Meaning of 2nd Amendment

[doojie]

 The leftists argue that the first clause in the 2nd amendment says we already have "militias" ion the form of the National Guard and the military, so there is no need for the right to bear arms. I recently challenged this thinking via letters to the editor in my local newspaper.

 James Madison clearly challenges this notion in "The Federalist 46".  The militia mentioned in the 2nd amendment is not referring to standing armies, but opposition to those armies by "a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties...."

 As Madison opointed out, the militia would be maintained by the states in order to eliminate the very standing armies that Lincoln created to destroy the Constitution itself.

 But more important, the 2nd amendment was listed in the Bill of Rights not to limit federal government, but to empower the states against the federal government. This is also pointed out by Yale law professor Akhil Reed Amar, who further points out that "guns" are nowhere listed in the amendment.

 The second amendment lists the right to bear arms and the right to form militias as a defense against the federal government only because rifles were the main weapon of armies and militias. But if the 2nd amendment was actually about empowerment of the people, then whatever arms thwe federal govwernment developed, the people themselves had the right to bear those arms. If the feds have nuclear weapons, citizens have the right to carry nuclear suitcase bombs. Either that, or the feds must limit their armaments so that the people can challenge the power of the feds equally.

 The feds will not "incorporate" the 2nd amendment under the 14th amendment for that reason.  The "spirit of equality" engendered by the 14th amendment would requre the feds to honor the full intent of the 2nd amendment by empowering the states or disempowering the feds. For that reason, the feds leave the decision to the states, but use their power of federal grants to keep the states aware of the real power.

 The federal government would rather have citizens fight among themselves with handguns than admit that the 2nd amendment is really about empowering the people against the feds.

[CB750]

I think whenever there is a discussion about an ammendment we should actually post the ammendment.


http://www.usconstitution.net/const.html#Am2

Amendment 2 - Right to Bear Arms. Ratified 12/15/1791. Note

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.

Here is also their note topic about this
http://www.usconstitution.net/consttop_2nd.html

Now of course this is an opinion piece article so I don't know how much weight this carries. Kind of like liberals defining "conservative" in wikipedia.

[roland]

The leftists argue that the first clause in the 2nd amendment says we already have "militias" ion the form of the National Guard and the military, so there is no need for the right to bear arms. I recently challenged this thinking via letters to the editor in my local newspaper.

 James Madison clearly challenges this notion in "The Federalist 46".  The militia mentioned in the 2nd amendment is not referring to standing armies, but opposition to those armies by "a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties...."

 As Madison opointed out, the militia would be maintained by the states in order to eliminate the very standing armies that Lincoln created to destroy the Constitution itself.

 But more important, the 2nd amendment was listed in the Bill of Rights not to limit federal government, but to empower the states against the federal government. This is also pointed out by Yale law professor Akhil Reed Amar, who further points out that "guns" are nowhere listed in the amendment.

 The second amendment lists the right to bear arms and the right to form militias as a defense against the federal government only because rifles were the main weapon of armies and militias. But if the 2nd amendment was actually about empowerment of the people, then whatever arms thwe federal govwernment developed, the people themselves had the right to bear those arms. If the feds have nuclear weapons, citizens have the right to carry nuclear suitcase bombs. Either that, or the feds must limit their armaments so that the people can challenge the power of the feds equally.

 The feds will not "incorporate" the 2nd amendment under the 14th amendment for that reason.  The "spirit of equality" engendered by the 14th amendment would requre the feds to honor the full intent of the 2nd amendment by empowering the states or disempowering the feds. For that reason, the feds leave the decision to the states, but use their power of federal grants to keep the states aware of the real power.

 The federal government would rather have citizens fight among themselves with handguns than admit that the 2nd amendment is really about empowering the people against the feds.

Actually, not all leftists believe this.  Lawrence Tribe, who is not exactly a bastion of the conservative right wing, did a study of the intent of the Framers re this issue a few years ago, and to his credit admitted that he had previously been incorrect, and that the purpose of the Second Amendment was to guarantee the right of the individual citizen to own and employ arms for self defense.

-Roland

[CB750]

individual citizen to own and employ arms for self defense.

And specifically in self defense against the state I might add.

[doojie]

 Yes, agreement to the various posts.  Madison made it very clear, due to the actual conditions surrounding ratification of the Constitution, that a well regulated militia AND personal right to bear arms are necessary.

 By focusing on the right of handgun/rifle ownership, we miss the larger intent of the amendment, which is to empower the states and give them opportunity to challenge the power of the federal government.

 To incorporate the 2nd amendment under the 14th amendment would "federalize" the 2nd amendment so that this empowerment would havwe to be applied as an equal empowerment to the states. This will not be allowed by our Supreme Court. However, due to the nature of the 2nd amendment, it doesn't require the approval of the Supreme Court, since the very point was to allow equal empowerment between states and federal government. The  amendment simply cannot be incorporated under the 14th amendment because of the problems it would cause to the feds.

 States, therefore, are allowed regulation of firearms as rifles/handguns or "weapons of mass destruction" without recognizing the more important aspect for which the amendment was created in the first place: to empower the states equally with the federal government.

 Today, the second amendment is being employed technologically by bypassing the strict interpretation of firearms. The internet is a far more equalizing power, and it is being used in the fashion that the 2nd amendment was originally intended, to empower individuals against the state and against the feds.

 The "right to bear arms" is not precisely defined, but since "arms" were primarily rifles(which the literate Bostonians actually improved with a rifled barrel to outshoot the British Brown Bess), the implications historically would be that whatever arms are developed by the feds should be equally employed by the states.

 Consequently, "a well regulated militia being necessary to a free state", would be translated into  " a well developed communication system being necessary to inform a free people, the right to bear arms shall not be infringed".

[roland]

...
 Consequently, "a well regulated militia being necessary to a free state", would be translated into  " a well developed communication system being necessary to inform a free people, the right to bear arms shall not be infringed".

Overcomplicated and somewhat confusing.  If you have to rewrite it, call a spade a spade:  "The ability to overthrow the government being necessary to a free state remaining free, the individual right to keep and bear arms shall not be regulated, infringed, or impaired in any manner".

-Roland

[doojie]

There you go. That's how we need to translate it every time.

[Niall]

Personally, I don't understand why libertarians in the U.S get caught up in all this endless fussing and bickering about what their constitution does or doesn't say or how the wording of the second amendment should be interpreted and the like when it comes to defending their right to own guns, because that debate is totally unecessary for one simple reason...

Self-defense against aggression is an inalienable right. And once you accept this premise, then it logically follows that one should have access to the best possible means of doing this. This is the argument I typically use when I'm arguing with someone who tries to tell me that we don't have any legally protected "right to keep and bear arms" here like the Americans do. (And they're usually very surprised when I tell them this is a common fallacy which is not true. ) In other words, everyone has a right to keep and bear arms for their own self defense. Wether or not the state recognizes that right has absolutely no bearing on its legitimacy.

I've had a few moments where I wished I owned a handgun. But I don't simply because it's practically impossible to do so legally here unless you're a member of a certified target shooting club and because I'm too faint of heart to take the risks involved in purchasing one illegally on the black market.

[roland]

Personally, I don't understand why libertarians in the U.S get caught up in all this endless fussing and bickering about what their constitution does or doesn't say or how the wording of the second amendment should be interpreted and the like when it comes to defending their right to own guns, because that debate is totally unecessary for one simple reason...

Self-defense against aggression is an inalienable right. And once you accept this premise, then it logically follows that one should have access to the best possible means of doing this. This is the argument I typically use when I'm arguing with someone who tries to tell me that we don't have any legally protected "right to keep and bear arms" here like the Americans do. (And they're usually very surprised when I tell them this is a common fallacy which is not true. ) In other words, everyone has a right to keep and bear arms for their own self defense. Wether or not the state recognizes that right has absolutely no bearing on its legitimacy.

I've had a few moments where I wished I owned a handgun. But I don't simply because it's practically impossible to do so legally here unless you're a member of a certified target shooting club and because I'm too faint of heart to take the risks involved in purchasing one illegally on the black market.

The people who wrote and signed the US Constitution made a strong effort in the Bill of Rights to codify the liberties that should be enjoyed by every human.  They did not achieve perfection in that endeavor, and the document has been indifferently (at best) upheld by the Federal Government, but it was/is a unique effort even so, and is deemed worthy of acknowledgement even by some of us who have become anarchists.  Also, it is a binding contract on the Federal Government, and as such should not be ignored as a tool for advocates of the right to self-defense.  If you are asking if it occasionally dilutes the purity of advocating that right on the grounds that you articulated (which are certainly valid) I would have to admit that is probably true.

I used to know a couple of people on Whidbey who went armed.  Don't know if they paid attention to regs or not.  If I recall correctly, one of them kept a couple of cougars, so the answer is probably "not" :->

-Roland

[doojie]

Your conclusions are correct. If you notice, the 2nd amendment says that the right to keep and bear arms "shall not be infringed".

 IOW, the right to bear arms already existed, and one can trace that right back through ancient english laws. No right was created by the second amendment, or any of the other amendments in the Bill Of Rights. They were simply recognized as such, and listed to get the Constitution approved.

 Constitution or no Constitution, the government cannot infringe a right which already exists. But of course it does, which is why we have to always be vigilant against government.

[doojie]

BTW, that word "infringed", assuming it had the same meaning back then, means that there can be no fringes or "borders" placed around the law. IOW, it can't be limited by deciding "what's best" for citizens "for theirf own good".

 Also, the Supreme Court will not act to "incorporate" it into 14th amendment protection, because to do so, the Court would have to recognize that the 2nd amendment empowers the state. Whatever weapons the Feds own, the state has the right to the same weaponry, and so do the citizens, which means, either we can carry around nuclear suitcase bombs, or the feds must limit their own power to control and use weapons of aggression.

 That is why the Supremes do no not like to make decisions regarding the 2nd amendment and its application under the 14th. If they do, the US government will have to disarm, or citizens will be allowed equal access to weapons to maintain their own freedom.

[Lorianne W]

A liberal's lament: The NRA might be right after all
http://blogs.usatoday.com/oped/2007/10/a-liberals-lame.html

This term, the Supreme Court may finally take up the Voldemort Amendment, the part of the Bill of Rights that shall not be named by liberals. For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is "the right of the people to keep and bear arms." Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. Yet, two related cases could now force liberals into a crisis of conscience. The Supreme Court is expected to accept review of District of Columbia v. Heller and Parker v. District of Columbia, involving constitutional challenges to the gun-control laws in Washington.

The D.C. law effectively bars the ownership of handguns for most citizens and places restrictions on other firearms. The District's decision to file these appeals after losing in the D.C. appellate court was driven more by political than legal priorities. By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech.