Second Amendment Fallacies

[Steve973]

Have you all read the following link:
http://www.federalistblog.us/2010/09/second_amendment_fallacies/

Federalistblog might be reported as an attack page, but I don't see any malware there. The general gist, although everyone should read the blog carefully, is that the second amendment really doesn't do anything; it simply reiterates our natural rights that are not ceded to the federal government by the Constitution anyway. It applies to militias, but more on that later, and it doesn't mean that the individual can't have firearms, so don't angrily hit reply yet!

The real problem is that people look at the Constitution as the powers that are granted, sometimes in an unlimited fashion, to the federal government, and they see the Bill of Rights as an enumeration of states' and individuals' rights. And this is really what gets us into trouble.

Since the founding fathers, no doubt, regarded personal defense as a given right and that nobody would ever want to give that up, they crafted the second amendment to deal with militias remaining armed during times of peace. Still, it clearly implies an individual's gun ownership rights, since the militia is comprised of individuals, and the Federalist papers indicate the importance of armed individuals. I.e., how would a militia remained armed if its members were not armed?!

The tenth amendment then applies, even though it is a redundancy in itself as long as you perceive the Constitution in the spirit in which it was written. The power goes to the states and to the people to decide. In this respect, it really appears to be the state's right to regulate the firearms, since that is not one of the powers granted to the federal government. Yes, that brings into question the thought that any federal firearms regulations are quite unconstitutional (FFL, ATF, etc), it becomes ambiguous when we look at a state's right to decide on firearms regulation.

From the perspective of a militia being comprised of *armed* people, the second amendment seems to protect us from the states usurping this right from the people. I really don't know what the answer is, short of creating an amendment that removes the power of firearms regulations completely from the states.

 

[randian]

But the 2nd doesn't apply to militias. Do not confuse the justification for a right with the right itself. The rules of ordinary English make it clear that the prefatory clause is not a limitation on the following clause, and if anti-2A people were honest they'd read it that way.

 

[Steve973]

The idea, here, is that the Constitution is intended to limit the powers of the government. There was the notion that standing armies in times of peace were thought to be a great threat to liberty. Anyway, whether anyone thinks that the second amendment guarantees rights to individuals or militias, it still doesn't remove the right of the individual to keep and bear arms.

 

[teratos]

But the 2nd doesn't apply to militias. Do not confuse the justification for a right with the right itself. The rules of ordinary English make it clear that the prefatory clause is not a limitation on the following clause, and if anti-2A people were honest they'd read it that way.

This. The operative clause of the 2A is " the right of the people to keep and bear arms shall not be infringed". This needs to be read separately from the predatory clause to accurately understand the meaning of the 2A. This is the line in the 2A that denotes its intended meaning.

 

[tony b]

But the 2nd doesn't apply to militias. Do not confuse the justification for a right with the right itself. The rules of ordinary English make it clear that the prefatory clause is not a limitation on the following clause, and if anti-2A people were honest they'd read it that way.

you hit on the problem the anti's interpret this and others anyway they feel will make their point. oh the new american way

 

[teratos]

you hit on the problem the anti's interpret this and others anyway they feel will make their point. oh the new american way

Then one of the conservatives should make it a point to lecture the house/senate on how to read the Constitution (in open/televised session). It would be embarrassing to the Dems if someone pointed out the the American people that many of those in government sworn to uphold the Constitution don't know how to read it.

 

[Steve973]

Make no mistake; I am for individual freedoms. I hold this first and foremost -- above conservatism and even above the Constitution. Now, then, anyone can insist that A means A or A means B. You should be quoting the founding fathers when you insist that a part of the Constitution means something. The best source would be the Federalist papers.

Even still, that is going about it all wrong, but I am only going to repeat myself. The Constitution enumerates the powers that we bestow upon the federal government. Nowhere does it allow them to regulate personal firearms! The amendments, and the second amendment in particular don't provide rights; they only redundantly state that these rights shall not be infringed. This is particularly important! The founding fathers were particularly smart in that they didn't try to enumerate the freedoms of the people, but to rather limit the powers of the government. We must approach this in an objective way. Otherwise, it's just a matter of personal opinion, and the people with the most cash and influence will simply have their say.

 

[MJD438]

Make no mistake; I am for individual freedoms. I hold this first and foremost -- above conservatism and even above the Constitution. Now, then, anyone can insist that A means A or A means B. You should be quoting the founding fathers when you insist that a part of the Constitution means something. The best source would be the Federalist papers.

(emphasis mine)
I would counter this and state that one needs to read and understand the positions posed by both the Federalist and Anti-Federalist papers. They represent the opinions of both sides in the original debates for ratification and have interesting tidbits on various Constitutional issue. Reading one and not the other leaves an individual with a tilted view of the founding fathers' intents.

 

[Steve973]

That's definitely true. Either way, though, it's important to realize what the Constitution is meant to do.

By the way, did any of you read the article at the link that I posted?

 

[MJD438]

That's definitely true. Either way, though, it's important to realize what the Constitution is meant to do.

By the way, did any of you read the article at the link that I posted?

I have it bookmarked for reading on my flights on Monday. Trying to spend some time with family today.

 

[EL1227]

Two points ...

Heller and settled law ... "shall NOT be infringed."

This all goes to the very heart of the question over the extent of the Second Amendment because as the court in Heller states, the “very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

Placement of a comma ...

The Second Amendment: What a Difference a Comma Makes

But also consider this article and it's conclusion on FreeRepublic ...

History of 2A ... note the heavily footnoted parts that the OP's link left out.

Conclusion

English history made two things clear to the American revolutionaries: force of arms was the only effective check on government, and standing armies threatened liberty. Recognition of these premises meant that the force of arms necessary to check government had to be placed in the hands of citizens. The English theorists Blackstone and Harrington advocated these tenants. Because the public purpose of the right to keep arms was to check government, the right necessarily belonged to the individual and, as a matter of theory, was thought to be absolute in that it could not be abrogated by the prevailing rulers.

These views were adopted by the framers, both Federalists and Antifederalists. Neither group trusted government. Both believed the greatest danger to the new republic was tyrannical government and that the ultimate check on tyranny was an armed population. It is beyond dispute that the second amendment right was to serve the same public purpose as advocated by the English theorists. The check on all government, not simply the federal government, was the armed population, the militia. Government would not be accorded the power to create a select militia since such a body would become the government's instrument. The whole of the population would comprise the militia. As the constitutional debates prove, the framers recognized that the common public purpose of preserving freedom would be served by protecting each individual's right to arms, thus empowering the people to resist tyranny and preserve the republic. The intent was not to create a right for other (p.1039) governments, the individual states; it was to preserve the people's right to a free state, just as it says.

(I LOVE when authors cherry pick ... I do it myself, so I'm aware of their techniques. )

OBTW ... From My Cold Dead Hands !!!

 

[Steve973]

A better article is one like this one:
http://www.guncite.com/gc2ndpur.html

Either way you look at it, there's a bunch of unconstitutional stuff going on.

 

[Mark75H]

Its all in "shall not be infringed"

It doesn't say Congress shall not infringe, it doesn't say states shall not infringe ... it just says "shall not be infringed." [Special emphasis on the period]

This clearly means there shall not be any government restriction at any level.

There are no exception clauses ...

 

[ezliving]

Its all in "shall not be infringed"

It doesn't say Congress shall not infringe, it doesn't say states shall not infringe ... it just says "shall not be infringed." [Special emphasis on the period]

This clearly means there shall not be any government restriction at any level.

There are no exception clauses ...

I have not seen any 2A court decisions that put any thought into the meaning of "shall not be infringed". I guess that would take away the discretion of the courts (and legislatures).

 

[Mark75H]

exactly as originally intended

 

[Huckleberry]

The fallacy of the OP and his linked article is their failure to understand the definition, make up and history of the respective colonial militias prior, during and post the Revolution.

Since a militia is usually made up usually of individuals between 16 and 60 who must provided for themselves a suitable weapon with a minimum amoumt of flints, powder and shot as a prequisite for service the right of the individual to bear arms could not be infringed. The clothing and rations of the militia or Minutemen in some cases were also the responsibility of the individual member and not the state.

Service in the militia was born from the notion of providing for the general welfare and common defense of the individual's immediate community and state and not the country until the start of the Revolution.

 

[Steve973]

Huckleberry, and some of the other posters in this thread, if you would actually read what I have typed and not have a knee-jerk reaction, you might not misunderstand me. Right in my original post, I said, "Still, it clearly implies an individual's gun ownership rights, since the militia is comprised of individuals, and the Federalist papers indicate the importance of armed individuals. I.e., how would a militia remained armed if its members were not armed?!"

 

[Forager]

To truly understand the 2A, one must read not only the Constitution and both the Federalist and Anti-Federalist Papers, but the constitutions of the original Thirteen Colonies. The Magna Carta, of course, must be studied as it was a blueprint of sorts for the Bill of Rights. Read, too, the wisdom of John Locke whose writings inspired much of the Bill of Rights.

The Right to Keep and Bear Arms was seen as a bulwark against the power of a state or national government to bend the people to it's will. It follows the First Amendment for a very specific reason; it is there to insure that people remember that the rights in the First Amendment were seminal to the creation of this Republic, and it was the rights endowed by our Creator and protected under the Second Amendment that allowed the colonies to break free in order to exercise the rights in the First Amendment.

The writings of Jefferson, Madison, Monroe, Adams, Henry, Hamilton, and others speak about the right, and often the necessity, of free men keeping arms at hand and on their persons. This was not some idea of a "militia", this was a daily ideal of having arms and the ability to defend your life, hearth, home, and neighbors against attack. The daily exercise of that right would breed familiarity with arms and thus the confidence to have and to use them if need be.

The Bill of Rights is not an a la carte' menu. We cannot and should not pick and choose which rights we think are important today, or then, or tomorrow, while distancing ourselves from the rest. Those rights cannot stand without the others standing with them. How hollow would the First Amendment right to peaceably assemble be, without the Fourth Amendment right against unreasonable search and seizure, or the Fifth Amendment right against self-incrimination? How hollow would be the Eight Amendment, if not for the Sixth Amendment right to a speedy trial and trial by jury of ones peers? Take them all, as they are and in their fullest measure, or none will stand the test of time.