-going fleets of warships that could engage and destroy opposing fleets in decisive engagements.

So while your question of the relationship between the granting of letters of marque and the arming of privateers in relation to the contemporaneous debates over the right to bear arms is, in my opinion, reasonable, Americans of the day seem not to have noticed the connection / tension / paradox / irony. Then again, well into the twentieth century Americans demonstrated interesting views on the power of ideas (neutrality) in relation to the power of warships.

__________________________________________________ ________
# This professor, who shall remain nameless (Marilyn Baseler), had considerable hostility towards naval history and all things related to the navy. I think it had less to do with politics than with the fact that her husband was a naval engineer who was working on the Seawolf (SSN-21) and had remained in New England while she relocated to Texas to take a job.
* Jefferson to Adams as quoted in Merrill D. Peterson, Thomas Jefferson and the New Nation (New York: Oxford University Press, 1970; reprint, Norwalk, CT: The Easton Press, 1987), 314.
** Philadelphiensis [Benjamin Workman], "This Monster, This Colossus of Despotism," Freeman's Journal, 12 December 1787, as printed in Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, part I (New York: Library of America, 1993), 497, 496.
***See, for example, Federalist numbers #2-#5. It is noteworthy that the work cited in note **, above, does not reprint these contributions by John Jay. Fortunately, they available here (http://www.constitution.org/fed/).)
**** This summary draws from Paolo Coletta, The American Naval Heritage, fourth ed. (Lanham, MD: University Press of America, 1997), 27-28. While one could lump these reservations under the general fear of an oppressive, tyrannical federal government, I am of the view that Jefferson and others were making a distinctly different argument. YMMV.

[TF Kilo]

Richard, I'd also like to hear your position with regards to restrictions that are acceptable.

I do support the tax stamp requirement for "heavier duty" weapons with a larger propensity for damage. I do not think that we should be restricted in those purchases to used weaponry, we should be able to buy new weaponry. I think if you have the money you should be able to buy a stryker!

Have fun with that Abrams or Stryker when you want to drive it on the street! You lose a track pad and you're getting ticketed up here for driving on a public roadway with metal contacting the road face... Oh, you don't have a pilot car? Where's your oversize permit? We're going to deadline you right here until you get the proper permitting and oh, by the way here's a pile of tickets and a court date. You can just leave this here until you get a tow truck to move it for you back home. Oh, wait, this has a weapon on it. You can't leave it here, it's in violation of the NFA. Guess you get to camp out on the roadside waiting for that tow truck so you maintain positive control of the weapon system. Here's a ticket for camping on the roadside.

I'm sure you can see where this can go. Most people really can't afford to feed NFA weaponry anyway. Heck, the current process for Mk19 ammunition would mean you'd have to be a billionaire to afford firing a vehicles full combat load.. not to mention how long it would take for you to end up getting a full combat load of ammunition.

How many Legal NFA firearms have been used in the commission of a crime?

[Streck-Fu]

How many Legal NFA firearms have been used in the commission of a crime?

Last I checked 1 use of a legally purchased NFA item in violent crime.

[craigepo]

What about nerve gas?

ETA: Or an Apache helicopter?

hehe. Damn I'm having fun with this.

[TF Kilo]

What about nerve gas?

hehe. Damn I'm having fun with this.

:eek: :rolleyes:

[Pete]

What about nerve gas?

hehe. Damn I'm having fun with this.

WMD - same as a sawed off shot gun (Little horned devil icon here)

[GratefulCitizen]

Why do larger weapon systems, in the hands of law-abiding citizens, represent such a threat?
The prohibition of private ownership just channels the threat to different avenues.

-1993 WTC bombings
-Oklahoma City bombings
-9/11
(Current IED techniques could easily be employed domestically.)


It's not the weapon which matters, it's mind of the person who would use the weapon.
Prohibition is an imaginary form of security.

[Streck-Fu]

hehe. Damn I'm having fun with this.


Could you elaborate on why some (most) in the legal profession interpret the 2nd Am to be a collective right in spite of the supporting documentation to the contrary.

[Animal8526]

Ownership and legal use of arms should not be restricted by any government, at all.

A violent convict... If they are so dangerous they can never be trusted with ownership of a firearm again, they should never leave prison to begin with.

Also, if out penal system is designed so that a convict "pays their debt to society" and is ultimately "reformed", then why are we treating felons as second class citizens upon release? how does that mindset substantiate either of what we state as the intended purposes of our penal system?

Also, where is there a cosmic law that says that since I have done something bad in the past, I am no longer worthy of protecting myself, or of having ones I love worthy of protecting? to believe this is true, you must believe that people cannot and do not change, and if that is the case, we should be executing all violent criminals, not attempting to "rehabilitate" them.

lastly, if the 2nd was penned for the purpose of enumerating the peoples rights to keep and bear arms in order to remain the ultimate check and balance against an oppressive government (it was), then how do we accomplish that goal by giving any validity to the government defining how you can exercise that "right"?

now, what constitutes and "arm"? while I'm not a fan of the government impressing regulations on any form of non WMD form of weapon, I think it can easily be argued that "arms" can be defined as any form of weaponry that is man portable, and likely to be used at the infantry level.

but, why shouldn't Joe citizen be able to own an M1? Joe citizen can already own M-60A1 tank... even with a reactivated main gun...

I guess this whole discussion breaks down like this... you're either a statist, or you're not.

[GratefulCitizen]

but, why shouldn't Joe citizen be able to own an M1? Joe citizen can already own M-60A1 tank... even with a reactivated main gun...

I guess this whole discussion breaks down like this... you're either a statist, or you're not.

For those with excessive disposable income:
http://www.armyjeeps.net/armor1.htm

[Streck-Fu]

For those with excessive disposable income:
http://www.armyjeeps.net/armor1.htm

I actually like the merc 4x4s...

[Animal8526]

A buddy of a buddy is selling this sucker...

http://cgi.ebay.com/ebaymotors/ws/eBayISAPI.dll?ViewItem&item=170451138076

[Streck-Fu]

A violent convict... If they are so dangerous they can never be trusted with ownership of a firearm again, they should never leave prison to begin with.

Also, if out penal system is designed so that a convict "pays their debt to society" and is ultimately "reformed", then why are we treating felons as second class citizens upon release? how does that mindset substantiate either of what we state as the intended purposes of our penal system?

Also, where is there a cosmic law that says that since I have done something bad in the past, I am no longer worthy of protecting myself, or of having ones I love worthy of protecting? to believe this is true, you must believe that people cannot and do not change, and if that is the case, we should be executing all violent criminals, not attempting to "rehabilitate" them.



I think the problem with this is that the ideal doesn't hold up to reality. Too many violent criminals do return to that behavior. Please see the thread about the California teen girl.....In spite of the claims or state objective of our penal systems, they are not very successful at rehabilitating.

Now if you want to discuss allowing non-violent felons to own guns after their sentence is served, I am open to that as there now far too many non-violent felons that are now restricted from owning a gun. Write a bad $100 check and you are now a felon....:rolleyes:

There are just too many examples of violent criminals returning to that behavior for me to support the idea of them legally buying firearms.

And, yes, I understand that almost all of those that intend to commit a crime will not bother to legally purchase a gun...

[bravo22b]

Maybe this is a bit of a stretch, but reading this thread, I couldn't help but think of the history of one of the National Guard units I have served in:

http://www.firsttroop.com/history.html

The First Continental Congress met in September 1774, in the Hall of Carpenters' Company, Philadelphia. A Committee of Correspondence was elected by the citizens of Philadelphia to determine the most effective means of resisting the British and to carry out the nonimportation resolutions of the Congress. The Committee first met on the afternoon of Thursday, November 17, 1774, in the Pennsylvania State House. That evening three of the members, together with twenty-five other gentlemen, gathered according to tradition in Carpenters' Hall and associated as the Light Horse of the City of Philadelphia, a name that was later changed to First Troop Philadelphia City Cavalry.

This purely volunteer cavalry troop was the first organized in defense of the colonies. Today the Troop is certainly the oldest mounted military unit and quite possibly the oldest military unit of any kind that has been in continuous service to the Republic. The times that called it into being, and the character of the original members who fought through the seven years of the American Revolution, together forged concepts of service and a body of tradition that have given it a continuity of purpose for 230 years.

The gentlemen of the Philadelphia Light Horse were professional men, shipowners, importers, or traders, generally of conspicuous prominence in the affairs of the day. The membership was not to confine itself to public or civil life, for many were to hold commissions in the Continental service and in the Army and Navy of the State. The Rolls of the Troop ever since have been enriched by outstanding individual records in all branches of military life.

A number of social organizations played an important part in forming the new cavalry unit. The oldest of these was the Schuylkill Fishing Company, a club that numbered many Troopers among its officers. Other organizations from which the Light Horse drew its members were the Schuylkill Company of Fort St. Davids, the St. Andrew's Society of Philadelphia, the Society of the Friendly Sons of St. Patrick, and the Society of the Sons of St. George. The Gloucester Fox Hunting Club had especial influence. The "round black hat bound with silver cord and buck's tail" and the dark brown short coat faced and lined with white worn by the Trooper of the Revolution were similar to the hunting coat and cap in which its club members rode to hounds. Captain Samuel Morris was Gloucester's first president and Captain Robert Wharton its last, and twenty-five Troopers were among its members during the War.

The associates who met on the evening of November 17, 1774, voted to equip and support themselves at their own expense and to offer their services to the Continental Congress. The company prepared for active duty by holding drills at five in the morning and five in the afternoon several times a week.

Thinking about what the Founders may have been thinking when writing the Second Amendment, it seems to me that they wouldn't have thought it that odd for a civilian to own the weapons and equipment of "modern" warfare. The members of the Philadelphia Light Horse equipped themselves with uniforms, weapons, and horses... the "tanks" of their day.

I'm not necessarily suggesting that a civilian needs or even should have an M1A1 Abrams, but it is an interesting concept.

It also occurs to me that at the time, if a civilian had the capacity to manufacture cannon, it was welcomed by the federal government, not forbidden. Good quality cannon were very hard to come by other than by capturing them from the British. I know that in this area of Pennsylvania, the iron forges spent the Revolution trying to cast good quality cannon. My great-great-great-great-great grandfather, Samuel Wheeler (also a member of the Philadelphia Light Horse), made cannon for the Continental Army.

http://mechanicsnationalbank.com/members/samuel-wheeler/

Arguably, these may have been commissioned, but I am pretty sure if he had made them on his own, he wouldn't have had his house raided in the middle of the night by the federal government.

[Animal8526]

Maybe this is a bit of a stretch, but reading this thread, I couldn't help but think of the history of one of the National Guard units I have served in:

http://www.firsttroop.com/history.html



Thinking about what the Founders may have been thinking when writing the Second Amendment, it seems to me that they wouldn't have thought it that odd for a civilian to own the weapons and equipment of "modern" warfare. The members of the Philadelphia Light Horse equipped themselves with uniforms, weapons, and horses... the "tanks" of their day.

I'm not necessarily suggesting that a civilian needs or even should have an M1A1 Abrams, but it is an interesting concept.

It also occurs to me that at the time, if a civilian had the capacity to manufacture cannon, it was welcomed by the federal government, not forbidden. Good quality cannon were very hard to come by other than by capturing them from the British. I know that in this area of Pennsylvania, the iron forges spent the Revolution trying to cast good quality cannon. My great-great-great-great-great grandfather, Samuel Wheeler (also a member of the Philadelphia Light Horse), made cannon for the Continental Army.

http://mechanicsnationalbank.com/members/samuel-wheeler/

Arguably, these may have been commissioned, but I am pretty sure if he had made them on his own, he wouldn't have had his house raided in the middle of the night by the federal government.

and him subsequently imprisoned for 10 years.

[Sten]

Arguably, these may have been commissioned, but I am pretty sure if he had made them on his own, he wouldn't have had his house raided in the middle of the night by the federal government.

So in your opinion it should be cool for me to work up a fusion bomb in my basement as long as I plan to to help out the USAF's nuclear mission. Or perhaps I can get some JDAMs and as long as I plan to use them on terrorists I am all good?

[The Reaper]

So in your opinion it should be cool for me to work up a fusion bomb in my basement as long as I plan to to help out the USAF's nuclear mission. Or perhaps I can get some JDAMs and as long as I plan to use them on terrorists I am all good?

I am okay with that, if you can comply with the appropriate NRC regs and acquire the fissile material.

TR

[bravo22b]

So in your opinion it should be cool for me to work up a fusion bomb in my basement as long as I plan to to help out the USAF's nuclear mission. Or perhaps I can get some JDAMs and as long as I plan to use them on terrorists I am all good?

In case it was not as obvious as I thought:

Written by bravo22b: I'm not necessarily suggesting that a civilian needs or even should have an M1A1 Abrams, but it is an interesting concept.

I am not suggesting that I believe you should be able to build a fusion bomb in your basement. Frankly, I have not given a lot of thought to the question, so I reserve my right to express my opinion after some more deliberate consideration, or maybe not at all. No need for me to fire from the hip without considering what you have posted first.

However, I think it is an interesting intellectual exercise to consider that the Founders might not have had any objection to "civilians" owning what were then the most modern weapons of war. Maybe I am wrong.

[Streck-Fu]

However, I think it is an interesting intellectual exercise to consider that the Founder's might not have had any objection to "civilians" owning what were then the most modern weapons of war. Maybe I am wrong.

"No free man shall ever be debarred the use of arms. The strongest reason for the 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 laws that forbid the carrying of arms are laws of such nature. They disarm only those who are neither inclined nor determined to commit crimes... such laws serve rather to encourage than to prevent homocides, for an unarmed man may be attacked with greater confidence than an armed man. "('Commonplace Book' 1775)
--Thomas Jefferson

"Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state. "
--Thomas Jefferson

[Dozer523]

I am okay with that, if you can comply with the appropriate NRC regs and acquire the fissile material.

TR psssst, Sten. I got somthin in my basement, . . . you might be interested in. . . .
NRC? not after the way they screwed up the Olympics

You do promise to use it only for good though right?:cool: and you'll sign something to that effect. . . just in case:mad:

[Sten]

psssst, Sten. I got somthin in my basement, . . . you might be interested in. . . .
NRC? not after the way they screwed up the Olympics

You do promise to use it only for good though right?:cool: and you'll sign something to that effect. . . just in case:mad:

Crank call crank call.....

[Sigaba]

Entire post.When quoting Jefferson's support for the right to bear arms, I think one should remember that Jefferson was opposed to the concept of standing armies lead by professional soldiers. This is to say that the two concepts were connected, at least in Jefferson's thought.

(This point is not a criticism of you, Streck-Fu, but of Jefferson.)

Source is here (http://etext.virginia.edu/jefferson/quotations/jeff1480.htm)."There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army." --Thomas Jefferson to David Humphreys, 1789. ME 7:323

"I do not like [in the new Federal Constitution] the omission of a Bill of Rights providing clearly and without the aid of sophisms for... protection against standing armies." --Thomas Jefferson to James Madison, 1787. ME 6:387

"Nor is it conceived needful or safe that a standing army should be kept up in time of peace for [defense against invasion]." --Thomas Jefferson: 1st Annual Message, 1801. ME 3:334

"Standing armies [are] inconsistent with [a people's] freedom and subversive of their quiet." --Thomas Jefferson: Reply to Lord North's Proposition, 1775. Papers 1:231

"The spirit of this country is totally adverse to a large military force." --Thomas Jefferson to Chandler Price, 1807. ME 11:160

"A distinction between the civil and military [is one] which it would be for the good of the whole to obliterate as soon as possible." --Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:90

"It is nonsense to talk of regulars. They are not to be had among a people so easy and happy at home as ours. We might as well rely on calling down an army of angels from heaven." --Thomas Jefferson to James Monroe, 1814. ME 14:207

"There shall be no standing army but in time of actual war." --Thomas Jefferson: Draft Virginia Constitution, 1776. Papers 1:363

"The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so." --Thomas Jefferson to Thomas Cooper, 1814. ME 14:184

"Bonaparte... transferred the destinies of the republic from the civil to the military arm. Some will use this as a lesson against the practicability of republican government. I read it as a lesson against the danger of standing armies." --Thomas Jefferson to Samuel Adams, 1800. ME 10:154

[Razor]

You do promise to use it only for good though right?:cool: and you'll sign something to that effect. . . just in case:mad:

You mean like a non-disclosure statement signed before receiving specialized training or classified information?

[Streck-Fu]

When quoting Jefferson's support for the right to bear arms, I think one should remember that Jefferson was opposed to the concept of standing armies lead by professional soldiers.

I thought of bringing that up as well. He opposed a standing army because it could become an implement of a tyrant.
I still think that it is a separate issue from the discussion of the 2nd Am as an individual inalienable right. The two do not have to be connected. Whether or not a standing army exists, he believed that the citizens should have the means to defend themselves from or replace a government that no longer serves their purpose.

[GratefulCitizen]

I thought of bringing that up as well. He opposed a standing army because it could become an implement of a tyrant.
I still think that it is a separate issue from the discussion of the 2nd Am as an individual inalienable right. The two do not have to be connected. Whether or not a standing army exists, he believed that the citizens should have the means to defend themselves from or replace a government that no longer serves their purpose.

An abundance of SWAT teams combined with mission creep may constitute a standing army...

[Streck-Fu]

An abundance of SWAT teams combined with mission creep may constitute a standing army...

You are correct and.....

We are about 160 years removed from any form of government the Founding Fathers would accept.

[The Reaper]

That's a tall order, but since Craig, Rougish Lawyer and Consigliere seem to all be AWOl and I'm feeling frisky, I'll give it a shot. Believe it or not, a lot of it is grammatical:

Is the phrase "a well-regulated militia" a condition-precedent to the right of the people to bear arms? Did the writers mean that the right to bear arms was only in order to protect the country? English Common law (on which our government is based) seems to say "yes." English freeman were required to bear arms in order to protect the country if necessary.

Other interpretations, and the one adopted by the Heller court, say that the opening preface is just, basically, an example -- and non-exclusionary. This interpretation supports the right of individuals to bear arms.

I hope this helps. My thanks to Con Law Professor Winters and Wikepedia.


"I ask, sir, what is the militia? It is the whole people, except for a few public officials." — George Mason, in Debates in Virginia Convention on
Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788

[GratefulCitizen]

Is the phrase "a well-regulated militia" a condition-precedent to the right of the people to bear arms? Did the writers mean that the right to bear arms was only in order to protect the country? English Common law (on which our government is based) seems to say "yes." English freeman were required to bear arms in order to protect the country if necessary.


What did the term "well-regulated" mean on December 15, 1791?

When terms can be redefined, the Bill of Rights loses all of its power.

[PSM]

What did the term "well-regulated" mean on December 15, 1791?

When terms can be redefined, the Bill of Rights loses all of its power.

We know what it means by how it was implemented at the time.

Pat

[Sigaba]

What did the term "well-regulated" mean on December 15, 1791?

When terms can be redefined, the Bill of Rights loses all of its power.GC--

With respect, I don't know if, given the Militia Act of 1792, holding to the definition of "well-regulated" in the late eighteenth century helps the defense of the second amendment today. The first section of that act defined clearly who did (and did not) belong to the militia, and therefore who could (and could not) bear arms. It also enumerated what types of firearms and kit militiamen should possess. Source is here (http://www.constitution.org/mil/mil_act_1792.htm).I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

[GratefulCitizen]

GC--

With respect, I don't know if, given the Militia Act of 1792, holding to the definition of "well-regulated" in the late eighteenth century helps the defense of the second amendment today. The first section of that act defined clearly who did (and did not) belong to the militia, and therefore who could (and could not) bear arms. It also enumerated what types of firearms and kit militiamen should possess. Source is here (http://www.constitution.org/mil/mil_act_1792.htm).

Rhetorical question.

http://www.constitution.org/cons/wellregu.htm

[Sigaba]

Rhetorical question.

http://www.constitution.org/cons/wellregu.htmIMO, Mr. Halonen's argument would be more compelling if he

specified which version and edition of the OED he was using,
provided the sources of the quotations (as the full version of the OED does and too Denton Branwell in a similar piece available here (http://armsandthelaw.com/archives/WellRegulatedinold%20literature.pdf)), and
pointed to examples of "well-regulated" being used in legal and legislative contexts. (On this last point, the text of the 1792 act makes clear that Congress had a different view from Mr. Halonen's contention that "Establishing government oversight of the people's arms was not only not [sic] the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.")
My broader question remains--given the complex debates (historiographical, philosophical, philological and others) that can come from discussions of 'original meanings,' to what extent do these meanings help or hinder the affirmation of the second amendment today?

[GratefulCitizen]

IMO, Mr. Halonen's argument would be more compelling if he

specified which version and edition of the OED he was using,
provided the sources of the quotations (as the full version of theOED does), and
pointed to examples of "well-regulated" being used in legal and legislative contexts.
My broader question remains--given the complex debates that can come from discussions of 'original meanings,' to what extent do these meanings help or hinder the affirmation of the second amendment today?

Fair enough.

Just trying to point out that the term probably did not mean "legislated, micromanaged, controlled, licensed, not to be used without the express written permission of Major League Baseball."

[Sigaba]

Fair enough.

Just trying to point out that the term probably did not mean "legislated, micromanaged, controlled, licensed, not to be used without the express written permission of Major League Baseball."I'm following your point now.:D

[Streck-Fu]

Well regulated meant well organized.

[Pete]

Well regulated meant well organized.

Are you looking at the issue with 21st Century eyes or 18th Century eyes?

[Oldschool45B]

The M1, or any piece of armor was an exceedingly bad choice for you to use as to what an individual may not/should not own. Last year State cleared 5 M1A's for sale in the US. Three are in the hands of movie studios while two remain at large in the public's hands. As you can see by the link to Army Jeeps, there are numerous pieces of armor for sale to civilians and if you went to one of the SAR Shows or Knob Creek you would see many, many wonderful pieces of fully functional artillery. I myself own several military vehicles, numerous NFA weapons and as of yet, nobody has been killed by them. Simple possession of these items does not turn one into a threat to society, and I would dare say that if you can afford the price of admission you don't have to worry about knocking off liquor stores in the wee hours of the morning or using your Saracen for drive by squashings of rival gang members.

So again, why shouldn't people that have clear back grounds be allowed to possess such items? We have people in the military with criminal records that have ready access to machineguns, but a law abiding citizen can not own one? The WSJ says that NFA weapons are one of the best investments going because they never decrease in value if taken care of.

I know it makes a great number of people in the country, and I would bet some here very nervous that people have the ability to own these items. After all, citizens in possession of these items do pose a rather tough nut for a tyrannical government. But if you read the Federalist Papers, that is EXACTLY what the Founding Fathers had in mind. A citizens ability to own and use arms ensures their ability to throw off, and remove from power a government that has been deemed out of control or tyrannical.

I am in the process of securing my destructive device importers license. That will allow me to lawfully import things such as artillery, rounds for it, grenades and even RPG's. Yes, I have a legitimate use for them as part of a contract but the fact is I am just an average guy with a clean criminal record. The hoops one has to jump thru to get the license and import approvals are nothing less than astounding and overwhelming at times, but if you want it bad enough you play the game and check the boxes. If I can do it people with a lot more money than me that may not have the most noble of intentions can do it as well. But the law is the law.

So where do you draw the line? Why shouldn't the law abiding be free to buy the items they want that do not put the nation at risk (IE restricted technology)?

[steel71]

Not at all. The central (Federal) government was created to be the voice of the collection or Union of states. The individual states were meant to be the principle government of their citizens with the Federal government only seeing to business that was common to all of the states.

The federal government was certainly not created to protect the citizens from the states.

The 2nd Am, actually just the idea of an individual's right to be armed, should be undeniable. However, the 2nd Am as written into the Constitution has nothing to do with the states because the the Constitution only defines the powers of the federal government; nothing more.

That's interesting, tell that to the southern states. :D I think the US Supreme Court has over ruled state courts in many civil liberty cases over the years. But, yes, the states did create the US Government.

[steel71]

StreckFu---Do you believe that an M1 Abrams tank is an "arm" under the 2nd Amendment?

Is that really a rational argument? Lets throw in civilian vehicles too, they've killed heck of a lot more people than a tank. Vehicles can't be used as weapons? :cool:

[Animal8526]

The nuclear weapons arguments raise tough issues for anyone such as myself who believes in the absolute RTKBA.

But, nukes also define some issues more clearly...

First, I'll concede that a nuclear weapon and other WMD's, while state of the art in warfare, were truly beyond any of the FF's scope of imagination. I don't believe they comprehended that individual men could potentially possess the power to kill millions with the push of a button...

Having said that, if the founding fathers had had a crystal ball with which to look into the future, and had seen the existence of such weapons, what do you believe would be more probable...

A.) Granting sole and absolute control and discretionary use of said weapons, arguably the most powerful weapons, to a strong, centralized federal government... The same government they took many steps with which to limit and keep in check...

Or,

B.) Ceding regulatory issues regarding such weapons to the states, as states rights issues?

I'd argue that if the prevailing efforts taken were aimed at developing at strong country based on mostly autonomous states, and having a central federal government only as a means with which to enable the collaborative good of the states, existing only at the pleasure of the states, then I doubt they would have given such amazing tools of tyranny (potential) to the federal government alone. A federal government they wished to limit in scope.

The definition of "arms" used in the Heller decision was mentioned... I think the SCOTUS nailed it when they affirmed that the RTKBA was an individual right (this is a no brainer... All the other highly held amendments to the BOR reference individual right, and "the right of the people" is clearly spelled out in the second), I think they missed the mark on defining arms. How is a machine gun or a SBR any less of an individual weapon now than a blunderbuss, flintlock or dragoon was when the second was penned? The whole goddamn purpose of the second was to enumerate the peoples inalienable right to possess at the very least the most basic forms of military hardware.

I'll not get started on the complete and willful ignorance of "SHALL NOT BE INFRINGED". That last term didn't leave of with an "except in the case of rifles with barrels of under 16 inches, shotguns with barrels of under 18 inches, weapons that fired more than one round per trigger pull, anything with a caliber greater than .50, pistols with forward pistol grips, or anything else the federal government decides is too use full for the citizens to possess."

[Green Light]

Fair enough.

Just trying to point out that the term probably did not mean "legislated, micromanaged, controlled, licensed, not to be used without the express written permission of Major League Baseball."

That's a term that I've been struggling with for several years - "regulated."

I grew up with tales of my 5th great grandfather having been one of the leaders of the Regulator War, a North Carolina rebellion that culminated in 1771 at the Battle of Alamance. He and five other officers were hung by Lord Tryon. I have been trying to understand what the heck "regulator" and "regulated" meant to the 18th century ear. What I've come to figure out is that to those in the era, "regulated" meant "armed." Like other terms and phrases, it has changed over the years nearly rendering the 2nd Amendment meaningless.

I hope this illuminates.

[Don]

That's a term that I've been struggling with for several years - "regulated."

I grew up with tales of my 5th great grandfather having been one of the leaders of the Regulator War, a North Carolina rebellion that culminated in 1771 at the Battle of Alamance. He and five other officers were hung by Lord Tryon. I have been trying to understand what the heck "regulator" and "regulated" meant to the 18th century ear. What I've come to figure out is that to those in the era, "regulated" meant "armed." Like other terms and phrases, it has changed over the years nearly rendering the 2nd Amendment meaningless.

I hope this illuminates.

I think it was Madison that had issue with the "bill of rights". The belief is that human rights come from God. We all have them. The intent was that the Government would not regulate "rights". When you read thru the bill of rights...how many of them say the citizen has the right to [fill in the blank]? None. These were written, not accidentally, to limit Government intrusion on God given rights.

The second amendment doesn't say that the government bestows upon the people the right to own guns...it says the [god given] right of the people to keep and bear arms, shall not be infringed [by the government].

When you read thru the amendments there is a common thread...they are limits on governmental powers... not establishment of individual rights.

If a hypothetical millionaire buys a hypothetical M-1 Abrams and tries to go on a hypothetical spree...I will get in my hypothetical A-10 and take him down.:D

[Don]

A couple of exerpts from James Madisons address to the congress regarding establishment of the bill of rights. This were his recommendations for the first amendment.

-That all power is originally vested in, and consequently derived from the people.

-That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

-That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

...and a bit later...here is the genesis of the second amendment:

"The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person. "

James Madisons MAIN idea was the right to keep and bear arms will not be infringed.

[robbo1959]

Looks like they will rule 5-4 to overturn Chi Town's ban, well that's what a Constitutional lawyer said yesterday on KOA radio out of Denver.

[koz]

When you read thru the amendments there is a common thread...they are limits on governmental powers... not establishment of individual rights.

I think it's a hard to pin the Bill of Rights as only limits of gov't powers - Otherwise it would be the Bill of Limitations on Governmental Powers not the Bill of Rights. Limiting gov't powers goes hand in hand with a citizen's individual right.

First - the right of the people peaceably to assemble

Second - the right of the People to keep and bear Arms, shall not be infringed

Fourth - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures

Sixth - the accused shall enjoy the right to a speedy and public trial,

Seventh - the right of trial by jury shall be preserved

Ninth - of certain rights, shall not be construed to deny or disparage others retained by the people.


Just sayin'....

[moutinman]

Koz - In regards to your statement, "I think it's a hard to pin the Bill of Rights as only limits of gov't powers - Otherwise it would be the Bill of Limitations on Governmental Powers not the Bill of Rights. Limiting gov't powers goes hand in hand with a citizen's individual right."



To be fair....if you are saying the rights outlined in the Bill of Rights are the only ones we are granted and that this document was not meant to limit government powers then I would like to quote Amendment X which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people."

To me, this is the catch all at the end of the Bill of Rights that gives all powers not specifically addressed to the States and/or the people. This absolutely limits the power of the Federal Government. That was the intent of the Constitution as I read it; to outline the specific structure and responsibility of the government so they could be held accountable and to limit their powers.

Just my thoughts......

[craigepo]

Greenlight:

I have never even considered defining the term "regulated" in any manner other than something synonymous with "organized". I'm not sure that your definition would hold up in court, at least with the writings I have seen. But, if you were correct, it would damn sure change the calculus of 2nd Amendment law. "A well-ARMED militia..."???

http://www.guncite.com/gc2ndmea.html

koz and Don:
In law school, they teach that the Bill of Rights was the Founders' way of protecting certain necessary rights, by prohibiting government actions in derogation thereof.

http://topics.law.cornell.edu/constitution/billofrights

[Animal8526]

It really is important to stress the definition of "enumerated" when referring the the BOR. Far too many people think the BOR was "granted".

[Streck-Fu]

We're coming full circle....I brought this very point up on page 2....




From my understanding, the Bill of Rights were only included as amendments at the insistence of the Anti-Federalists like Patrick Henry who were concerned about a strong central government encroaching on the states sovereignty.
The Federalists opposed the inclusion of a Bill of Rights as they considered the Constitution, as a document defining and limiting the federal government, enough to protect those rights. They thought the rights natural and assured and that the people would never allow them to be abridged or denied.

[Oldschool45B]

Small sidebar as a point of clarification. Tanks and other armored vehicles are completely unregulated in their ownership (with the sole exception being new generation tans with armor that is classified in it's construction).

What is regulated under federal law is the main gun, which is a destructive device requiring a simply $200 tax to be paid to the ATF. Rounds for them are also regulated due to their composition. Home made rounds cast from iron or lead, or beehive rounds are regulated because of the amount of powder in them (again a simple $200 tax when you intend to make one). Factory produced ammo with explosive rounds because of the powder and the explosive content. These are obviously much harder to get factory rounds because MFG's are not willing to risk the obvious liability that goes with these rounds.


But again the question stands, where do you dry the line? As long as the weapon does not pose a threat to national security and the individual can be shown to be a law abiding citizen why should they not be allowed to own a Tank, Cannon, Machinegun or items of that nature? There are those for and against their ownership and so far all we have heard is their disagreement to it, but not a why. I am genuinely interested in learning the rationale behind their POV, especially from this group.

[BlackHills]

I realize I'm late to the party but I believe that a citizen should be allowed to own a weapon that the Govt owns. Why should the Govt be considered more trustworthy than the citizen?

[Sigaba]

We're coming full circle...I brought this very point up on page 2...IMO, posts #99, 100, and 102-106 are making different points than the ones you raised in your post.

[Streck-Fu]

IMO, posts #99, 100, and 102-106 are making different points than the ones you raised in your post.

I brought that up again because of this statement in post #102:

think it's a hard to pin the Bill of Rights as only limits of gov't powers - Otherwise it would be the Bill of Limitations on Governmental Powers not the Bill of Rights.

[Sigaba]

I brought that up again because of this statement in post #102:Streck-Fu, understood.

My reading of post #102 is that it advances the argument that sovereignty stems from the people and is invested in a government (be it state or federal) by their consent. By my reading, this suggests that the key actors are people.

My reading of your post is that you were advancing the argument that the key actor in the debate were individual states.

I also think the two posts differ in that while #102 focuses on the political philosophy behind the debates over the Constitution and the Bill of Rights, yours focuses more on the politics behind the debates.

This is to say that I think we're all looking at the tapestry of American liberty and pulling on different yarns. In my view, your post (and mine) pull at the weft while the others pull at the warp.

[Streck-Fu]

Streck-Fu, understood.

My reading of post #102 is that it advances the argument that sovereignty stems from the people and is invested in a government (be it state or federal) by their consent. By my reading, this suggests that the key actors are people..

I read post #102 as the BoR granting rights to the people. It seems clear in the part I quoted above.

I do understand that he is making the point that there is an inverse relationship between the people's liberties and government powers.

I was trying to iterate that the Constitution defines the limits of federal power and that the BoR were included at the insistence of the Anti-Federalists to specify the most important rights in which the government could not limit or restrict.

[Don]

I was trying to iterate that the Constitution defines the limits of federal power and that the BoR were included at the insistence of the Anti-Federalists to specify the most important rights in which the government could not limit or restrict.

AGREED. That was much better stated than my poor attempt to articulate this idea in posts 99 and 100.

[Don]

I think it's a hard to pin the Bill of Rights as only limits of gov't powers - Otherwise it would be the Bill of Limitations on Governmental Powers not the Bill of Rights. Limiting gov't powers goes hand in hand with a citizen's individual right.

First - the right of the people peaceably to assemble

The first phrase in that amendment is "Congress make no law respecting..." A limitation on Government.

Second - the right of the People to keep and bear Arms, shall not be infringed

..."Shall not be infringed [by the Government]. A limitation on Government.

Fourth - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

A limitation on Government.

Sixth - the accused shall enjoy the right to a speedy and public trial,

Seventh - the right of trial by jury shall be preserved

Agreed. It does specify these rights are accorded to individuals from the Government.

Ninth - of certain rights, shall not be construed to deny or disparage others retained by the people.

Again, my point is we are endowed by our creator with liberties, freedoms, and rights inherent in free men, and these can not be enumerated. That is why, as Streck-Fu has mentioned, the founding fathers cherry-picked specific items, with great specificity, to address. You can't address each and every right of a free man in one document lest it become as lengthy and incomprehensible as the current healthcare bill.

The difference is there are Rights afforded to us that are derived from God and Humanity; and those specifically afforded to us in regards to efficient administration of Government (read: 6 & 7th Amendments).

The Government gives...and can take away.

[Roguish Lawyer]

The argument against enacting the Bill of Rights was that the Constitution already protected liberty by limiting federal powers to those specifically enumerated. If a bill of rights was enacted, some felt that this could be construed as an exclusion of any rights not included. It also was argued that the concept undermined the limited-powers design of the Constitution. All of this stuff was driven by the fact that many of the Founders were lawyers and familiar with the maxim of construction, "expressio unius est exclusio alterius," which means when you say one thing it excludes alternatives.

I actually know a lot about this stuff and would love to write at length about it, but unfortunately I've got lots of work to do. Maybe later.

[Roguish Lawyer]

When quoting Jefferson's support for the right to bear arms, I think one should remember that Jefferson was opposed to the concept of standing armies lead by professional soldiers. This is to say that the two concepts were connected, at least in Jefferson's thought.


Connected how? All of the Founders hated standing armies because the British troops were pretty abusive of the colonists -- see the 3rd Amendment, for example. If you are suggesting that Jefferson's support for the right to bear arms was dependent in some way on some standing army issue, you are just wrong.

The basis for the 2nd Amendment in the minds of the Framers, including Jefferson, was that the People need arms to protect themselves against despotic governments, not so much because they need to protect themselves against burglars or go hunting (although they would not have disagreed with those arguments). Jefferson has the most bitchin statements on this issue, like the one about liberty needing an occasional bath in the blood of tyrants or something like that.

[Roguish Lawyer]

Here's a good podcast on this stuff if anyone is interested.

http://www.fed-soc.org/publications/pubid.1788/pub_detail.asp

[Sigaba]

When quoting Jefferson's support for the right to bear arms, I think one should remember that Jefferson was opposed to the concept of standing armies lead by professional soldiers. This is to say that the two concepts were connected, at least in Jefferson's thought.Connected how? All of the Founders hated standing armies because the British troops were pretty abusive of the colonists -- see the 3rd Amendment, for example. If you are suggesting that Jefferson's support for the right to bear arms was dependent in some way on some standing army issue, you are just wrong. RL--

With respect, I believe that you misread my post. I also believe that the issues are not as clear cut as you suggest.

In regards to the latter, not all founders were hostile to the notion of a standing army. Both Hamilton and Washington advocated a body of regulars. While Washington acknowledged the political realities of his time and understood that this organization would have to be small, he did not have the deep rooted mistrust of standing armies. For his part, Hamilton believed that America's victory in the War of American Revolution testified to the importance of a regular army and he advocated a military policy that supported one.*

In regards to the former, as David J. Siemers points out, Jefferson's political thought remains to this day as it was during his lifetime--highly debatable.**

In my view, Jefferson advocacy of the right to bear arms was connected (not dependent) because of Jefferson's view that the yeoman farmer was the ideal prototype for future Americans, that he felt Federalists would use the military establishment to ramrod its policies down Americans' throats, that regulars were inherently untrustworthy due to their social backgrounds, and that a military establishment patterned after European models would be too expensive.***

In this light, it is not unreasonable to read Jefferson's advocacy of the right to bear arms as being connected to his wish to limit the power of a regular standing army. As Russell Weigley points out: The Second Amendment further guaranteed the statuts of militias by declaring: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and to bear arms shall not be infringed." It was possible to regard the state militias as a check against a federal standing army, since they had just accomplished a very similar purpose: they had given birth to he Continental Army to check the thread of a military despotism from the British army.****"

YMMV.

__________________________________________________ _____
* R. F. Weigley, Towards an American Army: Military Thought from Washington to Marshall (New York and London: Columbia University Press, 1962), pp. 10-29.
** David J. Siemers, "Ambivalent Sage Thomas Jefferson and Political Philosophy," paper presented at the 2008 annual meeting of the Western Political Science Association’s annual meeting in San Diego, California, March 20-22, pp. 1-6.
*** Drew McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill, University of North Carolina Press, 1980); Russell F. Weigley, History of the United States Army, The Wars of the United States, ed. Louis Morton (1967; reprint, London: B. T. Batsford, Ltd., 1968), p. 74-116. FWIW, one will find several examples in these pages of Americans in addition to Washington and Hamilton who did not hate standing armies.
**** Weigley, History of the United States Army, p. 87.

[Green Light]

The constitution speaks of "provide and maintain a Navy" but only "raise and support armies." This language for the army is probably purposefully temporary. As said above, the people, and the founding fathers, were concerned that a large standing national army could be used to repress dissent against opposing views. It also decentralizes the armed forces to the states. It appears, and history bears out, that the regular army was always supposed to be a relatively small cadre with the bulk coming from "calling forth the Militia . . . of the several States, when called into the actual Service of the United States."

[Roguish Lawyer]

RL--

With respect, I believe that you misread my post. I also believe that the issues are not as clear cut as you suggest.

In regards to the latter, not all founders were hostile to the notion of a standing army. Both Hamilton and Washington advocated a body of regulars. While Washington acknowledged the political realities of his time and understood that this organization would have to be small, he did not have the deep rooted mistrust of standing armies. For his part, Hamilton believed that America's victory in the War of American Revolution testified to the importance of a regular army and he advocated a military policy that supported one.*

In regards to the former, as David J. Siemers points out, Jefferson's political thought remains to this day as it was during his lifetime--highly debatable.**

In my view, Jefferson advocacy of the right to bear arms was connected (not dependent) because of Jefferson's view that the yeoman farmer was the ideal prototype for future Americans, that he felt Federalists would use the military establishment to ramrod its policies down Americans' throats, that regulars were inherently untrustworthy due to their social backgrounds, and that a military establishment patterned after European models would be too expensive.***

In this light, it is not unreasonable to read Jefferson's advocacy of the right to bear arms as being connected to his wish to limit the power of a regular standing army. As Russell Weigley points out:

YMMV.

__________________________________________________ _____
* R. F. Weigley, Towards an American Army: Military Thought from Washington to Marshall (New York and London: Columbia University Press, 1962), pp. 10-29.
** David J. Siemers, "Ambivalent Sage Thomas Jefferson and Political Philosophy," paper presented at the 2008 annual meeting of the Western Political Science Association’s annual meeting in San Diego, California, March 20-22, pp. 1-6.
*** Drew McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill, University of North Carolina Press, 1980); Russell F. Weigley, History of the United States Army, The Wars of the United States, ed. Louis Morton (1967; reprint, London: B. T. Batsford, Ltd., 1968), p. 74-116. FWIW, one will find several examples in these pages of Americans in addition to Washington and Hamilton who did not hate standing armies.
**** Weigley, History of the United States Army, p. 87.

How does any of this have anything to do with the topic of this thread? This "connection" of yours is completely irrelevant unless I am missing something.

[Sigaba]

How does any of this have anything to do with the topic of this thread? This "connection" of yours is completely irrelevant unless I am missing something.RL--

With respect, discussions on a given topic often go in various directions.

Within this thread, the point I'm making is relevant for two reasons.

First, posts #13, 24-26, 36, 42, 45-53, 55, 63, 68, 72, 73, 78-80, 82-89, 97, 99-107, and 114-115, address the historical contexts of the second amendment, the Bill of Rights, and the Constitution more generally. IMO, my comment about the connection fits into that exploration of contexts.

Second, while discussions about the second amendment often center around issues of civil liberties and of public policy, there are established, long running discussions among military, naval and diplomatic historians, as well as among historians of the Early Republic, about how the debate over the Constitution and the second amendment set the framework for U.S. national security policy.

[craigepo]

It is said, more frequently than precisely, that the reasons the Supreme Court gives for doing whatever it does are as important as what it does. Actually, the court's reasons are what it does. Hence, the interest in the case the Supreme Court considered last week.

It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could — but, judging from the justices' remarks during oral argument, probably will not — make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment's "privileges or immunities" clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.

The Second Amendment says: "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." Until 2008, the court had never clarified whether the prefatory clause makes this right conditional: Does the amendment protect an individual's right to own firearms, or does it protect that right only in connection with a state's right to organize a militia?

In 2008, the court struck down a D.C. law that effectively banned possession of handguns even in an owner's home — it banned all guns not kept at businesses, or disassembled or disabled by trigger locks. The court held, 5 to 4, that the Second Amendment protects individuals' rights.

But the court answered only the question then posed, which concerned the federal enclave of the District of Columbia. Left unanswered was whether the amendment protects that right against severe restrictions by state and local laws.

The oral argument concerned ordinances in Chicago and suburban Oak Park that are indistinguishable from the D.C. law. The court probably will overturn those ordinances by holding that another part of the 14th Amendment — the guarantee that no state shall deny liberty "without due process of law" — "incorporates" the Second Amendment. The justices evinced scant interest Tuesday in resurrecting the "privileges or immunities" clause by revisiting an incoherent decision rendered in 1873.

To the drafters of the 14th Amendment, the phrase "privileges or immunities" was synonymous with "basic civil rights." But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being "incorporated" into the 14th Amendment's "due process" clause.

Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be "incorporated" but others are not. This doctrine bears the oxymoronic name "substantive due process." Substance is what process questions are not about.

If the court now "incorporates" the Second Amendment right via the "due process" guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that "substantive due process" is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the "privileges or immunities" scythe against the two gun ordinances.

First, protecting the individual's right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.

Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect preexisting rights, aka natural rights — those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it "codified a pre-existing right."

Third, "privileges or immunities" are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans' enjoyment of the blessings of liberty.

Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" — to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if — a huge caveat — it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.

http://www.jewishworldreview.com/cols/will030710.php3

[koz]

To be fair....if you are saying the rights outlined in the Bill of Rights are the only ones we are granted and that this document was not meant to limit government powers then I would like to quote Amendment X which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people."

To me, this is the catch all at the end of the Bill of Rights that gives all powers not specifically addressed to the States and/or the people. This absolutely limits the power of the Federal Government. That was the intent of the Constitution as I read it; to outline the specific structure and responsibility of the government so they could be held accountable and to limit their powers.




koz and Don:
In law school, they teach that the Bill of Rights was the Founders' way of protecting certain necessary rights, by prohibiting government actions in derogation thereof.

The first phrase in that amendment is "Congress make no law respecting..." A limitation on Government.

..."Shall not be infringed [by the Government]. A limitation on Government.

Again, my point is we are endowed by our creator with liberties, freedoms, and rights inherent in free men, and these can not be enumerated. That is why, as Streck-Fu has mentioned, the founding fathers cherry-picked specific items, with great specificity, to address. You can't address each and every right of a free man in one document lest it become as lengthy and incomprehensible as the current healthcare bill.

The difference is there are Rights afforded to us that are derived from God and Humanity; and those specifically afforded to us in regards to efficient administration of Government (read: 6 & 7th Amendments).

The Government gives...and can take away.

I think we're all saying the same thing - just getting there differently. IMO -Yes we have God given rights, mentioned in the Dec of Independence. I feel that the founders felt like there were certain rights that were so important to the people (then and now) that they needed to mention them specifically so there was no question if those things were rights. (People now debate if citizens have a right to public healthcare, right to a cell-phone, right to college, etc...) The founders named certain rights so then they could establish limitations on a gov't ability to infringe on them.

[HOLLiS]

Citizenship Clause 14th Amendment, §1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.



Seems to say it does.

[Richard]

...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Remember - the Legislatures - as representatives of the citizenry - do have the power to change the laws and amend the various constitutions as necessary.

Richard's $.02 :munchin

[Roguish Lawyer]

RL--

With respect, discussions on a given topic often go in various directions.

Within this thread, the point I'm making is relevant for two reasons.

First, posts #13, 24-26, 36, 42, 45-53, 55, 63, 68, 72, 73, 78-80, 82-89, 97, 99-107, and 114-115, address the historical contexts of the second amendment, the Bill of Rights, and the Constitution more generally. IMO, my comment about the connection fits into that exploration of contexts.

Second, while discussions about the second amendment often center around issues of civil liberties and of public policy, there are established, long running discussions among military, naval and diplomatic historians, as well as among historians of the Early Republic, about how the debate over the Constitution and the second amendment set the framework for U.S. national security policy.

With respect, more meaningless gobbledygook.

[Roguish Lawyer]

The justices evinced scant interest Tuesday in resurrecting the "privileges or immunities" clause by revisiting an incoherent decision rendered in 1873.


Which really is too bad -- one of the worst decisions ever (the Slaughterhouse cases).

[Roguish Lawyer]

Citizenship Clause 14th Amendment, §1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.



Seems to say it does.

In the Slaughterhouse cases, the Supreme Court essentially ruled that the privileges and immunities clause does not mean what it expressly says.

[Richard]

And there you have it...

Richard

[Sigaba]

Entire post.Not withstanding your dismissive comments, the debates (historiographical and otherwise) over the Constitution and its original meanings continue.*




______________________________________
* Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf), 7-10, 11, 339-365.

[grog18b]

Wow... Spell check is your friend...