Our new Indie Games subforum is now open for business in G&T. Go and check it out, you might land a code for a free game. If you're developing an indie game and want to post about it, follow these directions. If you don't, he'll break your legs! Hahaha! Seriously though.
Our rules have been updated and given their own forum. Go and look at them! They are nice, and there may be new ones that you didn't know about! Hooray for rules! Hooray for The System! Hooray for Conforming!

The Right to Bear Arms

12357

Posts

  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Matrijs wrote: »
    Matrijs wrote: »
    The first clause is there to state that a militia is necessary to the defense of a free state. The reason it is there is because the framers felt that a standing army was in no way preferable to a militia. Also, you keep using a definition for regulated that is different from the military term used at the time. A regulated militia did not mean a militia organized by government regulations, it meant maintained in working order.

    So the first statement has no bearing on the application of the law. That's exactly my point. You can't just interpret sections of the Constitution out of existence by saying they're simply statements of principle or something.
    It's not interpereting it out of existence to say that a statement of principle is exactly that. As I said, look at previous revisions of the amendment. Even better, look at some of the versions proposed by the states. Here are two relevant excerpts.
    Virginia wrote:
    That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.
    New York wrote:
    That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; that the Militia should not be subject to Martial Law, except in time of War Rebellion or Insurrection. That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the Civil Power.

    The phrasing of both of those drafts is substantively different from what was, in the end, agreed upon. In the final phrasing, the second clause is clearly conditioned upon the first.
    If it were clearly conditioned, there would be no debate. The statement could be read as "because a militia is necessary to the security of a state" (statement of principle) just as easily as it could be read "if (and only if) a militia is necessary to the security of a state" (conditional statement).

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • deadonthestreetdeadonthestreet Registered User regular
    edited March 2008
    Or hey maybe we are breaking the constitution by not regulating out militia well enough.

  • mcdermottmcdermott Registered User regular
    edited March 2008
    Or hey maybe we are breaking the constitution by not regulating out militia well enough.

    ololol!!!!!1!!1!!eleven!

    Spoiler:
  • MatrijsMatrijs Registered User
    edited March 2008
    Matrijs wrote: »
    Great job of taking things out of context. Those were two separate points addressing two separate arguments. The mention of the 1903 militia definition was in response the the argument that the National Guard constitutes our modern militia; the National Guard was organized by the same act that defined the militia as 17-45. My mention of the 1792 act was to show that the view of the militia was not all that different (yes it was restricted to white males; so was voting, government office and, at least as far a race was concerned, citizenship). The universal right to bear arms is based on the need to maintain a militia. The militia consists of all male citizens between 17 and 45, expanded from the 1792 definition. While this limits militia service, it does not limit the ownership of guns; those out of the militia, particularly former members, are probably quite beneficial to maintaining a regulated militia.

    But it's not out of context. Your whole argument stems from a strict, textualist interpretation of the amendment. If you accept textualism there, without allowing for substantive changes resulting from changing values in the population, you have to acknowledge the textual argument elsewhere, including with regard to the 1792 Militia Act.

    Secondly, if the universal right to bear arms is based on the need to maintain a militia, then banning arms for those outside the militia doesn't necessarily infringe upon that right. A similar argument governs in the case of free speech. Commercial speech (advertising and such) is not protected because the purpose of the First Amendment is to protect political speech, despite the broad phrasing of the right.

    Therefore, the question of precisely who is a member of a "well-regulated militia" is an important one. While I would challenge the argument that all 17-45 year old white males are members, if we simply accept that argument, then it would appear that nonwhites do not have that right.
    As with voting, enrollment in the militia has been expanded since it was first drafted into law. By the laws passed in 1903, the militia includes all race, hence even if you take the strict militia stance, non-whites do have that right. I have said several times, the militia is the reason, but it is not the limiting factor.
    Look at it this way:

    A requires B
    C includes B
    Since we need A, we will do C.

    In effect, they were granting broader rights than were required for the stated reason. Maybe they thought it was better to have broader rights.

    That interpretation simply doesn't account for why you would include A in stating C. The First Amendment doesn't include a justification - nor does the third, fourth, fifth, sixth, seventh, or eighth. The Second Amendment is unique in this respect, if your interpretation is correct. At the very least, we should ask why that is. The only reasonable conclusion to make is that the "justification" is, in fact, a limitation on the right being proposed. Since that reading is supportable by the text, and doesn't render any clause irrelevant or redundant, it is the correct one.

    Look, just about every Supreme Court and Federal Appeals Court decision on the question until this most recent case has taken the opposite tack. There's a reason for that.

  • MatrijsMatrijs Registered User
    edited March 2008
    Or hey maybe we are breaking the constitution by not regulating out militia well enough.

    Nope. The Constitution doesn't require the states to have a militia, much less regulate one. It's a right they have, protected by the Second Amendment, but they have no obligation to exercise it.

  • ege02ege02 __BANNED USERS
    edited March 2008
    If it were clearly conditioned, there would be no debate. The statement could be read as "because a militia is necessary to the security of a state" (statement of principle) just as easily as it could be read "if (and only if) a militia is necessary to the security of a state" (conditional statement).

    Yeah, but in either case someone has to prove that a militia is in fact necessary to the security of the state.

    Let's not treat the Constitution the same way fundies treat the Bible.

    Medopine wrote: »
    Fuck that woman going "oh god oh no!!"

    It's nature, bitch
  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Matrijs wrote: »
    Matrijs wrote: »
    Great job of taking things out of context. Those were two separate points addressing two separate arguments. The mention of the 1903 militia definition was in response the the argument that the National Guard constitutes our modern militia; the National Guard was organized by the same act that defined the militia as 17-45. My mention of the 1792 act was to show that the view of the militia was not all that different (yes it was restricted to white males; so was voting, government office and, at least as far a race was concerned, citizenship). The universal right to bear arms is based on the need to maintain a militia. The militia consists of all male citizens between 17 and 45, expanded from the 1792 definition. While this limits militia service, it does not limit the ownership of guns; those out of the militia, particularly former members, are probably quite beneficial to maintaining a regulated militia.

    But it's not out of context. Your whole argument stems from a strict, textualist interpretation of the amendment. If you accept textualism there, without allowing for substantive changes resulting from changing values in the population, you have to acknowledge the textual argument elsewhere, including with regard to the 1792 Militia Act.

    Secondly, if the universal right to bear arms is based on the need to maintain a militia, then banning arms for those outside the militia doesn't necessarily infringe upon that right. A similar argument governs in the case of free speech. Commercial speech (advertising and such) is not protected because the purpose of the First Amendment is to protect political speech, despite the broad phrasing of the right.

    Therefore, the question of precisely who is a member of a "well-regulated militia" is an important one. While I would challenge the argument that all 17-45 year old white males are members, if we simply accept that argument, then it would appear that nonwhites do not have that right.
    As with voting, enrollment in the militia has been expanded since it was first drafted into law. By the laws passed in 1903, the militia includes all race, hence even if you take the strict militia stance, non-whites do have that right. I have said several times, the militia is the reason, but it is not the limiting factor.
    Look at it this way:

    A requires B
    C includes B
    Since we need A, we will do C.

    In effect, they were granting broader rights than were required for the stated reason. Maybe they thought it was better to have broader rights.

    That interpretation simply doesn't account for why you would include A in stating C. The First Amendment doesn't include a justification - nor does the third, fourth, fifth, sixth, seventh, or eighth. The Second Amendment is unique in this respect, if your interpretation is correct. At the very least, we should ask why that is. The only reasonable conclusion to make is that the "justification" is, in fact, a limitation on the right being proposed. Since that reading is supportable by the text, and doesn't render any clause irrelevant or redundant, it is the correct one.

    Look, just about every Supreme Court and Federal Appeals Court decision on the question until this most recent case has taken the opposite tack. There's a reason for that.

    The first Amendment also does not include a specific condition under which it is valid, neither do the others. Looking at the information the wording was derived from, there is no reason to assume that the statement is a condition on the rights enumerated, rather than a statement of position that necessitates those rights.

    ege: A standing army does protect the member states of a federation, but they are not subject to the state governments. Local militias provide states with a degree of control over their own security, but without the additional expense that maintiaining a standing army on the state level would require.

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • Not SarastroNot Sarastro __BANNED USERS regular
    edited March 2008
    Feral wrote: »
    I'm pretty damn pro-gun, but the only reasonable conclusion from an even remotely literate reading of the Second Amendment is that there is no individual right to own guns, and certainly not handguns. I dislike the NRA because they represent the worst in conservative lobbyist tactics; notably the reduction of what should be a nuanced and fact-based debate into a bunch of stupid soundbytes and the proliferation of the myth that the Second Amendment guarantees such an individual right.

    See, I find this whole thing bizarre, but I find it even more bizarre that you can be very pro-gun while essentially eschewing all the standard given reasons. Seems to me like your conclusions re: 2nd Am and such are spot on, but it begs the question: so why are you pro-gun?

    Or possibly: what do you mean by pro-gun? Handguns, concealed carry, hunting rifles, target shooting limited to a range, etc. Several of those I can see being perfectly reasonable with proper training, but the CC or guns in the home idea in the US seems frankly absurd to me.

    If you are (or for others who are) pro-CC and so on, do you support carrying of knives in public, or right to own RPGs in the home? After all, it's possible someone could ram-raid your house or place of business, so a rocket launcher is a fine form of defence or deterrent. If not, why not? Where's the line that makes guns special?

  • RocketSauceRocketSauce Registered User regular
    edited March 2008
    After all, it's possible someone could ram-raid your house or place of business, so a rocket launcher is a fine form of defence or deterrent. If not, why not? Where's the line that makes guns special?


    Other than a rocket launcher has no other intended use than military action, and designed to be used on the battlefield against armored vehicles?

    If you enjoy making silly arguments to prove a silly point (guns R just az bad az rockit lonchers LOL), go for it. I suppose that's what D&D is all about it. Your point really has no merit in terms of the discussion as firearms have already proven time and time again they have a place in self-defense, and hunting. RPGs, mortars, C4, etc do not.

  • DocDoc Registered User, ClubPA regular
    edited March 2008
    Your point really has no merit in terms of the discussion as firearms have already proven time and time again they have a place in self-defense, and hunting. RPGs, mortars, C4, etc do not.

    Stop giving Ted Nugent ideas.

  • Mai Guo-XunMai Guo-Xun Registered User
    edited March 2008
    Again, thank you for replying; I'm sorry for not responding in a timely manner, circumstances forbade me from coming to the computer for the day, but now that I have time, I would like to address some of your points once more:
    Matrijs wrote:
    Another alternative (and I believe the correct one), is that "State" means there, as it does elsewhere in the Constitution, Virginia or New York or Maryland, as opposed to the federal government. The restriction is on federal power to deny states the right to form their own militias and resist federal tyranny. It's a state's right, not an individual's.

    I would disagree fully with the interperetation of "State" (note, with a capital letter) indicating the state-level divisions of the Federal government - note, for instance, in the Tenth Amendment, the only Amendment where there is an unambiguous reference to the state subdivisions:
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    Why, in writing the guiding document establishing the rights of the people in the United States, would the authors make such a change in referring to the states not only in the singular, but also by capitalization, thereby indicating stylistically that there is a reference to a singular, unique body? Rather, I believe there are two alternatives here, at least:

    a) the "State" (capitalized, singular), stands for the nation in the United States, in particular, the people of that nation.

    b) the "State" (capitalized, singular) refers to the singular government of the United States.

    In both cases, it is never expressly delegated to the states alone to form militias in that Amendment, nor is it expressly prohibited to the people to form militias of their own volition, or to bear arms in the event that the standing populace would be armed and ready to form a militia if the intention arose, which is indeed what I believe the Founding Fathers intended - to have a populace armed and ready to form a militia in the imminent need of one, and not to produce a militia and then arm it.
    Matrijs wrote:
    Part of anti-federalist movement was concerned with the balance of power between the national and state governments. Thomas Jefferson and other anti-federalists were just as concerned with the rights of states as they were with the rights of individuals. That, I would suggest, is the reason that the Second Amendment fits into the Bill of Rights - as a restriction on federal power. The tenth amendment also fits into this context.

    Consider also that the Bill of Rights didn't apply to the states until the passage of the Fourteenth Amendment (and even then, wasn't enforced as such until the 1960s). This reinforces even more that the concern of the anti-federalists (note the name) was with a tyrannical national government, more than with the rights of individuals.

    While you are fundamentally correct in saying that the primary concern of the Anti-Federalists was that of a concern against Central Government, I believe it's incorrect to state that the Anti-Federalists were in favor of devolving political control to the states as a matter of belief in that system in and of itself. Rather, the Anti-Federalists favored the system of decentralized government as an express means to defend individual liberty, that a decentralized government would have a far more difficult time in infringing the rights of the individual, whereas the Centralized government, by merit of its concentrated power, would find it easier to do so.

    Yes, the Anti-Federalists were primarily concerned with a strong central government, and so made the restriction of that their primary goal, and in doing so neglected the possible abuses of power in the state government. However, this does not indicate the purpose of a Bill of Rights being a sheer restriction on Centralized Government in favor of State Government by its own merits, but, as mentioned many times in documents such as the Anti-Federalist Papers, the purpose of the Bill of Rights was expressly to defend individual rights.

    I quote from the Anti-Federalist papers, Paper No. 84, entitled "On The Lack of a Bill of Rights":
    " wrote:
    Of what avail will the Constitutions of the respective States be to preserve the rights of its citizens? Should they be pled, the answer would be, the Constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the General or State governments, are bound by oath to support it. No privilege, reserved by the bills of rights, or secured by the State governments, can limit the power granted by this, or restrain any laws made in pursuance of it. It stands, therefore, on its own bottom, and must receive a construction by itself, without any reference to any other. And hence it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made.
    " wrote:
    Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned in order to attain the end for which government is instituted; these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential rights as are not necessary to be parted with.

    The source is: http://www.wepin.com/articles/afp/

    As we can see in these passages, the express worry of the Anti-Federalists was not the preservation of States' Rights, but rather, the preservation of Individual's rights. The Bill of Rights was a defense of the Individual Liberty through a restraint of the Central Government (cf. Anti-Federalist No. 9), whose defense of the state governments was the belief that the state governments would defend personal rights, or at least ensure them.

    Furthermore, if the Bill of Rights was intended to deal with the States, why would every single other Amendment in the Bill of Rights, with the partial exception of the Tenth refer to the rights of the people, and the protection of those rights? Again, quoted from No. 89:
    Brutus wrote:
    We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms.

    Note how Brutus references rights that refer entirely to individuals, and not to states - his worries are based on the defense of individual liberty, and absolutely not on the rights of the states.

    So, why, in the middle of an entire document dealing with the defense of personal liberty, and dealing with the defense of individual rights would the Bill of Rights assert a right solely in the domain of a state government?
    Matrijs wrote:
    It's a trap in the sense that it's a clever way of essentially writing the first clause out of existence. For all practical, legal purposes, it's as if the first clause doesn't even exist. When we interpret the law, we ought to try to interpret it in such a way that every word or phrase has some concrete implication on how the law is applied. That's the principle I would suggest that is being violated by that interpretation.

    It certainly is not writing the first clause out of existence. It establishes the reason and the justification behind the law, and the spirit in which the law is formed. Furthermore, if every single word has a concrete implication, why is the concrete implication of "the right of the People" not, as it would concretely be, a right expressly granted to the people, and not to the state? Furthermore, there are many sections in the Constitution wherein there is established a justification and explanation for an act, not the least of which being the preamble.

    And yet, it certainly does not write the preamble out of existence to suggest that its main purpose is to establish motive and reason for the creation of a new government.
    Matrijs wrote:
    The "Right of Rebellion" is an interesting idea, but I would suggest that we've since repudiated it, for better or for worse. The Civil War removed the possibility of even whole states rebelling against the national government, much less non-state-affiliated militias. If we reject that right, the whole rest of the argument seems to have problems, since it's predicated on that right.

    While it might suggest that we have repudiated the Right of Rebellion, it does not by any means suggests that the Framers of the Constitution repudiated this concept, indeed, judging from a great deal of their works and words, which appear even in the Federalist Papers, not to mention spread well throughout the Anti-Federalist, that the concept of a Social Contract based on Locke's theories, with extending implication to the Right of Rebellion was alive and well within the framers.

    Even though we might have repudiated it, the argument here is about the frame of mind of whose who composed the Constitution; given the level of belief in the ideas of Locke's theories (and those of others), it is by no means wrong to believe that they as well held the Right of Rebellion against a tyrannical government still valid.

  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Doc wrote: »
    Your point really has no merit in terms of the discussion as firearms have already proven time and time again they have a place in self-defense, and hunting. RPGs, mortars, C4, etc do not.

    Stop giving Ted Nugent ideas.

    You would have a better chance arguing for automatic weapons; rpgs aren't considered small arms, and even during the American Revolution, they would have been more likely considered ordnance, which if I remember correctly, was something that was specifically to be kept by the state for the militia.

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • DocDoc Registered User, ClubPA regular
    edited March 2008
    Doc wrote: »
    Your point really has no merit in terms of the discussion as firearms have already proven time and time again they have a place in self-defense, and hunting. RPGs, mortars, C4, etc do not.

    Stop giving Ted Nugent ideas.

    You would have a better chance arguing for automatic weapons; rpgs aren't considered small arms, and even during the American Revolution, they would have been more likely considered ordnance, which if I remember correctly, was something that was specifically to be kept by the state for the militia.

    Just saying, they have a place in AWESOME hunting.

  • MatrijsMatrijs Registered User
    edited March 2008
    Again, thank you for replying; I'm sorry for not responding in a timely manner, circumstances forbade me from coming to the computer for the day, but now that I have time, I would like to address some of your points once more:
    Matrijs wrote:
    Another alternative (and I believe the correct one), is that "State" means there, as it does elsewhere in the Constitution, Virginia or New York or Maryland, as opposed to the federal government. The restriction is on federal power to deny states the right to form their own militias and resist federal tyranny. It's a state's right, not an individual's.

    I would disagree fully with the interperetation of "State" (note, with a capital letter) indicating the state-level divisions of the Federal government - note, for instance, in the Tenth Amendment, the only Amendment where there is an unambiguous reference to the state subdivisions:
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    Why, in writing the guiding document establishing the rights of the people in the United States, would the authors make such a change in referring to the states not only in the singular, but also by capitalization, thereby indicating stylistically that there is a reference to a singular, unique body? Rather, I believe there are two alternatives here, at least:

    a) the "State" (capitalized, singular), stands for the nation in the United States, in particular, the people of that nation.

    b) the "State" (capitalized, singular) refers to the singular government of the United States.

    In both cases, it is never expressly delegated to the states alone to form militias in that Amendment, nor is it expressly prohibited to the people to form militias of their own volition, or to bear arms in the event that the standing populace would be armed and ready to form a militia if the intention arose, which is indeed what I believe the Founding Fathers intended - to have a populace armed and ready to form a militia in the imminent need of one, and not to produce a militia and then arm it.

    The capital letter argument is not a good one. Throughout the text of the Constitution, the Founders referred to individual states with the spelling, "State."

    Here are a couple examples:
    The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three.
    The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by 17th Amendment, section 1.) for six Years; and each Senator shall have one Vote.
    Matrijs wrote:
    Part of anti-federalist movement was concerned with the balance of power between the national and state governments. Thomas Jefferson and other anti-federalists were just as concerned with the rights of states as they were with the rights of individuals. That, I would suggest, is the reason that the Second Amendment fits into the Bill of Rights - as a restriction on federal power. The tenth amendment also fits into this context.

    Consider also that the Bill of Rights didn't apply to the states until the passage of the Fourteenth Amendment (and even then, wasn't enforced as such until the 1960s). This reinforces even more that the concern of the anti-federalists (note the name) was with a tyrannical national government, more than with the rights of individuals.

    While you are fundamentally correct in saying that the primary concern of the Anti-Federalists was that of a concern against Central Government, I believe it's incorrect to state that the Anti-Federalists were in favor of devolving political control to the states as a matter of belief in that system in and of itself. Rather, the Anti-Federalists favored the system of decentralized government as an express means to defend individual liberty, that a decentralized government would have a far more difficult time in infringing the rights of the individual, whereas the Centralized government, by merit of its concentrated power, would find it easier to do so.

    Yes, the Anti-Federalists were primarily concerned with a strong central government, and so made the restriction of that their primary goal, and in doing so neglected the possible abuses of power in the state government. However, this does not indicate the purpose of a Bill of Rights being a sheer restriction on Centralized Government in favor of State Government by its own merits, but, as mentioned many times in documents such as the Anti-Federalist Papers, the purpose of the Bill of Rights was expressly to defend individual rights.

    I quote from the Anti-Federalist papers, Paper No. 84, entitled "On The Lack of a Bill of Rights":
    " wrote:
    Of what avail will the Constitutions of the respective States be to preserve the rights of its citizens? Should they be pled, the answer would be, the Constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the General or State governments, are bound by oath to support it. No privilege, reserved by the bills of rights, or secured by the State governments, can limit the power granted by this, or restrain any laws made in pursuance of it. It stands, therefore, on its own bottom, and must receive a construction by itself, without any reference to any other. And hence it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made.
    " wrote:
    Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned in order to attain the end for which government is instituted; these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential rights as are not necessary to be parted with.

    The source is: http://www.wepin.com/articles/afp/

    As we can see in these passages, the express worry of the Anti-Federalists was not the preservation of States' Rights, but rather, the preservation of Individual's rights. The Bill of Rights was a defense of the Individual Liberty through a restraint of the Central Government (cf. Anti-Federalist No. 9), whose defense of the state governments was the belief that the state governments would defend personal rights, or at least ensure them.

    Furthermore, if the Bill of Rights was intended to deal with the States, why would every single other Amendment in the Bill of Rights, with the partial exception of the Tenth refer to the rights of the people, and the protection of those rights? Again, quoted from No. 89:
    Brutus wrote:
    We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms.

    Note how Brutus references rights that refer entirely to individuals, and not to states - his worries are based on the defense of individual liberty, and absolutely not on the rights of the states.

    So, why, in the middle of an entire document dealing with the defense of personal liberty, and dealing with the defense of individual rights would the Bill of Rights assert a right solely in the domain of a state government?

    Because the Bill of Rights is a set of restrictions on federal power, not guarantees of individual rights. Consider the First Amendment:
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    This is an express limitation on the power of Congress, but not on the power of the states.

    Until the passage of the Fourteenth Amendment (and really until the Warren Court, almost a hundred years after that), states were free to restrict political speech if their own state constitutions did not prohibit it. Traditionally, states were seen as being closer to the people, and guarantors of individual liberties, protecting those liberties against a potentially tyrannical national government. The idea of individual liberties and the rights of states are essentially linked in the anti-federalist view.
    Matrijs wrote:
    It's a trap in the sense that it's a clever way of essentially writing the first clause out of existence. For all practical, legal purposes, it's as if the first clause doesn't even exist. When we interpret the law, we ought to try to interpret it in such a way that every word or phrase has some concrete implication on how the law is applied. That's the principle I would suggest that is being violated by that interpretation.

    It certainly is not writing the first clause out of existence. It establishes the reason and the justification behind the law, and the spirit in which the law is formed. Furthermore, if every single word has a concrete implication, why is the concrete implication of "the right of the People" not, as it would concretely be, a right expressly granted to the people, and not to the state? Furthermore, there are many sections in the Constitution wherein there is established a justification and explanation for an act, not the least of which being the preamble.

    And yet, it certainly does not write the preamble out of existence to suggest that its main purpose is to establish motive and reason for the creation of a new government.

    Let me try and illustrate my point with a less politically charged portion of the Constitution. Suppose I took the view that the "necessary and proper" clause of the Constitution allowed Congress the power to do anything it wanted, beyond those powers expressly granted by the Constitution. I would be then writing out of existence, or making meaningless, the tenth amendment, which limits the powers of Congress to those explicitly granted by the Constitution, and thus my interpretation could be discarded as wrong. I could argue that the tenth amendment is simply a statement of the intent of the Framers to limit the power of the government over the states and the people, but that the "necessary and proper" clause makes it basically redundant, and I would be wrong to do so.
    Matrijs wrote:
    The "Right of Rebellion" is an interesting idea, but I would suggest that we've since repudiated it, for better or for worse. The Civil War removed the possibility of even whole states rebelling against the national government, much less non-state-affiliated militias. If we reject that right, the whole rest of the argument seems to have problems, since it's predicated on that right.

    While it might suggest that we have repudiated the Right of Rebellion, it does not by any means suggests that the Framers of the Constitution repudiated this concept, indeed, judging from a great deal of their works and words, which appear even in the Federalist Papers, not to mention spread well throughout the Anti-Federalist, that the concept of a Social Contract based on Locke's theories, with extending implication to the Right of Rebellion was alive and well within the framers.

    Even though we might have repudiated it, the argument here is about the frame of mind of whose who composed the Constitution; given the level of belief in the ideas of Locke's theories (and those of others), it is by no means wrong to believe that they as well held the Right of Rebellion against a tyrannical government still valid.

    I suppose then we should ask whether or not we have also rejected, de facto, the universal right to bear arms. If the concept of state by state secession is tied to the concept of the right to bear arms through this mutual justification of the right to rebellion, and we've since removed the ability of states to secede de facto, rather than by explicit Constitutional amendment, we ought to consider whether or not we've done the same for the universal right to bear arms. I think also that the importance of this concept is overstated. While certain public figures of the time might have supported such an ideal (notably Patrick Henry and Thomas Jefferson), they were forced to compromise in creating our national government. The people they compromised with, Hamilton, Madison, Washington, Adams, etc. - the Federalists - would have adamantly opposed a universal right of rebellion (as evidenced by their condemnation of both Shay's Rebellion before the Constitution and the Whiskey Rebellion after it).

  • MatrijsMatrijs Registered User
    edited March 2008
    After all, it's possible someone could ram-raid your house or place of business, so a rocket launcher is a fine form of defence or deterrent. If not, why not? Where's the line that makes guns special?


    Other than a rocket launcher has no other intended use than military action, and designed to be used on the battlefield against armored vehicles?

    If you enjoy making silly arguments to prove a silly point (guns R just az bad az rockit lonchers LOL), go for it. I suppose that's what D&D is all about it. Your point really has no merit in terms of the discussion as firearms have already proven time and time again they have a place in self-defense, and hunting. RPGs, mortars, C4, etc do not.

    Actually, no, his point is quite valid. The amendment doesn't specify firearms. If the intent was to preserve the ability of the people to rise up against the government, then clearly the right of the people to "keep and bear" RPGs, mortars, C4, anti-helicopter rocket launchers, armored vehicles, and so on should be protected.

    The concepts of self-defense and hunting have absolutely no relevance to the Second Amendment. Note that the pro-gun interpretation of the amendment is that the initial clause is a statement of intent about the second one. If that's so, then the first clause clearly demonstrates that the "arms" specified by the second clause must include pretty much any military material, up to and including explosives.

  • DocDoc Registered User, ClubPA regular
    edited March 2008
    It is also worth noting that stating "the second amendment does not guarantee the right for private individuals to own firearms" is not at all the same as stating "private individuals should be banned from owning firearms."

  • RocketSauceRocketSauce Registered User regular
    edited March 2008
    Matrijs wrote: »
    After all, it's possible someone could ram-raid your house or place of business, so a rocket launcher is a fine form of defence or deterrent. If not, why not? Where's the line that makes guns special?


    Other than a rocket launcher has no other intended use than military action, and designed to be used on the battlefield against armored vehicles?

    If you enjoy making silly arguments to prove a silly point (guns R just az bad az rockit lonchers LOL), go for it. I suppose that's what D&D is all about it. Your point really has no merit in terms of the discussion as firearms have already proven time and time again they have a place in self-defense, and hunting. RPGs, mortars, C4, etc do not.

    Actually, no, his point is quite valid. The amendment doesn't specify firearms. If the intent was to preserve the ability of the people to rise up against the government, then clearly the right of the people to "keep and bear" RPGs, mortars, C4, anti-helicopter rocket launchers, armored vehicles, and so on should be protected.

    The concepts of self-defense and hunting have absolutely no relevance to the Second Amendment. Note that the pro-gun interpretation of the amendment is that the initial clause is a statement of intent about the second one. If that's so, then the first clause clearly demonstrates that the "arms" specified by the second clause must include pretty much any military material, up to and including explosives.

    Read the transcript of yesterday's Supreme Court hearing. The Supreme Court seems to thing they have a relevance to the 2nd Amendment.

  • ThanatosThanatos Registered User regular
    edited March 2008
    Doc wrote: »
    It is also worth noting that stating "the second amendment does not guarantee the right for private individuals to own firearms" is not at all the same as stating "private individuals should be banned from owning firearms."
    This is in fact the case with me. I don't believe in a strong second amendment interpretation, but I own a couple of guns.

  • Not SarastroNot Sarastro __BANNED USERS regular
    edited March 2008
    After all, it's possible someone could ram-raid your house or place of business, so a rocket launcher is a fine form of defence or deterrent. If not, why not? Where's the line that makes guns special?

    Other than a rocket launcher has no other intended use than military action, and designed to be used on the battlefield against armored vehicles?

    Well gee whizz mister, I'm sure sorry I didn't give an example of non-military action that it could be used in, like say someone ramraiding your store!

    Yes, it's a silly example, but what you singularly failed to do is what I asked, namely explain why guns are a special case instead of RPGs or whatever specious piece of military hardware you fancy - or indeed, flick-knives, machetes, swords, and so on. I wasn't trying to jizz all over your nice new hairdo, I am just trying to understand what reasoning people give for guns being a special case, especially when as in Feral's argument, he dismisses the usual pro-gun positions.

    Oh, and did I say that I can understand guns being used for hunting or shooting on a range. Yes I did!

    Reading comp plz.

  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Matrijs wrote: »
    After all, it's possible someone could ram-raid your house or place of business, so a rocket launcher is a fine form of defence or deterrent. If not, why not? Where's the line that makes guns special?


    Other than a rocket launcher has no other intended use than military action, and designed to be used on the battlefield against armored vehicles?

    If you enjoy making silly arguments to prove a silly point (guns R just az bad az rockit lonchers LOL), go for it. I suppose that's what D&D is all about it. Your point really has no merit in terms of the discussion as firearms have already proven time and time again they have a place in self-defense, and hunting. RPGs, mortars, C4, etc do not.

    Actually, no, his point is quite valid. The amendment doesn't specify firearms. If the intent was to preserve the ability of the people to rise up against the government, then clearly the right of the people to "keep and bear" RPGs, mortars, C4, anti-helicopter rocket launchers, armored vehicles, and so on should be protected.

    The concepts of self-defense and hunting have absolutely no relevance to the Second Amendment. Note that the pro-gun interpretation of the amendment is that the initial clause is a statement of intent about the second one. If that's so, then the first clause clearly demonstrates that the "arms" specified by the second clause must include pretty much any military material, up to and including explosives.

    Arms specifically referred to personal weapons (rifles, muskets, swords and pistols). Rockets, mortars and cannon were referred to as field pieces or ordnance. According to the Articles of Confederation, the States (supporting your point of referring to individual states with a capital "S") were to maintain supplies of field pieces, arms and ammunition. The Militia Act of 1792 notes that militia members were to provide their own muskets, pistols and horses. The Articles of Confederation ceased to be in effect by the time of the Militia Act, but it does show that they drew a distinction between field pieces and arms.

    Edit: Just to be clear, "arms" had several definitions at the time, but in the context of being borne by soldiers, it referred to personal weapons.

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • MrMisterMrMister Valuing scholarship above all elseRegistered User regular
    edited March 2008
    ege02 wrote: »
    Medopine wrote: »
    Yeah, sending it to the highest court in the land to interpret is following it blindly.

    Well, no, I'm talking about people who are arguing that the 2nd amendment gives individuals the right to bear arms despite being aware of the fact that the amendment is not factually accurate.

    You're being damn retarded. It's the process of law upon which society depends: it would be a very different system if judges could strike down laws for being stupid rather than unlawful.

  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Matrijs wrote: »
    Matrijs wrote: »
    Great job of taking things out of context. Those were two separate points addressing two separate arguments. The mention of the 1903 militia definition was in response the the argument that the National Guard constitutes our modern militia; the National Guard was organized by the same act that defined the militia as 17-45. My mention of the 1792 act was to show that the view of the militia was not all that different (yes it was restricted to white males; so was voting, government office and, at least as far a race was concerned, citizenship). The universal right to bear arms is based on the need to maintain a militia. The militia consists of all male citizens between 17 and 45, expanded from the 1792 definition. While this limits militia service, it does not limit the ownership of guns; those out of the militia, particularly former members, are probably quite beneficial to maintaining a regulated militia.

    But it's not out of context. Your whole argument stems from a strict, textualist interpretation of the amendment. If you accept textualism there, without allowing for substantive changes resulting from changing values in the population, you have to acknowledge the textual argument elsewhere, including with regard to the 1792 Militia Act.

    Secondly, if the universal right to bear arms is based on the need to maintain a militia, then banning arms for those outside the militia doesn't necessarily infringe upon that right. A similar argument governs in the case of free speech. Commercial speech (advertising and such) is not protected because the purpose of the First Amendment is to protect political speech, despite the broad phrasing of the right.

    Therefore, the question of precisely who is a member of a "well-regulated militia" is an important one. While I would challenge the argument that all 17-45 year old white males are members, if we simply accept that argument, then it would appear that nonwhites do not have that right.
    As with voting, enrollment in the militia has been expanded since it was first drafted into law. By the laws passed in 1903, the militia includes all race, hence even if you take the strict militia stance, non-whites do have that right. I have said several times, the militia is the reason, but it is not the limiting factor.
    Look at it this way:

    A requires B
    C includes B
    Since we need A, we will do C.

    In effect, they were granting broader rights than were required for the stated reason. Maybe they thought it was better to have broader rights.

    That interpretation simply doesn't account for why you would include A in stating C. The First Amendment doesn't include a justification - nor does the third, fourth, fifth, sixth, seventh, or eighth. The Second Amendment is unique in this respect, if your interpretation is correct. At the very least, we should ask why that is. The only reasonable conclusion to make is that the "justification" is, in fact, a limitation on the right being proposed. Since that reading is supportable by the text, and doesn't render any clause irrelevant or redundant, it is the correct one.

    Look, just about every Supreme Court and Federal Appeals Court decision on the question until this most recent case has taken the opposite tack. There's a reason for that.

    The first Amendment also does not include a specific condition under which it is valid, neither do the others. Looking at the information the wording was derived from, there is no reason to assume that the statement is a condition on the rights enumerated, rather than a statement of position that necessitates those rights.

    ege: A standing army does protect the member states of a federation, but they are not subject to the state governments. Local militias provide states with a degree of control over their own security, but without the additional expense that maintiaining a standing army on the state level would require.

    The think is, the commas aren't in the places they would be were it simply one of rationale. In the actual Bill of Rights, it 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." While the states use various punctuation, I think we should use the original.
    Now, commas were not used consistently at that time, being place phonetically and spread like buckshot, but these are quite telling, as I cannot imagine anybody pausing in the middle of the militia clause were it being used in the context you assert. So, we now come to what the structure then means, i.e, why would you pause or otherwise shift you pronunciation at those points?
    Well, the most obvious reason is the parenthetical, so that, in informal writing, the amendment might read "A well regulated militia (being necessary to the security of a free state), the right of the people to keep and bear arms shall not be infringed." (the comma is my own interpretation of how it would add together sensibly, as commas often hedge off pathetically and clauses).
    Now, what would this mean? Well, remember the Latinate grammar I keep bringing up? This is where it is applicable. If I remember the ablative absolute (which is what the clause has been identified as) correctly, it is a specification under the circumstances under which the following statement is true. Therefore, we can further read the amendment as "[for] 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."
    Now reading more into the ablative absolute, I may have been overly hasty in assigning parenthesis. A sentence with the same comma usage that has also been identified as the ablative absolute reads "The Americans, (with) their independence secured, formed a government." This would seem to substantiate Merkel and Uviller's analysis: "The linguistically correct reading of this unique construction ... is as though it said: Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the best — if not the only — way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without."”

    Now "infringe" is also interesting in its contrast to "abridge." What's the difference? As I have somewhere to be soon, I'll let you guys debate it.

    [SIGPIC][/SIGPIC]
    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Scalfin wrote: »
    The think is, the commas aren't in the places they would be were it simply one of rationale. In the actual Bill of Rights, it 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." While the states use various punctuation, I think we should use the original.
    Now, commas were not used consistently at that time, being place phonetically and spread like buckshot, but these are quite telling, as I cannot imagine anybody pausing in the middle of the militia clause were it being used in the context you assert. So, we now come to what the structure then means, i.e, why would you pause or otherwise shift you pronunciation at those points?
    Well, the most obvious reason is the parenthetical, so that, in informal writing, the amendment might read "A well regulated militia (being necessary to the security of a free state), the right of the people to keep and bear arms shall not be infringed." (the comma is my own interpretation of how it would add together sensibly, as commas often hedge off pathetically and clauses).
    Now, what would this mean? Well, remember the Latinate grammar I keep bringing up? This is where it is applicable. If I remember the ablative absolute (which is what the clause has been identified as) correctly, it is a specification under the circumstances under which the following statement is true. Therefore, we can further read the amendment as "[for] 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."
    Now reading more into the ablative absolute, I may have been overly hasty in assigning parenthesis. A sentence with the same comma usage that has also been identified as the ablative absolute reads "The Americans, (with) their independence secured, formed a government." This would seem to substantiate Merkel and Uviller's analysis: "The linguistically correct reading of this unique construction ... is as though it said: Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the best — if not the only — way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without."
    The key difference between your example and the amendment is that in your example, the word before the first comma is the subject of the main clause: The American formed a government. In the amendment, this is not the case, as the subject of the main clause is "The right of the people to keep and bear arms". We also should not be focusing on the House & Senate version as our only source, since the versions ratified by the states hold just as much legal weight as the versions proposed by congressional vote. In fact, the meaning of the two versions would have to be the same in order for the amendment to be valid. Since the comma placement of the version from the house and senate is ambiguous, that means that we should be looking at the version ratified by the states, which is much less so. (Also looking at prior drafts of the amendment, there is a comma between the subject and verb (or participle) of each clause, including the religious exemption. It may have been done for some kind of symmetry).

    "A well regulated militia being necessary to the security of a free state" is an english construction called an absolute phrase. As you said, it does derive from the ablative absolute. Also like the ablative absolute, it is not a conditional phrase; it provides information, but is not connected grammatically to the rest of the sentence. Rather than meaning "if this is true" or "while this is true", the absolute phrase really just means "this is true".

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • mcdermottmcdermott Registered User regular
    edited March 2008
    ege02 wrote: »
    If it were clearly conditioned, there would be no debate. The statement could be read as "because a militia is necessary to the security of a state" (statement of principle) just as easily as it could be read "if (and only if) a militia is necessary to the security of a state" (conditional statement).

    Yeah, but in either case someone has to prove that a militia is in fact necessary to the security of the state.

    Let's not treat the Constitution the same way fundies treat the Bible.

    Hey, wow, I don't see anybody doing that. Last I checked, there's not a clear and straightforward (if moderately difficult) method by which the bible can be changed. Nobody is claiming the Constitution to be a universal truth that cannot be wrong or improved. We're simply saying that it is the law, and until changed it stands. Which is, you know, true...at least for as long as we remain a constitutional republic.

    Saying that perhaps we should require the supermajority put forward in the Constitution in order to modify it (or render a portion "obsolete") is not akin to saying it's the infallible word of god.

    Or, in other words, stop being daft.
    If you are (or for others who are) pro-CC and so on, do you support carrying of knives in public, or right to own RPGs in the home? After all, it's possible someone could ram-raid your house or place of business, so a rocket launcher is a fine form of defence or deterrent. If not, why not? Where's the line that makes guns special?

    Well, at least one common argument is that explosives in particular are much harder to use without causing harm to bystanders. Sure, if I miss the guy breaking into my house the bullet may fly across the street and kill my neighbor. But it's unlikely, and becomes extremely unlikely if I hit my target. With explosives, like rockets/missiles/grenades, it becomes much more likely to employ one against an assailant without causing collateral damage...even if I actually hit my target. Same for the "olol nukes are arms" argument.

    Now, assuming we're talking about militia use rather than self-defense use, it's also arguable that the second amendment would really only cover individual small arms that would commonly be issued to soldiers, and not crew-served weapons (like most grenade launchers, most belt-fed machine guns, etc). That it would be the responsibility of the individual states to provide heavy weapons (for defense against either a foreign power, or a tyrannical federal government), and that the people are limited to small arms.

    Note that personal individual weapons does include both pistols and shotguns, as both are commonly carried by individuals across branches in our armed forces.

    Besides which, you're being an idiot. The odds that I'd be in a situation where I would use a gun for home defense are remote (though again, it's arguable that private gun ownership may help make it even less likely). But the odds that I'd use a fucking RPG for home defense (or self defense) are beyond remote. They're essentially zero.

    Spoiler:
  • electricitylikesmeelectricitylikesme Registered User regular
    edited March 2008
    I think I'd have to agree with mcdermott on that one - if the purpose of the right to bear arms is the maintenance of a militia, then it actually does stand to reason that individual weapons like rifles would be kept by individuals, presumably with crew-served weapons stored at wherever that militia bases from.

    Then again, this is also assuming an actual organized militia.

    Dis' wrote: »
    Cancer is when cells stop letting the body mooch off their hard work - clearly a community of like-minded cells should isolate themselves and do the best job each can do, even if the rest of the body collapses!
  • mcdermottmcdermott Registered User regular
    edited March 2008
    I think I'd have to agree with mcdermott on that one - if the purpose of the right to bear arms is the maintenance of a militia, then it actually does stand to reason that individual weapons like rifles would be kept by individuals, presumably with crew-served weapons stored at wherever that militia bases from.

    Then again, this is also assuming an actual organized militia.

    Actually, you could argue that no organized militia need already exist, but rather than the ability to raise one on demand (by having a citizenry with their own small arms and experience with their use) is all that's strictly necessary. Not something I'd expect an opponent of firearms rights to accept or agree with, obviously, but I think it's a valid argument.

    Montana does not have it's own militia, for instance, but in a relatively short time they could easily organize one because (or so it seems) nearly every male past puberty in this state owns a gun or at least has some experience shooting one.

    Spoiler:
  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Scalfin wrote: »
    The think is, the commas aren't in the places they would be were it simply one of rationale. In the actual Bill of Rights, it 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." While the states use various punctuation, I think we should use the original.
    Now, commas were not used consistently at that time, being place phonetically and spread like buckshot, but these are quite telling, as I cannot imagine anybody pausing in the middle of the militia clause were it being used in the context you assert. So, we now come to what the structure then means, i.e, why would you pause or otherwise shift you pronunciation at those points?
    Well, the most obvious reason is the parenthetical, so that, in informal writing, the amendment might read "A well regulated militia (being necessary to the security of a free state), the right of the people to keep and bear arms shall not be infringed." (the comma is my own interpretation of how it would add together sensibly, as commas often hedge off pathetically and clauses).
    Now, what would this mean? Well, remember the Latinate grammar I keep bringing up? This is where it is applicable. If I remember the ablative absolute (which is what the clause has been identified as) correctly, it is a specification under the circumstances under which the following statement is true. Therefore, we can further read the amendment as "[for] 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."
    Now reading more into the ablative absolute, I may have been overly hasty in assigning parenthesis. A sentence with the same comma usage that has also been identified as the ablative absolute reads "The Americans, (with) their independence secured, formed a government." This would seem to substantiate Merkel and Uviller's analysis: "The linguistically correct reading of this unique construction ... is as though it said: Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the best — if not the only — way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without."
    The key difference between your example and the amendment is that in your example, the word before the first comma is the subject of the main clause: The American formed a government. In the amendment, this is not the case, as the subject of the main clause is "The right of the people to keep and bear arms". We also should not be focusing on the House & Senate version as our only source, since the versions ratified by the states hold just as much legal weight as the versions proposed by congressional vote. In fact, the meaning of the two versions would have to be the same in order for the amendment to be valid. Since the comma placement of the version from the house and senate is ambiguous, that means that we should be looking at the version ratified by the states, which is much less so. (Also looking at prior drafts of the amendment, there is a comma between the subject and verb (or participle) of each clause, including the religious exemption. It may have been done for some kind of symmetry).

    "A well regulated militia being necessary to the security of a free state" is an english construction called an absolute phrase. As you said, it does derive from the ablative absolute. Also like the ablative absolute, it is not a conditional phrase; it provides information, but is not connected grammatically to the rest of the sentence. Rather than meaning "if this is true" or "while this is true", the absolute phrase really just means "this is true".

    The state versions are inconsistent. The single comma is just more common. The one ratified by congress was the original, and so has precedence. It is the one housed in the national archives. I have case law backing me up on this.

    [SIGPIC][/SIGPIC]
    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • DetharinDetharin Registered User regular
    edited March 2008
    They way ive always interpreted the second amendment as a guarantee for the average citizen to own firearms, and that the right to own firearms shall not be infringed. The first part to me is an explanation of why they feel this was vital. If we could ask the founding fathers what they intended i am certain they would tell you it was envisioned as security for the American people. That they would always have the ability in an emergency to stand up as free men and woman and defend themselves against any invader foreign, or domestic.

    People form militias, people form miltias bringing the guns they have and put their lives on the line for their communities. They dont do it 6 months from now, or 9 weeks from now, they do it now. The minute men were called that because they were ready to go at any time. If all the guns are kept in a central location all you accomplish is a butchery of your militia as they show up to be armed.

    I would have a hard time looking the founding fathers in the eye and telling them that they meant only militias founded by the state should have the right to firearms. Times have moved on quite a bit, guns are more deadly, the army more organized, and we are now a world power.

    However the spirit remains the same. Every able bodied man from the ages of 17-45 may in times of extreme crisis be called upon to grab their gun and assemble to defend their lives, family, and freedom. Maybe its not necessary now. Maybe it wont be necessary in a hundred years, or a thousand. As long as this nation endures it may not be necessary at all, but only a fool would say for sure it would never be necessary.

    I can find no logical arguement to deny law abiding men and woman the right to bear arms.

    If I was kidnapped, woke up in a lab, told they were going to replace my vocal cords with those of Tony Jay, and lock me in a sound booth until the day I die I would look those bastards right in the eye and say "Alright you sons of bitches lets do this. This one is for the children."
  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Everybody isn't even close to well regulated. Why is it so hard to understand that?
    And infringed only means eliminated, I believe. That means that your second amendment right, even an individual right, has not been broken unless the law says "no weapons."

    [SIGPIC][/SIGPIC]
    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • DetharinDetharin Registered User regular
    edited March 2008
    Scalfin wrote: »
    Everybody isn't even close to well regulated. Why is it so hard to understand that?
    And infringed only means eliminated, I believe. That means that your second amendment right, even an individual right, has not been broken unless the law says "no weapons."

    Because its a bullshit interpretation designed to justify a political agenda?

    Because do you really feel after fighting a WAR against the army based on civilians armed with their home defense/hunting rifles they really only meant for guns to be in the hands of the army/ the state to hand out in times of crisis but only to men between the ages of 17-45 and once a male turns 46 he would need to turn in or give away his firearms?

    If I was kidnapped, woke up in a lab, told they were going to replace my vocal cords with those of Tony Jay, and lock me in a sound booth until the day I die I would look those bastards right in the eye and say "Alright you sons of bitches lets do this. This one is for the children."
  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Detharin wrote: »
    Scalfin wrote: »
    Everybody isn't even close to well regulated. Why is it so hard to understand that?
    And infringed only means eliminated, I believe. That means that your second amendment right, even an individual right, has not been broken unless the law says "no weapons."

    Because its a bullshit interpretation designed to justify a political agenda?

    Because do you really feel after fighting a WAR against the army based on civilians armed with their home defense/hunting rifles they really only meant for guns to be in the hands of the army/ the state to hand out in times of crisis but only to men between the ages of 17-45 and once a male turns 46 he would need to turn in or give away his firearms?

    No, I mean it has to be subject to regulations, besides being between ages 17 and 45, like, maybe, you can't be a klansman, in prison, or something along those lines. I mean, seriously, do you think the founding fathers would have ever called the military-age male populace of the colonies "well regulated?" Have you never read or heard about what was going on in the south during the war?

    [SIGPIC][/SIGPIC]
    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • DetharinDetharin Registered User regular
    edited March 2008
    Scalfin wrote: »

    No, I mean it has to be subject to regulations, besides being between ages 17 and 45, like, maybe, you can't be a klansman, in prison, or something along those lines. I mean, seriously, do you think the founding fathers would have ever called the military-age male populace of the colonies "well regulated?" Have you never read or heard about what was going on in the south during the war?

    Because Klansman should forfeit their rights?

    The Amendment has absolutely nothing to do with requiring you to be in a well regulated militia. At all. Its to protect the peoples ability to form a "militia" in the time of need to protect themselves. The government does not need an amendment to be allowed to arm people in times of crisis. The government does not need a law to allow to it give soldiers weapons. These things have been going on since the first hunter gave the first gatherer a rock right before the dinosaurs attacked.

    Perhaps you should devote more attention to "The right of the people to keep and bear arms shall not be infringed" and less to trying to abstractly define well regulated. If the 2nd amendment had said "The right of the people to keep and bear arms shall not be infringed". Would we be having this discussion?

    Do you really think when the states got together to discuss this historic document they were thinking "Hey lets make sure we can give our militiamen firearms." Has any of the actions, of the states, ANYWHERE, in the first hundred years indicated they did not expect their citizens to own, know how to use, and be proficient in firearms so that they might protect themselves and their country in times of crisis.

    Tell you what, why not just check out the Miltia act of 1792.


    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 power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; 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.



    This pretty clearly spells out the government expected every male between the ages of 18-45 to own a gun. Every, single, one of them. By law. Yet this bullshit that the 2nd amendment is refering to arming militias continues to be propagated. Its a bullshit interpretation designed to forward a political agenda that has a pesky amendment in the way.

    The amendment is there to PREVENT the government from taking away its citizens right to own firearms.

    If I was kidnapped, woke up in a lab, told they were going to replace my vocal cords with those of Tony Jay, and lock me in a sound booth until the day I die I would look those bastards right in the eye and say "Alright you sons of bitches lets do this. This one is for the children."
  • ScalfinScalfin __BANNED USERS regular
    edited March 2008
    Detharin wrote: »
    Scalfin wrote: »
    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 power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; 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.

    Oh look, regulations and nomenclature indicating a solid organizational structure. Now, have you been enrolled by the captain of your company? No? Then you're not in the militia.

    I find it exceedingly odd that you seem to read the words "well regulated" as meaning "any," while I can't find anything in Webster's to that effect.

    This interpretation is not new. In fact the first court opinion touching on the second amendment (Bliss v. Commonwealth was based upon the Kentucky state constitution, which was much more sweeping) agreed with my analysis, as did every single court since then up until 2001, which used a definition of bear that wasn't around at the time of the amendment's adoption, and only once after that, in the case being discussed.

    [SIGPIC][/SIGPIC]
    The rest of you, I fucking hate you for the fact that I now have a blue dot on this god awful thread.
  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    Scalfin wrote: »
    Scalfin wrote: »
    The think is, the commas aren't in the places they would be were it simply one of rationale. In the actual Bill of Rights, it 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." While the states use various punctuation, I think we should use the original.
    Now, commas were not used consistently at that time, being place phonetically and spread like buckshot, but these are quite telling, as I cannot imagine anybody pausing in the middle of the militia clause were it being used in the context you assert. So, we now come to what the structure then means, i.e, why would you pause or otherwise shift you pronunciation at those points?
    Well, the most obvious reason is the parenthetical, so that, in informal writing, the amendment might read "A well regulated militia (being necessary to the security of a free state), the right of the people to keep and bear arms shall not be infringed." (the comma is my own interpretation of how it would add together sensibly, as commas often hedge off pathetically and clauses).
    Now, what would this mean? Well, remember the Latinate grammar I keep bringing up? This is where it is applicable. If I remember the ablative absolute (which is what the clause has been identified as) correctly, it is a specification under the circumstances under which the following statement is true. Therefore, we can further read the amendment as "[for] 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."
    Now reading more into the ablative absolute, I may have been overly hasty in assigning parenthesis. A sentence with the same comma usage that has also been identified as the ablative absolute reads "The Americans, (with) their independence secured, formed a government." This would seem to substantiate Merkel and Uviller's analysis: "The linguistically correct reading of this unique construction ... is as though it said: Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the best — if not the only — way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without."
    The key difference between your example and the amendment is that in your example, the word before the first comma is the subject of the main clause: The American formed a government. In the amendment, this is not the case, as the subject of the main clause is "The right of the people to keep and bear arms". We also should not be focusing on the House & Senate version as our only source, since the versions ratified by the states hold just as much legal weight as the versions proposed by congressional vote. In fact, the meaning of the two versions would have to be the same in order for the amendment to be valid. Since the comma placement of the version from the house and senate is ambiguous, that means that we should be looking at the version ratified by the states, which is much less so. (Also looking at prior drafts of the amendment, there is a comma between the subject and verb (or participle) of each clause, including the religious exemption. It may have been done for some kind of symmetry).

    "A well regulated militia being necessary to the security of a free state" is an english construction called an absolute phrase. As you said, it does derive from the ablative absolute. Also like the ablative absolute, it is not a conditional phrase; it provides information, but is not connected grammatically to the rest of the sentence. Rather than meaning "if this is true" or "while this is true", the absolute phrase really just means "this is true".

    The state versions are inconsistent. The single comma is just more common. The one ratified by congress was the original, and so has precedence. It is the one housed in the national archives. I have case law backing me up on this.
    Congress does not ratify amendments; Congress proposes amendments and the states ratify them. Since the Second Amendment was ratified, we can only interperet it in such a way that the version proposed by congress, as well as at least 3/4 of the versions ratified by the states have the same meaning.

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • mcdermottmcdermott Registered User regular
    edited March 2008
    Scalfin wrote: »
    No, I mean it has to be subject to regulations, besides being between ages 17 and 45, like, maybe, you can't be a klansman, in prison, or something along those lines.

    You highlight this word, as if it has some special relation to the second amendment. When, in fact, it's quite possible they meant and entirely different definition of "regulated" that has nothing to do with having legal "regulations" restricting who is part of it.

    Regardless, obviously restrictions on this right are allowable just as they are allowable for every other right. Preferably under the strict scrutiny standard.
    Scalfin wrote: »
    Everybody isn't even close to well regulated. Why is it so hard to understand that?
    And infringed only means eliminated, I believe. That means that your second amendment right, even an individual right, has not been broken unless the law says "no weapons."

    Really? So the only thing that qualifies as an "infringement" is an absolute and complete ban? Because I'm pretty sure that's not the case. I'm pretty sure infringement is not a binary condition, and that it's quite possible to infringe on this right in other less restrictive ways.

    But, again, this doesn't mean any regulation of firearms ownership is automatically unconstitutional.
    Oh look, regulations and nomenclature indicating a solid organizational structure. Now, have you been enrolled by the captain of your company? No? Then you're not in the militia.

    However, I have been enrolled by the Selective Service system. And, should I be called up for duty, there are a plethora of officers waiting to command me.

    EDIT: And this still doesn't address the fact that the first clause is a declaration of purpose, not a restriction. We can go back and forth on the definition of a "well-regulated militia" but the right is still one of the people, at least for as long as our constitution says that militia is necessary. Which, of course, is why it doesn't read, "A well regulated militia being necessary to the security of a free State, the right of the members of that militia to keep and bear arms shall not be infringed."

    Spoiler:
  • Knuckle DraggerKnuckle Dragger Explosive Ovine Disposal Registered User regular
    edited March 2008
    mcdermott wrote: »
    Scalfin wrote: »
    Oh look, regulations and nomenclature indicating a solid organizational structure. Now, have you been enrolled by the captain of your company? No? Then you're not in the militia.

    However, I have been enrolled by the Selective Service system. And, should I be called up for duty, there are a plethora of officers waiting to command me.

    Aside from the fact that the 1903 act replaced the 1792 act, you also have to ask whether they would grant the right only to the militia, considering the composition of the militia was determined by the federal government.

    sig-2699.jpg Iosif is friend. Come, visit friend.
  • DetharinDetharin Registered User regular
    edited March 2008
    mcdermott wrote: »
    Scalfin wrote: »
    Oh look, regulations and nomenclature indicating a solid organizational structure. Now, have you been enrolled by the captain of your company? No? Then you're not in the militia.

    However, I have been enrolled by the Selective Service system. And, should I be called up for duty, there are a plethora of officers waiting to command me.

    Aside from the fact that the 1903 act replaced the 1792 act, you also have to ask whether they would grant the right only to the militia, considering the composition of the militia was determined by the federal government.

    The act itself has been replaced, HOWEVER, the reason this is important it is helps us glimpse the intentions of the founding fathers in adding the amendment at all. If we are to believe that the second amendment applies only to arming members of a militia, and state that is what the framers had in mind, then this clearly demonstrates what our founding fathers thought a militia to be. Every able bodied man between the ages of 18-45. Who was expected to OWN and PROVIDE his own firearm. This indicates the government never intended to arm or provide arms to the militia. Because they were supposed to, under their 2nd amendment protected rights, purchase a firearm and sufficient supplies so that were they ever called up they could fight for their country.

    This clearly indicates the founding fathers intent. That every able 18-45 year old american be armed, and is consistant with the interpretation that the 2nd amendment is there to protect and individuals right to own firearms. That the founding fathers foresaw a day when someone might try and disarm the populous.

    To quote from earlier in the thread read what Justice Scalia says

    JUSTICE SCALIA: I don't see how there's
    any, any, any contradiction between reading the second
    clause as a -- as a personal guarantee and reading the
    first one as assuring the existence of a militia, not
    necessarily a State-managed militia because the militia
    that resisted the British was not State- managed. But
    why isn't it perfectly plausible, indeed reasonable, to
    assume that since the framers knew that the way militias
    were destroyed by tyrants in the past was not by passing
    a law against militias, but by taking away the people's
    weapons -- that was the way militias were destroyed.
    The two clauses go together beautifully: Since we need
    a militia, the right of the people to keep and bear arms
    shall not be infringed.

    I think this says it beautifully. Our founding fathers, considering every able bodied male between the ages of 18-45 as a member of the militia state quite clearly that a well regulated militia IE the men of these united states being able and willing to come forth in times of crisis if called to defend their country being NECESSARY for a FREE State, the right of the people IE everyone to keep and bear arms shall not be infringed.

    The founding fathers are pretty clear on what they intended. The doubt in the wording only obfuscates the issue. First we ignore their intent, then we cast doubt upon their wording, then we begin to infringe upon the rights. Its all to follow a bullshit political agenda. They know they cant repeal the 2nd amendment, so they try and undermine it and see how much infringement people will endure. If your anti gun, thats fine. However dont start twisting the words of our founding fathers we know what they intended, we know what they wrote. Other drafts are quite clear on the intention they were going for. But dont try and claim that your version of history is right. The system exists to wipe the 2nd amendment out, use it.

    Maybe you feel the militia is outdated, and the national guard is all we need. I would say that we can never know what will happen in the future, and just because we cant forsee a situation where every able bodied man isnt grabbing grandpas old rifle to fight and die beside his neighbors protecting his family doesnt mean one wont occur.

    If I was kidnapped, woke up in a lab, told they were going to replace my vocal cords with those of Tony Jay, and lock me in a sound booth until the day I die I would look those bastards right in the eye and say "Alright you sons of bitches lets do this. This one is for the children."
  • LawndartLawndart Registered User regular
    edited March 2008
    Detharin wrote: »
    The act itself has been replaced, HOWEVER, the reason this is important it is helps us glimpse the intentions of the founding fathers in adding the amendment at all. If we are to believe that the second amendment applies only to arming members of a militia, and state that is what the framers had in mind, then this clearly demonstrates what our founding fathers thought a militia to be. Every able bodied man between the ages of 18-45. Who was expected to OWN and PROVIDE his own firearm. This indicates the government never intended to arm or provide arms to the militia. Because they were supposed to, under their 2nd amendment protected rights, purchase a firearm and sufficient supplies so that were they ever called up they could fight for their country.

    Never?

    Let's stroll over to Article I, Section 8 of the Constitution:

    "The Congress shall have Power To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

    While I'm a proponent of gun control, I disagree with the "collective right" interpretation of the 2nd Amendment. I do think there's an individual right to own a firearm.

    However, the Constitutional right of gun ownership is framed within a context of a "well-regulated militia", and both the Congress and the states are explicitly granted that regulatory power by the Constitution. So I don't see how clarifying that the 2nd Amendment establishes an individual right would negate existing gun control laws that fall short of a complete ban.

  • DetharinDetharin Registered User regular
    edited March 2008
    The right of gun ownership is not contained within any context. The right of the people to bear arms shall not be infringed. Look at the actually act the government passed concerning militias barely 30 years later. Its quite clear on what it intends.

    When they wanted to require militiamen to own a particular set of arms is Patrick Henry refering only to militiamen when he says "The great object is that every man be armed, but can the people afford to pay for double sets of arms?" or " The "militia, sir, is our ultimate safety, the great object is that every man be armed . . . every one who is able may have a gun."

    Or how about James Madison when he states "The advantage of being armed, which the Americans possess over the people of almost every other nation." and "It may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it."

    Or Richard Henry Lee "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."

    Should i also point out that the Constitution itself, as you wrote, already provides for the government to arm a militia. Why redundantly include that in a bill of individual rights? They didnt, they wouldnt. The second amendment is clear. Our founding fathers are clear. If you have any doubt about what our founding fathers intended read the Federalist Papers. Read their own words on the subject.

    Saying its so doesnt make it so. Ive quoted our founding fathers, quoted the governments own laws on militias at the time. The proposition put forth that the 2nd amendment applies only to members of a militia is without merit.

    If I was kidnapped, woke up in a lab, told they were going to replace my vocal cords with those of Tony Jay, and lock me in a sound booth until the day I die I would look those bastards right in the eye and say "Alright you sons of bitches lets do this. This one is for the children."
  • Not SarastroNot Sarastro __BANNED USERS regular
    edited March 2008
    mcdermott wrote: »
    Besides which, you're being an idiot. The odds that I'd be in a situation where I would use a gun for home defense are remote (though again, it's arguable that private gun ownership may help make it even less likely). But the odds that I'd use a fucking RPG for home defense (or self defense) are beyond remote. They're essentially zero.

    See, but though that argument works for escalation of arms size, it doesn't work for minimisation. Why does nobody protest laws against carrying flick-knives and such if they are pro-gun?

    Also, I think your argument also totally precludes the need for automatic weapons or certain types of ammunition, which tend to be a progun defence bugbear. The chances of you hitting innocent bystanders or rounds penetrating walls and hitting your neighbour are significantly increased if you have a 30-round full auto with armour piercing rounds, no?

Sign In or Register to comment.