"... shall not be infringed."

[Kulindahr]

From another thread:

We've had a state-wide concealed weapons law in effect in Kentucky for a long time. There was a furor when it was enacted; many people eblieved it would lead to more shootings and more arrests. But that hasn't been the case. I can't recall one news story of where any of the fears have been realized here.

And while Kentucky is a conservative state, there are many "blue" zones, including Lexington. We're about the same size as Colorado Springs. And my experience has been that the issue of gun control is not unlike the various smoking ordinances. Tobacco and guns are, for now, legal. In fact guns are protected by the Constitution.

With so many issues on the table for this election cycle, I just don't see concealed weapons as being a winning issue for the Dems. But there are steps that can be tightened on the existing laws, particularly the sale of guns during gun shows.

At present in Kentucky and many other states, it is legal to sell guns at flea markets and call it a "gun show." The standard background check, I believe, is waived for purchases at gun shows.

There is absolutely no reason for guns to be sold at flea markets, and we could tighten up that law, and probably some others, too.

I put what is probably the most important bit of that post in bold. What's interesting is that the rest of the post proceeds to miss just what that protection means. Note, by the way, the word "protection" -- it implies what is assumed by all the amendments in the Bill of Rights, namely that rights are not granted by government, but exist apart from it, and it is the job of the government to protect them; in fact, it is the primary job of government to do so.

The key word in the Second Amendment is "infringed". Today it has become primarily a legal term, so we miss the meaning -- which is easy enough to illustrate:
Think of pictures of eighteenth-century frontiersmen -- they frequently had clothes with a row of sort of losse heavy-duty threads hanging off, what were actually the ends of leather cords evenly spaced. A "fringe" is "a decorative edge of hanging narrow strips of material or threads on a piece of clothing or material"; today they're found more on tablecloths than anywhere, or on bedspreads or shawls. So "to infringe" means to touch or intrude on the fringe.
Note that the fringe is not critical to the garment (or tablecloth, etc.); it is extraneous, for looks more than anything. That gives a clue as to what the Constitution's writers meant by the term "infringe": to not even mess with totally peripheral issues. The purpose was to be certain that the actual substance of the right never got even bothered -- something clearly understood in America for generations.
So what the amendment means is "the right of the people to keep and bear arms shall not be even remotely bothered in the least".

The meaning of that is plain: no restrictions or hindrances of any kind can be placed on the right to keep and bear arms. Any law that has anything to do with the ability of a member of "the people" to keep and/or bear arms is flat-out unconstitutional. Essentially that boils down to this simple rule: there can't be any laws about gun ownership, acquisition, transport, or any such thing; in fact, if what the Founding Fathers wrote elsewhere is taken into account, any law that mentions guns at all is unconstitutional -- because it intrudes on the fringe, on the non-essential but protected part of the matter.

So rules about sales at gun shows are out, without a doubt. In the face of the word the Constitutional convention and the states which ratified chose, there isn't any maneuvering room on this; at guns shows, flea markets, county fairs, barber shops, K-Mart, or a downtown street corner, there can't be any rules or restrictions, at all, period.
And rules about how many a person can buy in some arbitrary time period, or waiting before a purchase can be completed, or even background checks, aren't allowed: those matters are part of the fringe. Taxes, fees, licenses -- not legitimate (the Supreme Court has ruled on more than one occasion that anything having to do with a Constitutional right cannot be linked to payment of money).
In fact, there isn't any law on the books in this country that says anything about guns, unless it adds protection to the Constitutional one, which has any legal standing under the supreme law of the land.

One thing people don't get here is that the words in the Second Amendment are the strongest of any protection in the Bill of Rights. "... shall not be infringed" is more powerful and all-encompassing than the more common "shall make no law", because it includes matters not even directly related. People fight with all their might, and go to jail, for their First Amendment rights, regularly. But the protection offered by the Second Amendment goes much farther than the broad interpretations won by those efforts for freedom of speech and of the press. Laws now on the books for firearms, if applied to the press, would mean every writer and reported for any media would have to undergo a background check, often submit to training, be fingerprinted, and pay a fee every year or two, just to be allowed to exercise "freedom of the press". Applied to freedom of speech, those laws would require us to wait three days, or have a license, or stay outside city limits, in order to state our opinions on anything. Would Americans ever stand for such oppression? Hardly -- and yet in very fact we do, every day, with respect to our right to dignity and "life, liberty, and the pursuit of happiness"!
If I can't carry the weapon of my choice in the fashion I prefer wherever I decide I ought to, I have no right to life, because anyone who wishes to can attack me and kill me, because I cannot defend myself. My dignity as a person has been denied if those things -- if any of those things! -- is true, because such rules deny that my life has value. If I wish to be safe, then, I must hide -- avoid areas where there might be risk, don't go out during hours when the lawless roam, all to keep my life... but then I have no liberty; my life is fenced about by the lawless, both those on the streets and those who have decreed that I should be a victim. Under such constraints, wherein is any happiness? If a person can be happy in such circumstances, he/she is a sorry sort of man; rather, ought to be considered a mouse, in a cage, happily pretending the bars aren't there.

That the Founding Fathers chose to make this the strongest amendment of all, the most heavy-duty protection, speaks volunes about the matter's importance. In context of their wording, Charleton Heston was correct: this was the most important of the amendment's, guarding what is justifiably called "America's First Freedom" -- which it is, historically; it is the exercise of that freedom that made America.
And today's indifference to the regular and methodical infringement of that right speaks a multiplicity of volumes about what has happened to the great experiment launched in 1776: we are, truly, no longer a nation of free persons, we are rather what the title of a valuable book says, A Nation of Cowards. We will stand up for our comforts, our special privileges, our government money (taken from other people!), but we will not stand up for the one thing that guards our personal dignity: the right to keep and bear arms.

[looseliam]

withdrawn/deleted

[centexfarmer]

Ya know, Kulindahr, in all fairness I must admit that for awhile there I saw you as one of those "single issue" libertarians. A National Rifle Association Gay, and that's it!

I honestly want to thank you for this post, because you've put things into perspective for me...not only in how you view the issue, but in all honesty how anyone who reveres the U.S. Constitution should view Amendment II. IMHO.

I'm not a big gun owner. In fact I really don't know much about them; caliber, semi-automatic from automatic.

In fact, I've argued in this very Forum, that we should take things to the next logical step, and allow me to become a nuclear power in my own right on my 23.5 acre farm in Central Texas.

Because as I understood the reasoning behind our Forefathers II Amendment, it was to be able to defend ourselves from our own Government.

Texas has a "concealed hand-gun" law. In fact it's one of the reasons (some claim) that George W. Bush defeated Ann Richards back in 1994 to take over the Governor's Mansion in Austin, Texas.

[2] Other people attribute her loss to the fact that she vetoed the Concealed Carry Bill that would have allowed licensed citizens to carry guns for self-defense inside public establishments without the owner's permission (see Gun politics in the United States).

Well she lost that election for a lot more reasons than that, but ask a Texas member of the National Rifle Association that's what they'll tell ya.

I'm not attempting by any measure to be sarcastic in my response to you here.

As I stated, I'm not a "gun nut."

However owning a farm, and being out in the solitude of "the country" I feel the need more than ever to "protect myself."

Having a 20 gauge double pump shot-gun is not only good for killing Diamond Back Rattlers, it makes for a good deterrent against "Meth-heads" who've mistaken your meadow for a place to "tweak-out."

From what you've posted, I'm feeling pretty safe from my Government provided that I don't attempt to carry that protection into town. (Since I'm not "licensed" to carry a concealed hand-gun...and how am I going to conceal a shot-gun?)

What you're telling me is that "Constitutionally" I don't need a friggin licence.

I have more to say on the topic, but I'll wait to see what you or others post.

[Kulindahr]

looseliam said something about the first clause of the Second Amendment, and then it got withdrawn -- actually it was a very good point!

Here's the whole thing:

"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."

Contrary to the opinion of people who feel the need to twist and mangle grammar to support their agenda, that beginning isn't a restrictive clause, but an explanatory one. Here's how it could read in today's terms:

"Because a well-organized and -trained militia is necessary to the security of a free nation, the right of the people to own and carry weapons shall not be bothered even peripherally."

BTW -- spinning off a thought I had in reference to CF's post, I believe that "the security of a free state" begins at home, and thus the amendment protects not only the right to carry weapons for defense of the homeland or to take down tyrants in government, but for defense of home, self, and anyone inmportant to you.

[psychobandit]

DAMN that was well written, Kulindahr. I hope it's o.k., I copied it for future referance.
If it's not o.k., let me know and I'll delete it k?
I see the 2nd Amendment getting attacked all the time so I focus on it, but lately what really shocks me is how many other "Rights" this country has given up and how most people don't seem to have a problem with it because they think it makes them "safer" by giving them up! I hope that made sense, I'm not very good at getting my point across, that's why I want to plagerize
thank you thank you thank you

[hty2]

One of the functions of the U.S. Supreme Court is to review challenges to statutory enactments which might infringe upon the Constitution and the rights granted therein or arising therefrom.

While the language in the 2nd Amendment is relatively clear, there have been many cases brought before the Court which have caused the Court to place interpretations upon that amendment that in essence have allowed both the Congress and the individual states to regulate the possession and use of firearms. Consequently, the "right to bear arms" granted under the Constitution has become the "right to bear arms subject to existing Constitutionally-sound rules and regulations enacted by the various states in order to protect the safety and security of its people."

Strict constructionists are finding the Constitution to be no longer considered a document of relevance because society and the courts no longer agree with their interpretation. Now that the Supreme Court is basing some of its decisions regulating trade, commerce and individual rights on international law, the question must be asked: Is the U.S. Constitution and the Bill of Rights the governing document that protects the rights and liberties of citizens of the United States of America? The answer, I regret to say, is "NO." It is whatever a majority opinion of the Court says it is at a given moment in time.

[iman]

Since a well regulated militia is no longer necessary for the security of the state, as it was in 1776, the second amendment is antiquated and irrelevant.

[Toriko]

Even though it was true in 1776, it was also true when the 2nd Amendment was conceived and ratified with the rest of the Bill of Rights (ratified in 1791). As for the "antiquated and irrelevant" militia a huge majority of Americans, including many all throughout government, would wholeheartedly disagree and most likely throw as defense against your opinion: http://www.ngb.army.mil/About/default.aspx

Some rightfully argue that the National Guard has since lost its standing as a state militia; some like New York state here: http://www.dmna.state.ny.us/nyg/nyg.html

[looseliam]

Well, I withdrew the comment because I've been down this road before.

But here are my thoughts:

The second amendment mentions both the well-organized militia and the right of the people to bear arms. The latter part second amendment by itslef, for me, would absolutely guarantee the right to bear arms.

However, because the framers chose to include "a well-organized militia" into the text, I interpret it as the right of the people in the well-organized militia to bear arms shall not be infringed.

Now, I also hold the National Guard as the state's militia. Whether this is true or not, I don't know. But I'll move on.

I think a well-organized militia is a mute point now. Were a group of people to organize, arm themselves, and either attack the government or defend itself from a perceived threat/wrong, they'd be held as traitors, not as freedom fighters.

I know that when the framers wrote The Constitution, big government was the furthest from their mind. It was the antithesis of what they envisioned for this nation. This is why they wanted to provide the right of the state to protect itself from an oppressive government.

I see now states rights being taken away and, you guessed it, an oppressive government. But that's a rant for another time.

[snapcat]

Kulindahr, you've made a compelling argument for your point of view.

I congratulate you on the time you put into explaining the point.

While everyone may not agree, I think we can all congratulate someone for making a compelling argument.

Guns aren't the biggest issue on my plate right now. And it's always been a losing issue for the Dems. I think we could tighten up and enforce existing gun laws, and if we need to revisit the subject after doing that we could do that.

But arguing for additional gun controls is going to cost millions of votes. And for once, I'm glad to see an election cycle in which "guns, gays, and God" aren't the central theme.

[pjlikesporn]

While the language in the 2nd Amendment is relatively clear, there have been many cases brought before the Court which have caused the Court to place interpretations upon that amendment that in essence have allowed both the Congress and the individual states to regulate the possession and use of firearms. Consequently, the "right to bear arms" granted under the Constitution has become the "right to bear arms subject to existing Constitutionally-sound rules and regulations enacted by the various states in order to protect the safety and security of its people." [/B]

The states have always had the authority to regulate guns. No decision by the SCOTUS has sneakily created such an authority--it has existed since before the Constitution was ratified. Rather, the Second Amendment limits only the national government. In fact, the entire Bill of Rights was meant to apply only to the federal government, but many of the amendments have been extended as limitations on state governments as well. The Second Amendment, however, is not one of these.

[ComNavFdgPk]

Why do people insist upon ignoring the "well regulated" part of that quote? Is it (possibly) because they realize that means the end to all those nut-jobs running around with machine guns and other ultra-high caiber weapons claiming they are for some sort of "sport?"

[Toriko]

Why do people insist upon ignoring the "well regulated" part of that quote? Is it (possibly) because they realize that means the end to all those nut-jobs running around with machine guns and other ultra-high caiber weapons claiming they are for some sort of "sport?"

"Well-regulated" goes with militia (see "well-regulated militia" in the quote above) and not with the right to keep and bear arms which "shall not be infringed."

"Infringed" means "advance beyond the usual limit"... since the limitations are designated by the states since the Second is not incorporated to the states by SCOTUS and the 14th then there should be no federal restrictions at all on gun ownership.

[iman]

Even though it was true in 1776, it was also true when the 2nd Amendment was conceived and ratified with the rest of the Bill of Rights (ratified in 1791). As for the "antiquated and irrelevant" militia a huge majority of Americans, including many all throughout government, would wholeheartedly disagree and most likely throw as defense against your opinion: http://www.ngb.army.mil/About/default.aspx

Most definitions of "militia" define it as a group of non-military citizen soldiers. The army, the Nat. Guard and police forces have supplanted the 18th century militia.

Do you have an opinion on the Second Amendment?

[JDsmagik]

The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

Obviously, I didn't write this. It came from an English Professor.

[Toriko]

Most definitions of "militia" define it as a group of non-military citizen soldiers. The army, the Nat. Guard and police forces have supplanted the 18th century militia.

Princeton defines it as:

-civilians trained as soldiers but not part of the regular army
- the entire body of physically fit civilians eligible by law for military service; "their troops were untrained militia"; "Congress shall have power to provide for calling forth the militia"--United States Constitution

http://wordnet.princeton.edu/perl/webwn?s=militia

Wiki states about the federal law definition that

According to Title 10, USC, Section 311, all able bodied males between the ages of 17 and 45 not serving in the armed forces or state national guard units are considered the unorganized militia, as well as all commissioned female officers of state national guard units.

http://en.wikipedia.org/wiki/Militia#United_States

[iman]

^That's what I said.

Any opinion on the Second Amendment?

[Toriko]

^That's what I said.

Yet, being federal law, you stated that a well-regulated militia for a free state is "antiquated and irrelevant." Again, your opinion isn't really being defended.

To answer your repeated question, yes. However, I'm more concerned with facts. It would be a welcomed change of pace for you to start being so as well.

[seapuppy]

The states have always had the authority to regulate guns. No decision by the SCOTUS has sneakily created such an authority--it has existed since before the Constitution was ratified. Rather, the Second Amendment limits only the national government. In fact, the entire Bill of Rights was meant to apply only to the federal government, but many of the amendments have been extended as limitations on state governments as well. The Second Amendment, however, is not one of these.

Regulate within reason yes. Your at fault in assuming that the "many of the amendments have been extended, but not the Second."

1. ALL of the Amendments are held by every single Ameircan citizen. This is guarenteed by the 9th, but most importantly, by the 14th Amendment to the Constitution. (slavery anyone?). It prohibits States from infringing on the rights of individual citizens as guarenteed in the Bill of Rights. Reasonable regulation has always been permited, (i.e., no atom bombs or grenade launchers, etc.).

2. The National Guard or Reserve is not and never has been legally found to constitute the "militia" defined in the 2nd Amendment. They are and have alwways been part of the "volunteer" reserve regiments and units of the REGULAR forces. In ALL court rulings, "militia" is defined as every abled bodied citizen who CAN bear arms. If one is incarcerated, mentally or physically disabled, or prohibited by law from being a part of the militia, you loose your Second Amendment rights. In 1990 SCOTUS further expanded the idea of every abled bodied citizen, (which has expanded to the unpropertied, women, minorities, etc., over time.) to "The People", which is what every other Ameindment applies to in the B. of Rights. It was one of the rulings that guarenteed the right of foriegn nationals, (with a clean interpol record.), can also bear firearms in America, just as they cannot be denied free speech or trial rights either, (unless engaged in war against us.).

3. ALL our rights, DO NOT ORIGIONATE with the Bill of Rights. There is no such thing as the Bill of Rights. That is a made up name. It is a Bill of Restrictions on GOVERNMENT power, not ours. The framers considered their rights to come from "Providence", from God almighty, NOT from legislative bodies or Constituions.
The Framers considered that ALL men, (in the abstract), have the right of concience, free speech, assembly, faith, self-defence, private property, self-government, etc.

America was the first to enshrine them in a government from the bottom up, instead of the top down, as was the universal standard of the time. They invisioned that ALL men in the world would eventually assert their god given rights and claim back their freedom.

[iman]

Yet, being federal law, you stated that a well-regulated militia for a free state is "antiquated and irrelevant." Again, your opinion isn't really being defended.

I don't know how to make it any clearer. The need to call up citizen soldiers to hide behind trees and bushes no longer exists. Regular forces have supplanted that need, hence; the Second Amendment is antiquated and irrelevant.

[Toriko]

Regulate within reason yes. Your at fault in assuming that the "many of the amendments have been extended, but not the Second."

1. ALL of the Amendments are held by every single Ameircan citizen. This is guarenteed by the 9th, but most importantly, by the 14th Amendment to the Constitution. (slavery anyone?). It prohibits States from infringing on the rights of individual citizens as guarenteed in the Bill of Rights. Reasonable regulation has always been permited, (i.e., no atom bombs or grenade launchers, etc.).

No, the Second Amendment has not been specifically incorporated; SCOTUS seems to fear it as much as the 9th and 10th: http://en.wikipedia.org/wiki/Incorpo...ncorporated.3F

2. The National Guard or Reserve is not and never has been legally found to constitute the "militia" defined in the 2nd Amendment. They are and have alwways been part of the "volunteer" reserve regiments and units of the REGULAR forces.

The United States Code reads, "(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." http://en.wikipedia.org/wiki/United_...National_Guard

3. ALL our rights, DO NOT ORIGIONATE with the Bill of Rights. There is no such thing as the Bill of Rights. That is a made up name. It is a Bill of Restrictions on GOVERNMENT power, not ours. The framers considered their rights to come from "Providence", from God almighty, NOT from legislative bodies or Constituions.
The Framers considered that ALL men, (in the abstract), have the right of concience, free speech, assembly, faith, self-defence, private property, self-government, etc.

The term "bill of rights" were used by both Federalists and Anti-Federalists, of which included members of the Framers. If it is a made up term then it was made up by them. Also, it is foolish to proclaim that all the Framers believed in "God almighty", and it is even unnecessary to mention such a potentially false assertion. The better explanation is that they were familiar with Hobbes, Locke, etc and their philosophies concerning that rights preceded government in the state of nature (hence why the Declaration of Independence makes mention "the separate and equal station to which the Laws of Nature and of Nature's God entitle them" and the neutral use of "Creator" in the next quote) and that the social contract was enshrined for the purpose of creating a limited government to protect rights (in bold is the proof that they were concerned with a social contract, which derives from philosophers that discussed the state of nature: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...").

At the very least, for the universality of the Constitution and purpose of human rights and their perpetuation, it is pointless to link them to a fictitious deity of any religion with its religious laws, morals, and other such nonsense.

[Toriko]

The need to call up citizen soldiers to hide behind trees and bushes no longer exists.

No, they are being asked to die in deserts currently.

Regardless, just because you feel that they are no longer needed, the Constitution states that the federal government does not have that luxury; which is beneficial to the administration as it ships the National Guard off to die on foreign soil.

If you have a problem with the other portion of the Second Amendment, the right to keep and bear arms, then you can go and pry them from Kulindahr's and centexfarmer's fingers---I have no problem with them or the many Americans that own guns and have done or have no intention of ever doing anything criminal with them.

[seapuppy]

No, the Second Amendment has not been specifically incorporated; SCOTUS seems to fear it as much as the 9th and 10th: http://en.wikipedia.org/wiki/Incorpo...ncorporated.3F

Actually, your own source says that incorporation is "uncertian". Incorporation means, if I'm not mistaken, accepted as part of precident in relation to case law. There has simply been VERY few cases that SCOTUS has ever ruled on the specific scope of the 2nd Amendment. The 14th Amendment is still pretty clear in it's prohibition of states from infringing on individual rights guarenteed by the B. of R.

The United States Code reads, "(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." http://en.wikipedia.org/wiki/United_...National_Guard

I stand corrected. It includes the National Guard as well as the broader definition. There still is the 1990 ruling, (U.S. vs. Verdugo-Urquidez), which confirmed that the Second Amendment, like all the other amendments in the Bill of Rights, refered to the "The People", as a whole, not a sub-group.

he term "bill of rights" were used by both Federalists and Anti-Federalists, of which included members of the Framers. If it is a made up term then it was made up by them.

That may be, but nowhere is it called that in the Constitution itself. "Bill of Rights" It has af course ALWAYS been called that unofficially, I was not implying it wasn't. It is however, no such thing. It is and has been a RESTRICTION on GOVERNMENT power, not ours.

Also, it is foolish to proclaim that all the Framers believed in "God almighty", and it is even unnecessary to mention such a potentially false assertion. The better explanation is that they were familiar with Hobbes, Locke, etc and their philosophies concerning that rights preceded government in the state of nature (hence why the Declaration of Independence makes mention "the separate and equal station to which the Laws of Nature and of Nature's God entitle them" and the neutral use of "Creator" in the next quote) and that the social contract was enshrined for the purpose of creating a limited government to protect rights (in bold is the proof that they were concerned with a social contract, which derives from philosophers that discussed the state of nature: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...").

Please point out to me the EXACT sentence where I stated that "ALL framers believed in God." You have a curious habit of making up statements I never posted, then arguing against them as if I did. What is more, you then go on to prove my point for me. Locke, Fergeson, the "scottish enlightenment", "Creator" ,(nuetral?), "natures God"...to whom do you think they are reffering to? Before you start arguing against the Christian Fundementalist you imagine me to be....Most of the founders were NOT fundementalist, (neither am I.), they were unquestionably, at the least Diest, (Tom Paine being the rare athiest.), but in any event, I was not arguing their 'religious' convictions, but their concept of where "rights" come from...which, you curiously go on to state accurately. From Natural Law, derived from Natures "Creator". To pretend that dieistic origions of the Framers concept of rights does not exist is to miss what any first year university student will learn in American History 101. I did at my college. Your bold type of constituted by men... is just silly. Who ever said God "constituted" the Senate or the Postal Service. Not me. Must be another person your arguing with.

At the very least, for the universality of the Constitution and purpose of human rights and their perpetuation, it is pointless to link them to a fictitious deity of any religion with its religious laws, morals, and other such nonsense.

When I start running into statements like this from you, I just chalk it up to your rabid hatred of religion that you have made me completely aware of in other threads. I could post the litterally DOZENS and DOZENS of statements of the Framers in relation to the divine origion of naturl law, but I've learned such excercises are pointless to you.

[opinterph]

Wiki states about the federal law definition that

According to Title 10, USC, Section 311, all able bodied males between the ages of 17 and 45 not serving in the armed forces or state national guard units are considered the unorganized militia, as well as all commissioned female officers of state national guard units.

And for those who may be disinclined to trust Wiki, here’s the actual verbiage:

TITLE 10--ARMED FORCES

Subtitle A--General Military Law

PART I--ORGANIZATION AND GENERAL MILITARY POWERS

CHAPTER 13--THE MILITIA

Sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

http://frwebgate.access.gpo.gov/cgi-...Cite:+10USC311

Civilian participation in the militia is currently and has always been compulsory, according to the circumstances of the time. Of course, there are exceptions for age, gender, and other situations.

The first colonists came to these shores anticipating conflict, and they prepared for it. Each colony formed its own militia, marking the first appearance of the citizen soldier. The militia was founded on the principle that fundamental liberties entailed individual responsibilities. Building a citizens’ army was thus one of the earliest imperatives in our country’s history. As a governor of the Massachusetts colony put it, every male must consider “it his truest honor to be a soldier-citizen.”

The militia was not a voluntary force; every able-bodied man was obliged to possess arms and train periodically, and he was subject to call-up when military needs indicated. Aside from minor variations, the militias were simply organized throughout the thirteen colonies. Service was for short periods at locations close to home. At the heart of the militia was the “muster” a periodic, mandatory gathering of able-bodied free males. The militiamen not only brought their own weapons but also served without pay. Although legislative bodies issued some guidelines, the actual options were left to locally elected militia officers.

http://www.academy.umd.edu/publicati...en_soldier.htm

During the Revolutionary War, Mennonites and Brethren frequently purchased exemptions from military service, while Quakers suffered fines or even confiscation of property for their refusal to enroll in the militia. Over the years, the obvious moral integrity of the conscientious objectors gained them grudging respect and toleration. In his original proposal for a bill of rights, James Madison included the following clause: “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” It is not clear why this clause was not adopted, but the evidence suggests that the framers of the Constitution favored leaving military exemptions to the jurisdiction of the states.

I think the right to keep and bear arms as that relates directly to a well-regulated militia is very obvious.

I also think the right to keep and bear arms in order to prevent a collection of persons who occupy positions of power within government from usurping that power as a means to circumvent liberty is equally obvious.

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.


When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.

http://www.foundingfathers.info/fede...s/fedindex.htm (Alexander Hamilton, Federalist Papers No. 28 )

[Toriko]

Actually, your own source says that incorporation is "uncertian". Incorporation means, if I'm not mistaken, accepted as part of precident in relation to case law. There has simply been VERY few cases that SCOTUS has ever ruled on the specific scope of the 2nd Amendment. The 14th Amendment is still pretty clear in it's prohibition of states from infringing on individual rights guarenteed by the B. of R.

But SCOTUS has typically been hesitant to actually incorporate it. I don't get why it has went the way of selective incorporation.

There still is the 1990 ruling, (U.S. vs. Verdugo-Urquidez), which confirmed that the Second Amendment, like all the other amendments in the Bill of Rights, refered to the "The People", as a whole, not a sub-group.

Don't recall saying otherwise.

It is however, no such thing. It is and has been a RESTRICTION on GOVERNMENT power, not ours.

Don't recall saying otherwise.

Please point out to me the EXACT sentence where I stated that "ALL framers believed in God."

You stated "The framers considered..." The inclusion of "all" is typically unnecessary, however stating "some" would have been wiser.

You have a curious habit of making up statements I never posted, then arguing against them as if I did. What is more, you then go on to prove my point for me. Locke, Fergeson, the "scottish enlightenment", "Creator" ,(nuetral?), "natures God"...to whom do you think they are reffering to?

Whatever sentient something that created existence. The point wasn't to whom they were referring but the fact that rights preexist government.

Your bold type of constituted by men... is just silly. Who ever said God "constituted" the Senate or the Postal Service. Not me. Must be another person your arguing with.

I'm assuming you read my whole post and must have forgotten the exact explanation as to why I put in bold what was in bold.

When I start running into statements like this from you, I just chalk it up to your rabid hatred of religion that you have made me completely aware of in other threads. I could post the litterally DOZENS and DOZENS of statements of the Framers in relation to the divine origion of naturl law, but I've learned such excercises are pointless to you.

There you go again, referring to them as a singular collective: "the Framers". This is why there is a factual concern that triggers my posts.

And my supposed "rabid hatred of religion" is a typical kneejerk reaction by the religious whenever their myths come into play---obviously there is no other alternative, hm? Whatever they are quoted as saying publically or personally as to whom or what they attribute rights has little to do with the purpose of it---as you said. So trotting out 'God' or Zeus or whatever as you did originally was unnecessary philosophically.

[seapuppy]

ICO7, So why are we arguing?

Your objections seem to be that ...

1. I used the term "framers", when I should have used "some". Most people use the term "framers" without exceptions. It IS the standard term. Not only is it not ever meant to imply "all" to the educated, it is always assumed to imply "in general". You'll find it is used as a general term in any number of scholarly text. Everyone who is as intelligent as yourself knows the "framers" were of many different opinions on a number of issues.

2. That I "trotted out Zeus or God."...Hmmm..and why were you thinking that I had an opinion of your rabid anti-religiousness?

I didn't "trot out" anything. It is well established history and knowlege of what "natural law" is. Again, curiously, you quote our Decleration of Independence, which states quite boldly that our "Rights" are "ENDOWED BY OUR CREATOR.'. Damn that Jefferson guy for "trotting out" his religious beliefs!

[Toriko]

Not only is it not ever meant to imply "all" to the educated, it is always asumed to imply "in general". Everyone who is as intelligent as yourself knows the "framers" were of many different opinions on a number of issues.

I'm against hasty generalizations and factual imprecision.

2. That I "trotted out Zues or God."...Hmmm..and why were you thinking that I had an opinion of your rabid anti-religiousness?

Because such an assertion is still an assumption and inconsequential to facts and reality.

I didn't "trot out" anything. It is well established history and knowlege of what "natural law" is. Again, curiously, you quote our Decleration of Independence, which states quite boldly that our "Rights" are "ENDOWED BY OUR CREATOR.'. Damn that Jefferson guy for "trotting out" his religios beliefs!

The term was used neutrally, which prefaces the neutrality of the Constitution itself. Jefferson is the last person a Christian would use for justifying it, what with his wondrous contradictions and ardent deism. Being products of their time, in the Christian-tainted West, it comes as no surprise that they had limited options as to the overlap of philosophy, politics, and religion. Crutching rights on religion is still a bad move as it is counterproductive to the concept of universal, inherent rights. They stand as a self-evident truth no matter if you worship God, Allah, Quetzacoatl, Zeus, Dagon, spirits, Google...

[seapuppy]

I'm against hasty generalizations and factual imprecision.

Then stay away from reading ANY American history. The term is used with such frequency, in exactly the way I used it, that it will drive you to distraction.

Because such an assertion is still an assumption and inconsequential to facts and reality.

I would, but you KEEP giving me consequential facts as to it's validity.

The term was used neutrally, which prefaces the neutrality of the Constitution itself. Jefferson is the last person a Christian would use for justifying it, what with his wondrous contradictions and ardent deism. Being products of their time, in the Christian-tainted West, it comes as no surprise that they had limited options as to the overlap of philosophy, politics, and religion. Crutching rights on religion is still a bad move as it is counterproductive to the concept of universal, inherent rights. They stand as a self-evident truth no matter if you worship God, Allah, Quetzacoatl, Zeus, Dagon, spirits, Google...

I'm not sure how your using the term "neutrally"? If you mean 'non-secterian' sure. I not only never impied anything else, I threw in "Providence" as an homage to the Diest. If you mean, 'they really didn't believe in god.', I'm afraid you are up against a mountain of evidence to the contrary.

Aristotle, the father of "natural law" theory in the West, dirived that theory directly from his supposition of the existance of God. St. Thomas Aquines synthysized it to Christianity. The enlightenment thinkers expanded it to theories of government.

"Christian tainted"? "Crutching" rights on religion? ...more consequential facts... Or gee...maybe they actually arrived at their beliefs with intelligence and conviction, but then, the rabid athiest can't have people of faith having intelligent convictions can they? Far easier to pidgenhole them in ignorance, to be ridiculed by the "enlightened athiest."

They should and could believe in those self evident truths if Allah, Quetzacoatl or Zeus traditions HAD similar traditions of individual rights and worth. They did and do not. That is the reason pre-christian Aristotle departed entirely from trying to equate his therories to a "Zeus" and formulated the basis of a universal God the creator instead that Aquines found so comfortable.

Jefferson would be one of the first defenders of this theory, this Christian would want at my table.

[looseliam]

[Toriko]

Then stay away from reading ANY American history. The term is used with such frequency, in exactly the way I used it, that it will drive you to distraction.

I don't come across definitive "Founders" all that often; usually its abuse is done by those with an agenda. Typically there are some limitations like "some" or even "most".

I'm not sure how your using the term "neutrally"? If you mean 'non-secterian' sure.

Obviously.

...the rabid athiest..."enlightened athiest."

Speaking of pigeonholing, you attempt to make an assumption on who I am as if it somehow discredits my points---none of which you have yet to address because of that "non-fundamentalist" agenda of yours. I don't really care which ones believed what and how; they may think Creator was Jesus; there is nothing gained by grinding your ax whenever you have a chance to connect rights to religion. Especially when so many, too many, think that rights come from the Constitution itself.

That is the reason pre-christian Aristotle departed entirely from trying to equate his therories to a "Zeus" and formulated the basis of a universal God the creator instead that Aquines found so comfortable.

If Aristotle did that it is because he got it from Plato. There's evidence of that in the Republic. However, Maimonides and Averroes, Jewish and Muslim respectively, both attempted to do so for their religions. Aquinas pulled it off with his Christian spin. Deists spun it again, although a bit in the different direction. None of this is overly relevant.

Religion has nothing to do with our rights; that's the point of neutrality. The Founders did it---and I can say that collectively because of their consensus on the Declaration of Independence (and its use of 'Creator' and 'nature's God') and the US Constitution (and its silence on the issue). How they personally felt is irrelevant; they knew people believed differently and that there is no freedom of religion or conscience if people were forced to believe that their rights were from any religion. No red herring changes that, but you are more than welcome to challenge it.

[seapuppy]

I don't come across definitive "Founders" all that often; usually its abuse is done by those with an agenda. Typically there are some limitations like "some" or even "most".

Strange, I pulled my first year American history textbooks as a college freashmen off the shelf just to check, and find "framers" and "founders" used collectively with great frequency. In fact, if you google the term correctly to American history, there are litterally thousands of entries without the benifit of "some" or "most".

Obviously.

We agree again.

---none of which you have yet to address---

Oh come on IC You constantlly use this, "you havn't addressed my points." 'bit' all to frequently. Anyone reading my post find that I have answered your assertions...point by point! It's a childish argumentative tool that bears no relation to my post.

because of that "non-fundamentalist" agenda of yours. I don't really care which ones believed what and how; they may think Creator was Jesus; there is nothing gained by grinding your ax whenever you have a chance to connect rights to religion.

Nothing, except the proper knowlege of Western history and philosophy. I, like you, dislike sloppiness in people's arguments. or their 'suppossed' historic basis for them.

Especially when so many, too many, think that rights come from the Constitution itself.

Well, what more can be said about the state of general American education. No "Founder" used collectively here, thought rights CAME from our Constituion. They ALL, collectively as founders, viewed the Constituion as the framework of a limited government, infringing as little as possible on our natural rights. The point in it's entirety.

If Aristotle did that it is because he got it from Plato. There's evidence of that in the Republic. However, Maimonides and Averroes, Jewish and Muslim respectively, both attempted to do so for their religions. Aquinas pulled it off with his Christian spin. Deists spun it again, although a bit in the different direction. None of this is overly relevant.

It's all EXTREMELY relevent. It is the BASIS of Aristotle's assumptions of "natural rights" and "natural law" The same assumptions held by the "Founders"...Ooops, many of the Founders.

Religion has nothing to do with our rights; that's the point of neutrality.
The Founders did it---and I can say that collectively because of their consensus on the Declaration of Independence (and its use of 'Creator' and 'nature's God') and the US Constitution (and its silence on the issue). How they personally felt is irrelevant; they knew people believed differently and that there is no freedom of religion or conscience if people were forced to believe that their rights were from any religion. No red herring changes that, but you are more than welcome to challenge it.

I don't need to. The evidence of the "founders", (..there I go again...), beliefs in both the diviness of the origin of rights, (Decleration of Independence), and the importance of moral and religious life, (First Amendment, North-West ordinances, etc.), to a free people engaged in self-governance is overwhelming. I keep posting it. It is taught in even the most basic courses on American history.

Wiki:

"Religion, morality, and knowledge" were enunciated as being "necessary to good government and the happiness of mankind, schools and the means of education".

This is from the Northwest Ordinances, which even Wiki, and any good history of our country, deems...

"Arguably the single most important piece of legislation passed by the Continental Congress other than the Declaration of Independence, it established the precedent by which the United States would expand westward across North America."

[Toriko]

Philosophy has moved far from Aristotle. Natural law and natural rights may originate in Ancient Greece, but it isn't stuck there. I don't understand why you are.

Regarding the Northwest Ordinance, as expected, you pull out a red herring. That has nothing to do with the origin of rights, just the opinion of the Continental Congress as for what makes good government and society and prefaced Manifest Destiny.

The Founders agreed, beyond the various sects of Christianity, or beyond Deism, atheism, or agnosticism, that the rights preexist government and are rooted through natural law. That was the extent.

[seapuppy]

Philosophy has moved far from Aristotle. Natural law and natural rights may originate in Ancient Greece, but it isn't stuck there. I don't understand why you are.

Right now, as I type, thousands of students in Phd philosophy programs are on their second pot of joe, untangling Socrates, Plato and Aristotle...

Regarding the Northwest Ordinance, as expected, you pull out a red herring. That has nothing to do with the origin of rights, just the opinion of the Continental Congress as for what makes good government and society and prefaced Manifest Destiny.

As usual...I never said it did. I said it was indicative of the ...Eee Gads..Founders belief in the importance of religion and morality in a people in relation to self-government and the understanding of natural rights..

The Founders agreed, beyond the various sects of Christianity, or beyond Deism, atheism, or agnosticism, that the rights preexist government and are rooted through natural law. That was the extent.

Yes, a "Natural Law" derived from our Creator, with "Natural Rights" endowed to us BY our Creator, as the founding document of our independence asserts. It's right in that there Decleration of Independence. It's self-evident in their writings, their commentary, their knowlege of the Aristillian, Thomastic, Enlightenment understanding of the origin of "Natural Law" and "Natural Rights".

[Kulindahr]

Since a well regulated militia is no longer necessary for the security of the state, as it was in 1776, the second amendment is antiquated and irrelevant.

Predictable -- you leave out the most important word, which makes sense, since you don't believe in it; you are utterly oblivious to the realities of life outside a crystal palace; you --

why not be honest? Dude, you haven't the lsightest idea what the Second Amendment was about, or you would be looking at Washington and pondering if this is the time it was meant for. Far from no loner being needed, I can't think of a time in the history of this country when it was needed more.
Or do you love George Bush that much????

[Kulindahr]

Why do people insist upon ignoring the "well regulated" part of that quote? Is it (possibly) because they realize that means the end to all those nut-jobs running around with machine guns and other ultra-high caiber weapons claiming they are for some sort of "sport?"

1. The amendment has nothing to do with "sport" of any kind.

2. "Well-regulated" has nothing to do with regulating the use of firearms, in any sense whatsoever.

What's possible is that you are trying to cram what you would like the words to mean into them rather than asking what they do mean. For the record, "well-regulated" means properly organized and trained, not by any "authority" except themselves and the officers they choose.
That you can call people dedicated to knowing hot to use, having available to use, and practicing with real militarily useful weapons "nut-jobs" shows just how far you are from understanding what the Founding Fathers, the Constitution, or freedom are all about.
I posted reading list for iman, to get him started on having sufficient background to actually engage in discussion on the topic of liberty and rights; find it, because you apparently have a need for it as well.

[Toriko]

Right now, as I type, thousands of students in Phd philosophy programs are on their second pot of joe, untangling Socrates, Plato and Aristotle...

Well, just Plato and Aristotle. That doesn't really say much, as there are many working with the myriad of philosophers over the last few millenia.

As usual...I never said it did. I said it was indicative of the ...Eee Gads..Founders belief in the importance of religion and morality in a people in relation to self-government and the understanding of natural rights..

Hence the red herring.

Yes, a "Natural Law" derived from our Creator, with "Natural Rights" endowed to us BY our Creator, as the founding document of our independence asserts. It's right in that there Decleration of Independence. It's self-evident in their writings, their commentary, their knowlege of the Aristillian, Thomastic, Enlightenment understanding of the origin of "Natural Law" and "Natural Rights".

You overplay what they mean by "Creator" and of God in natural law/natural rights. Oddly enough, I forgot exactly what it was I was going to say because of the article quoted below, which I'm hoping you find interesting considering its source (The Christian Statesmen):

What we have seen from the Founding Fathers' view of natural law is that while they might have acknowledged God's hand in the presence of natural law in the creation, they were overly optimistic concerning its universal discernability. Thus, when placing before the world the "common sense" of the subject, God was mentioned long enough to provide a source for the natural law and then dismissed. (Footnote: In fact, Thomas Jefferson's earlier draft of the Declaration had even less reference to God than the final version.)

While the Declaration is couched in Locke's language, the concepts are Aristotelian and Stoic as mediated through Aquinas and Richard Hooker. Therefore, even though the document is therefore conservative in its foundation for natural rights, it reflects the general utilitarian use of religion: to provide a natural source of virtue to stabilize the new republic.

Thus, to the Founding Fathers, sectarian disputes involving what were seen as purely theological and ecclesiastical accretions built upon a foundation of natural theology and law were to be avoided as that which interfered with the natural utility of religion. Therefore, far from asserting the demands of Christ's Law-Word, the Founding Fathers found all they needed in Aristotle and Cicero, interpreted through Aquinas, Hooker, and Sidney. If one is intent, like modern evangelicals, to return to the Founding Fathers for guidance, like soothsayers poring over the entrails of a dead animal, one has only to look around to see where it has led. Let us not worship history. Let us learn from it and move on.

Source: http://www.natreformassn.org/statesm...oundrview.html

The same guy also wrote a contrast between conservatism and libertarianism that you might find interesting, Kulindahr: http://www.natreformassn.org/statesman/96/lcc.html

[seapuppy]

Well, just Plato and Aristotle. That doesn't really say much, as there are many working with the myriad of philosophers over the last few millenia.

Maybe, but they wouldn't be worth their salt without the knowlege of the founders of Western thought. What have you got against Socrates?

Hence the red herring.

How? No diversion. You made the statement that "religion has nothing to do with our rights; that's the point of neutrality." I said that I agreed, secterian religion did not, but the founders felt religion SO important that they included it as a bulkwork to the maintanence of free government and individual rights, that it was specifically cited in our founding documents as necessary.

You overplay what they mean by "Creator" and of God in natural law/natural rights.

That statement is purely subjective opinion on your part. How do I "overplay" it? By mentioning it? By pointing out the fundemental basis for the Western tradition in "natural law"? By pointing out it's obvious roots in the enlightenment thinking of the ..."Founders"?

Your articles are interesting, but not scholarly. Strange you chose a pretty christian fundementalist site. I'm not one of them, but it is interesting.

How bout' just taking a middle of the road scholarly text? This is from Thomson/Gale Legal encyclopedia. Any Law student has read it or similar.

In the Declaration of Independence, Thomas Jefferson, borrowing from Locke, wrote that "all men are created equal … and are endowed by their creator with certain inalienable rights … [including] life, liberty and the pursuit of happiness." Jefferson identified the freedom of thought as one of the inalienable rights when he said, "Almighty God has created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint." In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253, the Supreme Court recognized the IMPORTANCE OF DIVINE INFLUENCE IN EARLY U.S. LAW., stating that the "right to pursue happiness is placed by the Declaration of Independence among the inalienable rights of man, not by the grace of emperors or kings, or by the force of legislative or constitutional enactments, but by the Creator."

Apparently Jefferson and SCOTUS likes to "overplay" as well...

[ComNavFdgPk]

...I posted reading list for iman, to get him started on having sufficient background to actually engage in discussion on the topic of liberty and rights; find it, because you apparently have a need for it as well.

As a twenty-year veteran of the US Navy, I certainly don't need you to lecture me on liberty or rights. I'm just waiting for someone to offer a realistic explanation why a hunter (or anyone else, for that matter) has need of a weapon that fires .50 caliber rounds at a rate of 25 rounds/second!

[pjlikesporn]

Regulate within reason yes. Your at fault in assuming that the "many of the amendments have been extended, but not the Second."

1. ALL of the Amendments are held by every single Ameircan citizen. This is guarenteed by the 9th, but most importantly, by the 14th Amendment to the Constitution. (slavery anyone?). It prohibits States from infringing on the rights of individual citizens as guarenteed in the Bill of Rights. Reasonable regulation has always been permited, (i.e., no atom bombs or grenade launchers, etc.).

The arguments here have become somewhat disjointed and difficult to follow. However, I assume that you now realize that my statement was, in fact, correct. The Fourteenth Amendment does not prohibit state governments from regulating guns. The Second Amendment does not apply to the states.

Your broad statement that every American citizen may claim protection under the Bill of Rights is indeed true but it does nothing to refute my own statement. That is so because the crucial question still remains: "All of the Amendments are held by every single American citizen," but against whom. When it comes to guns, all American citizens have the right against the federal government--but not against local governments.

Also, because I think it might be worth reading, I have posted the first clause (of five) of the Fourteenth Amendment. If there is one thing that constitutional scholars agree on when discussing this provision, it is that the exact provisions of the Bill of Rights to be applied to the states ("incorporation) are far from clear.

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

Believe it or not, it is those seventeen words which incorporate the Bill of Rights against the states. It's definitely unclear--especially since those words are already contained Fifth Amendment. (If those words mean one thing in the Fifth Amendment, how can they refer to the entire Bill of Rights when used in the Fourteenth Amendment?) That said, SCOTUS has never recognized that the Second Amendment was to be incorporated against the states.

[Toriko]

Seapuppy:

Socrates didn't actually write anything, that's all I meant by that.

It was found so far in one document, not necessarily a founding document, but one important to the future direction of this country---both in regards to westward expansion and abolition.

Overplaying is your insistence to go back to roots or fundamental bases---I guess that is the conservative in you---and drawing much on that phrase. The point was not that rights came from "God almighty"---since they would not have agreed who or what 'god' is--- but they all agreed on just that rights pre-existed government; I'm not repeating that again. If you want then we'll just leave it that he, and by extension they, meant the rather deistic god of Aristotle.

SCOTUS, in that case, was only building off of the New York State of Appeals who had cited the Declaration of Independence. Interesting read, however, that one finds the use of the Declaration of Independence in a case about butter.

[seapuppy]

The arguments here have become somewhat disjointed and difficult to follow. However, I assume that you now realize that my statement was, in fact, correct. [B]The Fourteenth Amendment does not prohibit state governments from regulating guns.

I've forgotten your origional statement, but I hope I never implied that either the states OR the Federal Government didn't have the right to regulate firearms. They have always had the right to regulate firearms, as long as that regulation has not been found in courts to constitute an unreasonable infringment on the individuals rights to keep and bear. Local standards are also part of that. The City of New York may require stringent standards for the private possession of handguns, (the city police MAY issue an individual a handgun license, but seldom do.). Other states have few restrictions.

The Second Amendment does not apply to the states.

Here your wrong. The second amendment applies every bit as much to the states as the first does. It IS applied due to the equal protection clause of the 14th, as well as the 9th amendment. It doesn't have much case history, and has not been ruled on directly as a whole, but it clearly is applicable to state governments. Proof of this is in the case history. Presser v. Illinios was the most clear and is still upheld...

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government"

Your broad statement that every American citizen may claim protection under the Bill of Rights is indeed true but it does nothing to refute my own statement. That is so because the crucial question still remains: "All of the Amendments are held by every single American citizen," but against whom. When it comes to guns, all American citizens have the right against the federal government--but not against local governments.

Here is your confusion. No amendment is "held" by the people. The amednments are restrictions of government power, not mine. The equal protection clause of the 14th amendment prohibits any state from using state soveriegnty under federalism from infringing on the rights of the people contrary to the Bill of Rights.

Believe it or not, it is those seventeen words which incorporate the Bill of Rights against the states. It's definitely unclear--especially since those words are already contained Fifth Amendment. (If those words mean one thing in the Fifth Amendment, how can they refer to the entire Bill of Rights when used in the Fourteenth Amendment?)

It is actually the 9th amendment which legal scholars equate with the duplicate efforts of the 14th, but your point taken...it better be clear, because that is the amendment that virtually all civil rights and privacy rullings in subsequent years has been based on.

That said, SCOTUS has never recognized that the Second Amendment was to be incorporated against the states.

This was floated in another post and is really not true. "Incorperated" referes to the degree that case law has been decided on a particular issue as far as I can tell. The Presser v. Illinios rulling clearly refutes the idea that the SCOTUS has not ruled on the issue. Further in U.S. v. Verdugo-Urquidez SCOTUS ruled on the definition of applicability of the second amendment stating that it was not intended for "state militia" gun rights, but applied to the 'People' as a whole as all the other amendments of the Bill of Rights did.

[pjlikesporn]

Here is your confusion. No amendment is "held" by the people. The amednments are restrictions of government power, not mine.

1. ALL of the Amendments are held by every single Ameircan citizen.

Your words--and boldface--not mine.

[seapuppy]

LoL...you got me there....hung by my own keyboard.


You know what I mean. Even I get to talking about the "Bill of Rights" as if they are a bill of rights. Of course they are a bill of restricitons on government power, not the peoples. My free speech came from no legislature or dead man's pen, but my Creator.

The point of many of the post of this thread AND the real meaning of the Second Amendment.

Now stop reading my post as if I know what I'm talking about.

[pjlikesporn]

Here your wrong. The second amendment applies every bit as much to the states as the first does. It IS applied due to the equal protection clause of the 14th, as well as the 9th amendment. It doesn't have much case history, and has not been ruled on directly as a whole, but it clearly is applicable to state governments. Proof of this is in the case history. Presser v. Illinios was the most clear and is still upheld...

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government"

Your quote from Presser v. Illinois is extremely misleading as it leaves out the one remaining sentence in the paragraph which also happens to negatge completely the meaning of what you have posted.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

The paragraph above this one also succintly states the holding of the case:

The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government. . . .

Now, onto a less stirring issue, but certainly an interesting history and vocabulary topic.

"Incorperated" referes to the degree that case law has been decided on a particular issue as far as I can tell.

When the first ten Amendments to the Constitution were ratified, they were meant to apply only to the national government. After the Civil War, the Fourteenth Amendment was ratified which contained language of "due process" similar to that of the Fifth Amendment but to be applied against the state governments. When it came time for justices to interpret the Fourteenth Amendment, a question naturally arose: exactly what process is due? Some argued that the words meant only what they meant in the Fifth Amendment. Others argued that "due process" in this context meant the entire Bill of Rights was to be held against the states--i.e., "Complete/Perfect Incorporation". The view that won out, however, was known as "Selective Incorporation." The Court would decide which amendments of the first ten were to be applicable against the states. Incorporation refers to the decision of which government limitations originally applicable to only the national government should also be applicable against the states. The degree to which case law on a particular issue has been decided is a far more vague concept. Perhaps "well-settled" would be the correct term, but it is not "incorporation."

And so, for the third time, the Second Amendment applies to the federal government only and has never been held to apply as against the states.

[pjlikesporn]

Now stop reading my post as if I know what I'm talking about.

Well, of course, I wrote the entire diatribe above (post #44) while you were getting all self-depricating.

[seapuppy]

Your quote from Presser v. Illinois is extremely misleading as it leaves out the one remaining sentence in the paragraph which also happens to negatge completely the meaning of what you have posted.

I wasn't trying to be missleading, that is just the cunundrum we are in in trying to sort out court rulings regarding the Second Amendment that vex greater legal minds than ours. Keep in mind, you stated "negated completely the meaning of what you have posted.", but what I posted were the EXACT words of SCOTUS. Confussing? Of course. Here is Presser again, along with other Court rulings...

In 1942 the US Supreme Court declared:

"a state cannot impose license, tax or fee on a Constitutionally protected right."
Murdock vs Pennsylvania 319US 105 (1942) For those who rely on law and common sense the possession of a firearm is clearly "a Constitutionally protected right."

In 1886 Presser vs. Illinois 116US 252 the US Supreme Court declared that the right to keep and bear arms exist for

"all citizens capable of bearing arms and the state could not infringe upon this right."

In 1803 Chief Justice John Marshall declared:

"all laws repugnant to the Constitution are null and void."
Marbury vs. Madison 5US 137 (1803) Only 16 years after the Ratification of the Constitution Chief Justice Marshall ruled all laws that violate the Constitution are illegal.

Help or muddy? The fact is, some of the best legal minds in the country couldn't tell you.

When the first ten Amendments to the Constitution were ratified, they were meant to apply only to the national government. After the Civil War, the Fourteenth Amendment was ratified which contained language of "due process" similar to that of the Fifth Amendment but to be applied against the state governments. When it came time for justices to interpret the Fourteenth Amendment, a question naturally arose: exactly what process is due? Some argued that the words meant only what they meant in the Fifth Amendment. Others argued that "due process" in this context meant the entire Bill of Rights was to be held against the states--i.e., "Complete/Perfect Incorporation". The view that won out, however, was known as "Selective Incorporation." The Court would decide which amendments of the first ten were to be applicable against the states. Incorporation refers to the decision of which government limitations originally applicable to only the national government should also be applicable against the states. The degree to which case law on a particular issue has been decided is a far more vague concept. Perhaps "well-settled" would be the correct term, but it is not "incorporation."

My critisism here, is that you blew through the entire 14th Amendment without touching on it's most powerful and most quoted clause...yes the due process clause, which you identified with the 5th amendment IS important, but it is the Equal Protection Clause, associated with the 9th, which gave the 14th such weight in civil rights/individual rights matters and forever changed constituional interpretations.

The heart of the matter is that it specifically bars the states from enacting any laws which would abridge individuals from their rights as enumerated in the Bill of Rights and Constituion. Or as wiki puts it...

Before the enactment of the Fourteenth Amendment, the Constitution protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state governments.

As I stated earlier, no case concerning the second amendment before the SCOTUS has ever resulted in the courts saying that states can't regulate firearms. No NRA member should have a problem with that. States can decide handgun issues, barrel lengths, licensing requirements, etc, just as the Federal governmetn can, and not violate the second amendment. The question you possed to me is, in effect, can the states cancel and nulify your second amendment rights? That has yet to be seen. There has been no diffinitive court ruling on that, but I would highly doubt it.

So in the end, I can't provide a clear cut legal answer, because there is none. I can say with confidence that the day any state decides to nullify the second amendment within it's borders, it will spell the end of classical American ideals that put the individual above the state and made him it's master and will reverse it, letting the stench of Europe once again hold sway over us and reducing the individual to be, once again, the states servant.

...my powder is dry and my musket is still ready for action, when good men in those states issue the call...

[Kulindahr]

As a twenty-year veteran of the US Navy, I certainly don't need you to lecture me on liberty or rights. I'm just waiting for someone to offer a realistic explanation why a hunter (or anyone else, for that matter) has need of a weapon that fires .50 caliber rounds at a rate of 25 rounds/second!

I know plenty of people who have been in the Navy, and other armed forces, who are clueless about freedom and rights both. As an example, there are lots who don't think anyone should own a firearm except the military or police.

Why would someone need such a weapon? Why, for the same reason a person in the military might -- to have firepower to balance that of a foe. In the terms of the Second Amendment, that foe might well be the (dubiously constitutional) standing armed forces of the central government.
And please note that SCOTUS has stated that the Second is intended to permit all "the people" access to military weaponry!

[opinterph]

Why do people insist upon ignoring the "well regulated" part of that quote? Is it (possibly) because they realize that means the end to all those nut-jobs running around with machine guns and other ultra-high caliber weapons claiming they are for some sort of "sport?"

How regulated is too-well regulated?

The Transportation Security Administration announced that passengers on all U.S. flights, domestic and international, would be banned from transporting any type of liquid or gel in their carry-on luggage. The ban applies to all types of beverages, shampoo, toothpaste, hair gels and other items of a similar consistency, the TSA announced.

Is it not true that one man’s ultra-high caliber weapon is another man’s toiletries?

On September 13, 1994, domestic gun manufacturers were required to stop production of semi-automatic assault weapons and ammunition clips holding more than 10 rounds except for military or police use. Imports of assault weapons not already banned by administrative action under Presidents Reagan and George H.W. Bush were also halted. Assault weapons and ammunition clips holding more than 10 rounds produced prior to September 13, 1994, were "grandfathered" in under the law and can still be possessed and sold.

The bill bans, by name, the manufacture of 19 different weapons:

Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);
Action Arms Israeli Military Industries UZI and Galil;
Beretta Ar70 (SC-70);
Colt AR-15;
Fabrique National FN/FAL, FN/LAR, and FNC;
SWD M-10; M-11; M-11/9, and M-12;
Steyr AUG;
INTRATEC TEC-9, TEC-DC9, AND TEC-22;
revolving cylinder shotguns such as (or similar to) the Street Sweeper and Striker 12.

The bill also bans "copies" or "duplicates" of any of those weapons.

The 1994 law also prohibits manufacturers from producing firearms with more than one of the following assault weapon features:

Rifles

Folding/telescoping stock
Protruding pistol grip
Bayonet mount
Threaded muzzle or flash suppressor
Grenade launcher

Pistols

Magazine outside grip
Threaded muzzle
Barrel shroud
Unloaded weight of 50 ounces or more
Semi-automatic version of a fully automatic weapon

Shotguns

Folding/telescoping stock
Protruding pistol grip
Detachable magazine capacity
Fixed magazine capacity greater than 5 rounds

So anyways, this 1994 law has since expired. It is once again OK to manufacture rifles with bayonet mount AND grenade launcher, et al. Nonetheless, I doubt the federal government will permit you to “carry that protection into town.” There is obviously some well-regulated “regulation” going on nowadays. I guess a fundamental question is the extent to which that regulation is legit.

[Kulindahr]

If you read the text of the amendment, and stick within the grammar, none of the existing regulation of firearms is legit -- none at all. That's what "infringed" means -- the government isn't allowed to even intrude on peripheral matters (and they've gone far beyond that).