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  1. #1
    auribus teneo lupum Stardreamer's Avatar
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    What exactly is the right protected by the 2nd Amendment

    I know there are already several gun control threads running but this didn't quite fit any to any of them. Since the 2nd Amendment is central to any discussion of gun rights and control in the US and since many of our non-US members (and quite a few of the US ones) don't really understand the amendment and the right it represents I thought a narrow discussion thread of just what is would be useful. The finding summary of the Supreme Court in the District of Columbia vs Heller is the most revealing on this:

    Held:
    1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

    (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

    (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

    (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.

    (d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

    (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

    (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

    2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

    3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
    The bolded text was added by me to emphasis the points that are often in contention in these debates and shouldn't be. Any discussion on regulating and limiting guns in the US has to either meet the conditions spelled out here unless there is a constitutional amendment passed changing this. This also points out why all the debate on militias and their relevance in modern times is really a distraction. The issue is the right for lawful citizens to self defense and how we can regulate that right while reducing the abuse of it.
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

  2. #2
    auribus teneo lupum Stardreamer's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    We already covered the militia argument that so distracts from the issue. But to focus closer on the other issue that so often distracts, the argument that the amendment would allow someone to own a nuke or chemical weapons or other weapons of mass destruction. This argument is addressed in United States vs Miller which was the ruling that determined that a sawed off shotgun was not protected because it was not a 'militia' weapon. This discussion of it in paragraph 2 is a much better description. The right covers weapons that are "in common use" that have legitimate lawful uses such as home defense, target shooting, hunting, etc. It does not extend to weapons that have no such purpose and legitimate need.
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

  3. #3
    Fritz-the-Cat
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    Re: What exactly is the right protected by the 2nd Amendment


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    auribus teneo lupum Stardreamer's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    ^ a more colorful but pretty much accurate summation of the militia issue.
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

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    Rambunctiously Pugnacious JayHawk's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    I agree. Therefore an assault weapons ban is perfectly legal and so is limiting the amount of rounds held in one magazine.
    Everyone can be great, because everyone can serve.
    ~ Martin Luther King, Jr.


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    auribus teneo lupum Stardreamer's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    I agree. Therefore an assault weapons ban is perfectly legal and so is limiting the amount of rounds held in one magazine.
    That is debatable as most of what they call assault weapons are not operationally any different or more powerful than many other long rifles. The question is do they have any legitimate lawful uses. I do agree that magazine limit can easily be upheld and is from my viewpoint the only thing that really makes the assault weapons more dangerous than other long rifles. I'm not really an expert on the workings of firearms though so if you can make an argument that assault rifles other than the magazine issue is more dangerous and has no legitimate use than other rifles used for hunting and target shooting....
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

  7. #7

    Re: What exactly is the right protected by the 2nd Amendment

    The Second Amendment was put in place to protect against tyranny in govenment. It has nothing to do with hunting.

    Assualt is an act not an object. The term was coined many years ago by the anti gun crowd to make certain weapons seem deadlier. All functional firearms can kill, but every deer rifle in the country is more powerful than the .223 cartridge. Can you imagine anyone saying he drove an assault car ? Should we ban cars because they are often used in crime?
    The FBI estimates there are 200 million privately owned guns in this country, 99.999 percent of them harmed absoutely no one on December 14, 2012. The emphasis needs to be on mental health, the shooter was known to have mental health issues from a very early age. Violent video games and his mother teaching him to shoot, though she was aware of his problems all contributed to this terrible event. MHO

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    Rambunctiously Pugnacious JayHawk's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Stardreamer View Post
    That is debatable as most of what they call assault weapons are not operationally any different or more powerful than many other long rifles. The question is do they have any legitimate lawful uses. I do agree that magazine limit can easily be upheld and is from my viewpoint the only thing that really makes the assault weapons more dangerous than other long rifles. I'm not really an expert on the workings of firearms though so if you can make an argument that assault rifles other than the magazine issue is more dangerous and has no legitimate use than other rifles used for hunting and target shooting....


    Quote Originally Posted by kevin23 View Post
    The Second Amendment was put in place to protect against tyranny in govenment. It has nothing to do with hunting.

    Assualt is an act not an object. The term was coined many years ago by the anti gun crowd to make certain weapons seem deadlier. All functional firearms can kill, but every deer rifle in the country is more powerful than the .223 cartridge. Can you imagine anyone saying he drove an assault car ? Should we ban cars because they are often used in crime?
    The FBI estimates there are 200 million privately owned guns in this country, 99.999 percent of them harmed absoutely no one on December 14, 2012. The emphasis needs to be on mental health, the shooter was known to have mental health issues from a very early age. Violent video games and his mother teaching him to shoot, though she was aware of his problems all contributed to this terrible event. MHO
    Hmm perhaps if we regulated and enforced the safety aspects that people like the NRA used to advocate. I don't imagine the weapons would have killed there owner and then a school room full of children had they been locked up.

    We can argue semantics all day. And you are correct if you shot me with a 303 I would be no more or less dead than if you shot me with a 223... however I implore you to tell me how it is possible for you to bolt action reload quick enough to kill 26 people while zix adults are rushing you? I also wonder why a deer needs to be shot 30 times? If a person cant get the shot in one go they need time at the range not more bullets.

    We have all already agreed mental health is in many ways just as much to blame. I think it is much more than that but it takes capability and intent. If you hamper capability then you reduce incidence.

    All of this lies squarely at the feet of the republican party. The party of no health care for all, the party of no reasonable regulation of deadly weapons, the party of NO. The second amendment guarantees the right to bear arms. It does not guarantee the right to bear anything man creates and calls a gun.

    I think Alito was correct then when he said the constitution was a "dead, dead, dead document" and it referred to the arms at the time because they knew of no other. SO we should allow free and legal ownership of any ball and musket guns. as many as you would like.
    Everyone can be great, because everyone can serve.
    ~ Martin Luther King, Jr.


  9. #9
    auribus teneo lupum Stardreamer's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    Hmm perhaps if we regulated and enforced the safety aspects that people like the NRA used to advocate. I don't imagine the weapons would have killed there owner and then a school room full of children had they been locked up.

    We can argue semantics all day. And you are correct if you shot me with a 303 I would be no more or less dead than if you shot me with a 223... however I implore you to tell me how it is possible for you to bolt action reload quick enough to kill 26 people while zix adults are rushing you? I also wonder why a deer needs to be shot 30 times? If a person cant get the shot in one go they need time at the range not more bullets.

    We have all already agreed mental health is in many ways just as much to blame. I think it is much more than that but it takes capability and intent. If you hamper capability then you reduce incidence.

    All of this lies squarely at the feet of the republican party. The party of no health care for all, the party of no reasonable regulation of deadly weapons, the party of NO. The second amendment guarantees the right to bear arms. It does not guarantee the right to bear anything man creates and calls a gun.

    I think Alito was correct then when he said the constitution was a "dead, dead, dead document" and it referred to the arms at the time because they knew of no other. SO we should allow free and legal ownership of any ball and musket guns. as many as you would like.
    Mental health is being covered in the other threads this one is focused exclusively on the right(s) enumerated in the 2nd Amendment.

    The Court covered the musket argument in the Miller and Heller decisions and disregarded it. The right applies to applicable weapons in 'current' common use that can be use for self defense. Powder muskets are no longer the common use weaponry, they wouldn't actually be protected according the courts interpretation. Nor could you justify the argument since most citizens nowadays could not effectively use a black powder musket for self defense purposes.

    Should also be noted the Heller case addressed specifically that the government can not enforce gun locks in the home since it would hinder self defense.
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

  10. #10
    JockBoy87
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    Re: What exactly is the right protected by the 2nd Amendment

    The second amendment's first clause is expository, not operative, so I agree with the court's reasoning. The court also wisely set reasonable limits. Citizens cannot arms themselves with WMDs for instance.

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    Re: What exactly is the right protected by the 2nd Amendment

    Penn and Teller are wrong on one major point, because "the people" are the same as "a militia" -- they're the general or common militia, just not a formal one.

    And the militia aspect is important, because looking at the whole militia concept of the time tells us what was meant. The Court is being a little devious with the Miller wording of "common use at the time", because what that phrase would have meant to the Founding Fathers is common military use -- which back then also happened to be the same as used for hunting. Understanding "militia" tells us right off that the whole canard about nukes or tanks is bogus, because those fall into the class that were not common among the members of the militia; they were not the arms the common soldier carried. So all the idiots who think they should be able to load up on RPGs are 'way beyond the protection of the Second.

    The meaning of the word "militia" also eliminates right off the bozos running around with their own weapons collections and calling themselves militias: an organized citizen militia was by definition subject to the local authorities, which the Founding Fathers considered to mean the governor of the specific state. Any group claiming to be a militia which has not registered itself and its officers with the state governor, thereby accepting that he/she can call them up at need, is not a militia but is what at the time was called a private army -- and a private army was immediately suspect, being looked on like the private forces of such entities as powerful nobles and great corporations. To top it off, officers had to meet qualifications set by the civil authority (and by US law that means Congress).

    Further, not everyone was part of the militia. Violent felons were excluded because they had by actions shown themselves to be enemies of the free state, rather than contributors to its security. The mentally deficient were excluded as not dependable in terms of the needed discipline and clear-headedness.

    So applying definition by the negative, we know two things the Second does not mean: weapons not commonly carried by a common soldier, and private armies. And we know one it does mean: violent criminals and the "mentally deficient" are excluded because they do not meet the definition of members of the militia (any more than someone missing an eye).


    The main clause tells what it does mean: "the right of the people to keep and bear arms shall not be infringed". The meaning of "the people" is obvious, because that's the same group that has all those other rights protected by the other amendments: individuals. It is individuals who keep and bear the sort of arms under question (which serves from another angle to rule out tanks and howitzers). So it's clear who is meant.

    That leaves the questions of what arms were meant. Again from the term "militia", the answer is plain: the best military arms for a common soldier of the day.


    It can be argued that the Founders never conceived of the sort of weapons we have. On that point there may be maneuvering room by applying the matter of non-individual and non-ordinary weapons. While under the amendment individuals are allowed the best common individual military weapons of the day, the question may be asked if today's military weapons can be considered common for ordinary bearing -- after all, the military of the time had primitive grenades and other weapons which could be used by ordinary soldiers, but which, when held by a local militia, were kept in the militia armory rather than carried about by the militia members in everyday life. Common sense dictated that no one needed such weapons in ordinary circumstances (and common sense hasn't changed): they were too destructive and not of "common" use (the uses of the word "common" in discussion of the Second can get confusing -- there are three meanings I can think of).

    So we can legitimately ask what weapons today would be kept in the armory and not handed out to be carried around. The armory would be under the authority and care of the officers, and without them no weapons from it would be available. The answer is "whatever weapons are considered too destructive to allow people to just have when they feel like it".

    Of course that's vague. Obviously we've decided as a nation that "machine guns" fall in this category, although it was panic rather than a reasoned application of the Second Amendment that got us there. Now the question is asked whether weapons with large magazines should be considered too destructive. I can't but think that the answer is "yes", but then one has to ask how large a magazine is too large.

    As I noted elsewhere, I'd have loved to have had a 60-round magazine for dealing with prairie dogs. Most (if not all) missed the point: if that's the only reason for wanting large magazines, it's rather preposterous to argue that people ought to be allowed to own them just because they feel like it -- arguing for a large magazine on the basis that someone could use it nicely against prairie dogs is inane.

    But even with vermin, there's not much need for a magazine larger than -- I'll be generous -- twenty. Even with the prairie dogs twenty would be sufficient; the wish for sixty is really just excessive (it's not common to find a prairie dog home with enough to justify sixty)(and besides, home-made mustard gas is more effective). So let's call the limit twenty, and look at what that would mean.

    Under the amendment, militias can own the "extraordinary" (as opposed to "common") weapons -- but individuals may not "bear" them. So Congress has no authority to say people can't own them; what it does have is the authority to say that no individual can bear them about. Under the militia concept, those would have to be stored at the militia's armory, under lock, available only by release from the officers. So I should be able to buy (were I feeling silly enough) a 100-round magazine -- but I wouldn't be allowed to walk out of a store with it; it would have to be delivered to my militia's armory, where it would be noted as mine but not allowed to me.

    Yet there's one exception there: if my militia maintained a practice range, I could use it there. Common sense dictates that the practice range be attached to the armory, in a way that precludes me from taking my magazine anywhere but on those premises: I would go to the armory, sign out my ridiculous magazine, practice with it there, sign it back in, and only with my signature dry and the magazine back in its locker would I have the exit opened for me.


    So if we really study the terms of the Second Amendment, the compromise we're looking for is already there: no new restrictions on the arms people can own, but restrictions on what can be had available at home or in public. Common weapons would be allowed out and about; extraordinary weapons would have to be under lock and key, under the authority of properly elected officers meeting qualifications established by Congress and registered with the governor of the state. Responsibility would be extended thereby: with the officers accepting the authority over 'my' militia, they also accept responsibility for the absence and/or misuse of any of the weapons in the militia's arsenal.

    Under that scheme the automatic weapons ban could even be lifted -- because they'd never get outside the walls of the armory and practice range. I know some of my fellow NRA members who hold one of the privileged licenses to have a fully automatic firearm would scream, but given the policies they've allowed Wayne LaPierre and his cronies to pursue, I have little sympathy -- and besides, I have the Second on my side.


    So the answer we need is already in the Constitution, in the meaning of the Second Amendment. Many like to point out it's an individual right and then scream against any sort of restriction, but there are already restrictions built in, in the whole concept of "militia".



    I've neglected that pesky word "infringed for the moment.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Bammer's Papa
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Stardreamer View Post
    Should also be noted the Heller case addressed specifically that the government can not enforce gun locks in the home since it would hinder self defense.
    That was an excellent decision: I know of three cases where children ended up dead because of "gun control" laws. In each case, the law was about storing guns, which made them not immediately available to someone who could have defended the home.

    I suspect that biometric rules would similarly fall, because they would restrict the weapon from being used for defense by any member of the household, being restricted to just one.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Bammer's Papa
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JockBoy87 View Post
    The second amendment's first clause is expository, not operative, so I agree with the court's reasoning. The court also wisely set reasonable limits. Citizens cannot arms themselves with WMDs for instance.
    And that limitation is already built in to the amendment. "Militia" is not, as lawyers tried to argue sometimes, restrictive as to whom, but it is restrictive as to what.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Rambunctiously Pugnacious JayHawk's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Stardreamer View Post
    Mental health is being covered in the other threads this one is focused exclusively on the right(s) enumerated in the 2nd Amendment.

    The Court covered the musket argument in the Miller and Heller decisions and disregarded it. The right applies to applicable weapons in 'current' common use that can be use for self defense. Powder muskets are no longer the common use weaponry, they wouldn't actually be protected according the courts interpretation. Nor could you justify the argument since most citizens nowadays could not effectively use a black powder musket for self defense purposes.

    Should also be noted the Heller case addressed specifically that the government can not enforce gun locks in the home since it would hinder self defense.
    Just adds to the argument but that is fine if you prefer a myopic approach to interpreting the law via a constitutional amendment that you prefer to have no limits.

    In Dred Scott V Sanford we determined slaves were property. How did that work out? Supreme Court rulings are not impervious to a change in the mindset of mankind. Neither is the constitution.
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    ~ Martin Luther King, Jr.


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    Virtus in medio stat JUB Admin opinterph's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Kulindahr View Post
    So the answer we need is already in the Constitution, in the meaning of the Second Amendment. Many like to point out it's an individual right and then scream against any sort of restriction, but there are already restrictions built in, in the whole concept of "militia".



    I've neglected that pesky word "infringed for the moment.
    I am left wondering if our contemporary militia is properly – umm, “well-regulated.”

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    Rambunctiously Pugnacious JayHawk's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by opinterph View Post
    I am left wondering if our contemporary militia is properly – umm, “well-regulated.”
    Very apt. It would appear quite the opposite.
    Everyone can be great, because everyone can serve.
    ~ Martin Luther King, Jr.


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    auribus teneo lupum Stardreamer's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    Just adds to the argument but that is fine if you prefer a myopic approach to interpreting the law via a constitutional amendment that you prefer to have no limits.

    In Dred Scott V Sanford we determined slaves were property. How did that work out? Supreme Court rulings are not impervious to a change in the mindset of mankind. Neither is the constitution.
    No right is unlimited and the court specifically says that in the text I quoted and highlighted. The question is what are the reasonable restrictions to that right.

    The purpose of this thread is to look at and discuss the right addressed in the Second Amendment, it is an on topic thread, the secondary but related issue of mental health is being discussed in other threads and doesn't relate directly to this one. The Second Amendment is the 800 pound gorilla sitting in the living room of this issue, it is important that we understand it if we are to discuss the issue of how to regulate guns and gun violence in our society.

    And yes the justices are only human and sometimes make mistakes, there is a process to changing both the opinion of the court and the constitution. Both processes are intentionally very slow and difficult to do for good reason. Changing the court's interpretation or passing a constitutional amendment are both long term solutions that are not going to address the immediate issues.
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

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    auribus teneo lupum Stardreamer's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by opinterph View Post
    I am left wondering if our contemporary militia is properly – umm, “well-regulated.”
    It depends on what you think the militia is, for the most part no it isn't. The law depends on the state and local governments to appoint militia officers to 'regulate' the militia but that practice is long since fallen into disuse since most of the everyday functions of the state militias have been incorporated into the National Guards.
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

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    Rambunctiously Pugnacious JayHawk's Avatar
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Stardreamer View Post
    No right is unlimited and the court specifically says that in the text I quoted and highlighted. The question is what are the reasonable restrictions to that right.

    The purpose of this thread is to look at and discuss the right addressed in the Second Amendment, it is an on topic thread, the secondary but related issue of mental health is being discussed in other threads and doesn't relate directly to this one. The Second Amendment is the 800 pound gorilla sitting in the living room of this issue, it is important that we understand it if we are to discuss the issue of how to regulate guns and gun violence in our society.

    And yes the justices are only human and sometimes make mistakes, there is a process to changing both the opinion of the court and the constitution. Both processes are intentionally very slow and difficult to do for good reason. Changing the court's interpretation or passing a constitutional amendment are both long term solutions that are not going to address the immediate issues.
    If guns aren't the issue according to pugs then how is the second amendment the 800 pound gorilla?
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Stardreamer View Post
    It depends on what you think the militia is, for the most part no it isn't. The law depends on the state and local governments to appoint militia officers to 'regulate' the militia but that practice is long since fallen into disuse since most of the everyday functions of the state militias have been incorporated into the National Guards.
    Ahhh you are almost there... the militias are the National Guard units... but don't let that stop the tortured logic. It the Constitution and its amendments are to be enforced then ALL of their constraints should as well. Such as ensuring if you own a weapon you are well organized.

    All we need for proper modern change on the courts is for one or even better two of the 1800th century republicans to get themselves dead and then Obama can appoint people who live in this century to find the laws agreeable with the constitution.

    Nothing about the process is slow if people do not desire for it to be slow either. Remember Gore v Bush?
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    Re: What exactly is the right protected by the 2nd Amendment

    Interesting that the US had a functioning constitution before the second amendment…gives a person hope for the future.
    Americans need to keep their guns so they can protect themselves from gun violence just like Nancy Lanza did. And like Chris Kyle did. And like Gabby Giffords did. And like Tom Clements did. And like Michael Piemonte. And Joseph Wilcox.

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by opinterph View Post
    I am left wondering if our contemporary militia is properly – umm, “well-regulated.”
    I'd say that on the whole it's doing about as well as the ones Washington had to work with. IIRC it was a Delaware contingent of which he said that since they came with no conception of being well-regulated, once he took them in hand they did better than many others. I took that as a comment that it's easier to train someone with no habits to have good ones than to undo the bad habits of others.

    But the Amendment doesn't specify that the militia should be at all times well-regulated (Alexander Hamilton smacked that suggestion down rather hard and cynically), it merely specifies that the militia, i.e. the people, should be allowed the weapons they would need to be called up as a militia. Making the militia well-regulated was left to Congress, and to the states.

    And that's where I think the current situation can be addressed: Congress has the authority over the militia to deal with the question of "excessively destructive" weapons not by attacking the Second, but by working within it, through defining what weapons are in "common use" and which belong in a militia armory.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Stardreamer View Post
    It depends on what you think the militia is, for the most part no it isn't. The law depends on the state and local governments to appoint militia officers to 'regulate' the militia but that practice is long since fallen into disuse since most of the everyday functions of the state militias have been incorporated into the National Guards.
    That was actually a concern raised by some when the National Guard was formed. And that formation was due to concerns about the preparedness (well-regulatedness) of the general militia. The National Guard is actually a subset of the militia -- and when called up by the Pentagon ceases to be militia because they are then professional soldiers.


    BTW, mental health is a concern with the Second Amendment only as I described earlier: those deemed "mentally deficient" are excluded from the militia.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    If guns aren't the issue according to pugs then how is the second amendment the 800 pound gorilla?
    Because liberals are making a head-on attack against the Amendment, which prompts stubborn opposition to the whole attempt for some any action.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    Ahhh you are almost there... the militias are the National Guard units... but don't let that stop the tortured logic. It the Constitution and its amendments are to be enforced then ALL of their constraints should as well. Such as ensuring if you own a weapon you are well organized.

    All we need for proper modern change on the courts is for one or even better two of the 1800th century republicans to get themselves dead and then Obama can appoint people who live in this century to find the laws agreeable with the constitution.

    Nothing about the process is slow if people do not desire for it to be slow either. Remember Gore v Bush?
    False. The Militia Act of 1903 set up the National Guard as a formal subset of the militia. The National Guard is militia, but it is not the whole of it. According to both the Founding Fathers and the US Code, the militia is all male citizens capable of bearing weapons, between the ages of 16 and 60 (I keep wondering when they're going to add women, since they can now serve in the professional army).

    And there is no requirement to be "well regulated" in order to own a weapon -- the reverse is the truth; the Amendment requires that people have weapons as a first step toward being well-regulated.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Right but like has been the rights tactic for longer than I can remember they simply refuse to engage in a conversation and thereby kill any chance of meeting in the middle. This goes back to republican ideology of my way or the highway legislation. It certainly does not work that way.
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by bankside View Post
    Interesting that the US had a functioning constitution before the second amendment…gives a person hope for the future.
    Only technically. The Constitution was passed only with the promise of the Second Amendment. In fact during that brief time, it wasn't at all certain that that particular amendment wasn't going to require everyone to be armed.

    Amusingly, one reason that version didn't make it was the concern that it would end up requiring the federal government to spend funds it wasn't authorized to, and that people were worried about taking that big a step toward a powerful central government.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    Right but like has been the rights tactic for longer than I can remember they simply refuse to engage in a conversation and thereby kill any chance of meeting in the middle. This goes back to republican ideology of my way or the highway legislation. It certainly does not work that way.
    The way to do this would be to hold a conference of scholars who understand the original intent -- exclude any who just want to trash the Amendment, or can't even get through their heads who the militia is -- and pose the question:

    Within the parameters of the Second Amendment, how can large-scale magazines such as those used in recent mass shootings be restricted, and (second) how can those not fit to be "well-regulated" be prohibited from obtaining or owning weapons before any of them become mass murderers?

    The result should hopefully be a new Militia Act, building on the last one. The rational could be to make certain that the formal militia (National Guard) would be able to confidently call up members of the general militia (the people) in time of need, or at the least to make sure that deficiencies in the militia be addressed before the formal militia or professional army might need to call them up.

    And on the mental health part, that's a no-brainer: the meaning of "militia" excludes the "mentally deficient".

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Kulindahr View Post
    False. The Militia Act of 1903 set up the National Guard as a formal subset of the militia. The National Guard is militia, but it is not the whole of it. According to both the Founding Fathers and the US Code, the militia is all male citizens capable of bearing weapons, between the ages of 16 and 60 (I keep wondering when they're going to add women, since they can now serve in the professional army).

    And there is no requirement to be "well regulated" in order to own a weapon -- the reverse is the truth; the Amendment requires that people have weapons as a first step toward being well-regulated.
    You tell me I am saying a falsehood and then contradict yourself... interesting debate tactic.
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    Re: What exactly is the right protected by the 2nd Amendment

    The framers of the Constitution could not have been more clear about what right they were establishing with the 2nd Amendment.

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
    The 2nd Amendment is a right to bear arms for the purpose of serving in a well-regulated (i.e., not vigilante) militia. If the intention had been merely to establish a right to bear arms outside of the context of a militia, there would have been no mention of militias in the text. It would simply grant a right to bear arms. Period.

    I am well aware the the Supreme Court has chosen to alter the meaning of the 2nd Amendment with its rulings. But, they are obviously wrong about that.

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Kulindahr View Post
    The way to do this would be to hold a conference of scholars who understand the original intent -- exclude any who just want to trash the Amendment, or can't even get through their heads who the militia is -- and pose the question:

    Within the parameters of the Second Amendment, how can large-scale magazines such as those used in recent mass shootings be restricted, and (second) how can those not fit to be "well-regulated" be prohibited from obtaining or owning weapons before any of them become mass murderers?

    The result should hopefully be a new Militia Act, building on the last one. The rational could be to make certain that the formal militia (National Guard) would be able to confidently call up members of the general militia (the people) in time of need, or at the least to make sure that deficiencies in the militia be addressed before the formal militia or professional army might need to call them up.

    And on the mental health part, that's a no-brainer: the meaning of "militia" excludes the "mentally deficient".
    The problem with that is the list of scholars understanding the original intent is subjective. i am sure i would find someone acceptable that you would call a constitutional heretic.
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by T-Rexx View Post
    The framers of the Constitution could not have been more clear about what right they were establishing with the 2nd Amendment.



    The 2nd Amendment is a right to bear arms for the purpose of serving in a well-regulated (i.e., not vigilante) militia. If the intention had been merely to establish a right to bear arms outside of the context of a militia, there would have been no mention of militias in the text. It would simply grant a right to bear arms. Period.

    I am well aware the the Supreme Court has chosen to alter the meaning of the 2nd Amendment with its rulings. But, they are obviously wrong about that.
    This is a key observation. WHY would they even involve such text? They didn't say "A third leg of government meant only to validate whether laws are constitutional, The Judicial power of the United States, ...." That was the interpretation of Marshall and became the precedent for court decisions.

    What purpose would it serve? To define the right to bear arms unlike any other right under specific circumstances?
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    The problem with that is the list of scholars understanding the original intent is subjective. i am sure i would find someone acceptable that you would call a constitutional heretic.
    This is always the problem, the free guns for everyone set does not recognize that their position is an OPINION.
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by T-Rexx View Post
    The framers of the Constitution could not have been more clear about what right they were establishing with the 2nd Amendment.



    The 2nd Amendment is a right to bear arms for the purpose of serving in a well-regulated (i.e., not vigilante) militia. If the intention had been merely to establish a right to bear arms outside of the context of a militia, there would have been no mention of militias in the text. It would simply grant a right to bear arms. Period.

    I am well aware the the Supreme Court has chosen to alter the meaning of the 2nd Amendment with its rulings. But, they are obviously wrong about that.
    The meaning is clear, and you miss it by mutilating the grammar. You have to first ask what "militia" means in that use, and it's plain: "the whole people", as more than one FF said.

    It is "for the purpose of serving in a well-regulated militia", but it does that by protecting the "right of the people" -- not the privilege granted by a government, but the right the people already have. All the purpose does is give one reason for protecting that right; it does not claim even to be the only reason.

    Other versions of the amendment listed other reasons. This version was settled on because it gave what everyone agreed to be the most important reason. It is not a limiting clause, but one that supplies an example of why this protection is being given.

    In Heller the Supreme Court very carefully upheld a piece of the amendment's meaning, and they got it right -- all one has to do is read the literature of the time of writing to know that.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Kuli is right - all of this hinges on definition of Militia, and since there is no definition in the Constitution, all we have is opinions on what they intended that to mean.

    I do not think all guns should be banned, I do think that there is a compelling national interest in regulating what can be purchased buy whom.

    No minors or crazy people obviously, but what about the careless and negligent? Should they be allowed to purchase assault rifles? The criminal? Those undergoing extreme emotional duress? All of those categories are responsible for a lot of gun deaths of one kind or another.

    But we can't regulate them. The only sensible step is to regulate the type of weaponry available for purchase and who can buy it (which we already do) WHILE SIMULTANEOUSLY working on the social issues. Both sides need to be addressed.
    ATTACK OF THE LIBERAL ELITE

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    This is a key observation. WHY would they even involve such text? They didn't say "A third leg of government meant only to validate whether laws are constitutional, The Judicial power of the United States, ...." That was the interpretation of Marshall and became the precedent for court decisions.

    What purpose would it serve? To define the right to bear arms unlike any other right under specific circumstances?
    It doesn't define it, it gives a reason. It's a good thing the justices who gave us Heller bothered to understand the grammar of the time, so they understood that the militia clause is not a limiting clause. And they reduced it to that one reason, excluding explicit mention of self-defense and posses and such because this was the most important reason to protect this inherent right.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by TX-Beau View Post
    This is always the problem, the free guns for everyone set does not recognize that their position is an OPINION.
    One position isn't opinion, because it was set out by the debate itself. Both federalist and anti-federalist agreed that the militia was "the whole of the people", "the people themselves", "every man", etc. It's plain the right belongs to every individual, and to all (except to those disqualified by being not fit of body or mind).

    Of course the actual "free guns for everyone set" doesn't acknowledge any limitation arising from the concept of "militia" any more than the "taking away guns is a solution" set recognize that there are elements of the meaning that are actually on their side. And both sides seem to overlook that Article I, Section 8, provides Congress the authority "To provide for organizing, arming, and disciplining, the militia..."

    The solution here resides within the Second Amendment and its concept of militia, and Article I. The authority granted there to Congress is derived from the concept of militia itself, but are enumerated for clarity. The Second Amendment was never understood by the Framers or FFs to contradict Art I Sec 8, so any exercise of that authority is legitimate. Any reform here has to be founded on what the constitution means -- and that can be done.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    We should just repeal the Second Amendment.

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by TX-Beau View Post
    Kuli is right - all of this hinges on definition of Militia, and since there is no definition in the Constitution, all we have is opinions on what they intended that to mean.
    It's not really up to opinion; there's a substantial body of material from the time discussing and/or setting out what "militia" meant in its various levels (I waded through over a thousand pages on the topic a few years back). There's the "common" or "unorganized" militia, which is every able=bodied and able-minded person. This is referred to by "a militia" in the first clause. Then there's "organized" militia, which is when members of the common militia get together, choose officers, train, and work at being "well-regulated". Here we see that "a militia" can also refer to a specific group of people, as opposed to the militia at large, when they become organized. Then there's "formal militia", which covers both such a citizens-organized and -funded group and one organized and funded by a state -- we have the latter in the National Guard; they had them where some townships or cities in the Revolutionary War called and funded their own formal militias.

    Quote Originally Posted by TX-Beau View Post
    I do not think all guns should be banned, I do think that there is a compelling national interest in regulating what can be purchased buy whom.

    No minors or crazy people obviously, but what about the careless and negligent? Should they be allowed to purchase assault rifles? The criminal? Those undergoing extreme emotional duress? All of those categories are responsible for a lot of gun deaths of one kind or another.
    Much can be done by working within the meaning of the Amendment, by addressing the militia issue. I'll add, though, that throwing around contentless terms like "assault weapon" is the opposite of helpful, while pointing out that to own an assault rifle in the US requires a federal license, and there is a set number that can grow smaller but not larger under present law -- so to obtain an assault rifle you have to find a current owner willing to part with his.

    Quote Originally Posted by TX-Beau View Post
    But we can't regulate them. The only sensible step is to regulate the type of weaponry available for purchase and who can buy it (which we already do) WHILE SIMULTANEOUSLY working on the social issues. Both sides need to be addressed.
    I think we can regulate them -- assuming you mean people. We just can't do it by imposing barriers to the exercise of the right; SCOTUS has dissed that multiple times. What we can do is require responsible public entities to report people they have observed as being dangerous to the NICS so their names are flagged, and they can't get a gun until cleared. That's not invasive; it's based on public observation (which in other matters the Court has ruled as legitimate for obtaining information).

    And we can build a real and humane mental health support system. In fact we do a disservice to all mentally ill people by letting then be potential risks such as these few have become -- and to all potential victims.
    Last edited by Kulindahr; December 18th, 2012 at 03:13 PM.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Kulindahr View Post
    It doesn't define it, it gives a reason. It's a good thing the justices who gave us Heller bothered to understand the grammar of the time, so they understood that the militia clause is not a limiting clause. And they reduced it to that one reason, excluding explicit mention of self-defense and posses and such because this was the most important reason to protect this inherent right.
    Why perchance for that one singular situation did they decide we needed illumination. If they wanted everyone to carry they could have easily said so with no required explanation.
    Everyone can be great, because everyone can serve.
    ~ Martin Luther King, Jr.


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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by palemale View Post
    We should just repeal the Second Amendment.
    With three-quarters of the public favoring it and agreeing with it that the right is an individual one?

    Take your dreams back to your pipe.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    Why perchance for that one singular situation did they decide we needed illumination. If they wanted everyone to carry they could have easily said so with no required explanation.
    I already pointed out one reason they didn't go with the "shall keep and bear arms", namely the expense and the extension of federal power. They also chose not to because if the government wasn't going to spend the money for arms for all, they would be imposing a burden on those "not of such means". There was a suggestion to drop the clause, but a large party wanted the militia covered in the Bill of Rights, so rather than multiply amendments, they used the clause as we have it. Another argument was that it would contradict the First, because some religions opposed the carrying of arms.

    The fundamental reason they put in "illumination" was that the opening move of the Revolution was an attempt by King George to impose gun control by depriving the militia of its rightful arms.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: What exactly is the right protected by the 2nd Amendment

    Pardon me if i don't accept your explanation. Have you some sort of cite that is not a progun rights propaganda machine that can attribute all of these 'ideas'. Adams kept an exhaustive note on the entire conference. I am sure if they deliberated about so many issues that notes would be in Adams records that congress purchased in the 1800's.
    Everyone can be great, because everyone can serve.
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by palemale View Post
    We should just repeal the Second Amendment.
    Yaaay! Ding ding ding! Takes for ever to get to this…

    And don't worry about public opinion; it takes someone to make the argument before opinions will shift, and the public has held plenty of wrong ideas before. Think slavery, segregation, anti-gay attitudes, etc.

    The question really should be asked, if this constitutional provision is designed to ensure security of the citizenry, is it really doing the job better than any other option? It is quite possible the answer is "No." In which case it should be replaced by a better amendment.

    If three quarters of the population are mistaken, that means it only takes each person who can see a better way to convince one other to change his vote, and suddenly it is 50/50. And with so few people making the case for a better amendment, it is no wonder people can't see past the current version.
    Last edited by bankside; December 18th, 2012 at 03:31 PM.
    Americans need to keep their guns so they can protect themselves from gun violence just like Nancy Lanza did. And like Chris Kyle did. And like Gabby Giffords did. And like Tom Clements did. And like Michael Piemonte. And Joseph Wilcox.

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by Kulindahr View Post
    You have to first ask what "militia" means in that use, and it's plain: "the whole people", as more than one FF said.
    I am quite aware of the definition of "militia," and certainly so were the framers of the constitution. You are trying to say they meant something other than "militia" when they said "militia." I think they meant "militia."

    In fact, the term is even repeated in Amendment V, in which context it clearly refers to military service. I'm not sure how they could have been more clear about this.

    Militia Mi*li"tia, n. [L., military service, soldiery, fr.
    miles, militis, soldier: cf. F. milice.]
    [1913 Webster]
    1. In the widest sense, the whole military force of a nation,
    including both those engaged in military service as a
    business, and those competent and available for such
    service; specifically, the body of citizens enrolled for
    military instruction and discipline, but not subject to be
    called into actual service except in emergencies.
    [1913 Webster]

    The king's captains and soldiers fight his battles,
    and yet . . . the power of the militia is he. --Jer.
    Taylor.
    [1913 Webster]

    2. Military service; warfare. [Obs.] --Baxter.
    [1913 Webster]

    Quote Originally Posted by Kulindahr View Post
    It is "for the purpose of serving in a well-regulated militia", but it does that by protecting the "right of the people" -- not the privilege granted by a government, but the right the people already have. All the purpose does is give one reason for protecting that right; it does not claim even to be the only reason.

    Other versions of the amendment listed other reasons. This version was settled on because it gave what everyone agreed to be the most important reason. It is not a limiting clause, but one that supplies an example of why this protection is being given.
    Nonsense. There is no other example within the Bill of Rights of a "reason" being specified as to why that right is necessary.

    Not one. Not anywhere. That would be rather unprofessional writing in a document of law. Rights are spelled out as rights. Not "This right is granted because..."

    In fact, the framers of the Constitution were careful not only to specify that the right to bear arms was being granted for service in a militia, but they further specified that such militia must be "well regulated" (non-vigilante) to dispel the notion that it was okay for people to own guns for any purpose whatsoever.

    I'm not sure how they could have been more clear as to what meaning they were trying to convey. I know that we have many people today (including some justices on the Supreme Court) who are certain that the framers meant to say that citizens have a right to chase down people they perceive as threatening and shoot them. But, people seem to have an ability to read into documents whatever meaning they would prefer it specified.

  46. #46

    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by palemale View Post
    We should just repeal the Second Amendment.
    Why stop there? Repeal them all!!!! Anarchy rules!!!!!

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by JayHawk View Post
    Ahhh you are almost there... the militias are the National Guard units... but don't let that stop the tortured logic. It the Constitution and its amendments are to be enforced then ALL of their constraints should as well. Such as ensuring if you own a weapon you are well organized.

    All we need for proper modern change on the courts is for one or even better two of the 1800th century republicans to get themselves dead and then Obama can appoint people who live in this century to find the laws agreeable with the constitution.

    Nothing about the process is slow if people do not desire for it to be slow either. Remember Gore v Bush?
    Gore v Bush wasn't addressing a constitutional right
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

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    Impish and Mercurial Rolyo85's Avatar
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    Quote Originally Posted by T-Rexx View Post
    In fact, the framers of the Constitution were careful not only to specify that the right to bear arms was being granted for service in a militia, but they further specified that such militia must be "well regulated" (non-vigilante) to dispel the notion that it was okay for people to own guns for any purpose whatsoever.

    I'm not sure how they could have been more clear as to what meaning they were trying to convey. I know that we have many people today (including some justices on the Supreme Court) who are certain that the framers meant to say that citizens have a right to chase down people they perceive as threatening and shoot them. But, people seem to have an ability to read into documents whatever meaning they would prefer it specified.
    This. It pains me to see logical people doing somersaults of logic to excuse their obsession with guns.
    That we are capable only of being what we are, remains our unforgivable sin.
    - Gene Wolfe

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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by T-Rexx View Post
    Nonsense. There is no other example within the Bill of Rights of a "reason" being specified as to why that right is necessary.

    Not one. Not anywhere. That would be rather unprofessional writing in a document of law. Rights are spelled out as rights. Not "This right is granted because..."

    In fact, the framers of the Constitution were careful not only to specify that the right to bear arms was being granted for service in a militia, but they further specified that such militia must be "well regulated" (non-vigilante) to dispel the notion that it was okay for people to own guns for any purpose whatsoever.
    I'm not sure it's nonsense.

    Here is an example of unambiguous legal text, just for fun from the Canadian Charter of Rights and Freedoms:
    2. Everyone has the following fundamental freedoms:
    (a) freedom of conscience and religion;
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    (c) freedom of peaceful assembly; and
    (d) freedom of association.
    It's quite specific, and the fact that things are listed matters. The fact that only those things are listed also matters.

    And here you see another seemingly specific list:

    15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
    However, equality is not limited to the specified groups, nor was it intended to be. The groups are simply listed for reference, but it does not weaken the intent or effectiveness of this well-written legal clause to provide more general protections for people who would fall into categories not listed. Like the gays, for instance.

    Well-written legal texts (well; let's say "carefully written") can include particulars which are not intended to limit the generality of the clause. I think Kulindahr should at least be permitted to make the case, even if I'm not yet convinced.

    Oh, and legal documents continually include prefatory or explanatory remarks; its just wrong to believe that every word is intended to be justiciable.
    Last edited by bankside; December 18th, 2012 at 06:44 PM.
    Americans need to keep their guns so they can protect themselves from gun violence just like Nancy Lanza did. And like Chris Kyle did. And like Gabby Giffords did. And like Tom Clements did. And like Michael Piemonte. And Joseph Wilcox.

  50. #50
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    Re: What exactly is the right protected by the 2nd Amendment

    Quote Originally Posted by T-Rexx View Post
    I am quite aware of the definition of "militia," and certainly so were the framers of the constitution. You are trying to say they meant something other than "militia" when they said "militia." I think they meant "militia."

    In fact, the term is even repeated in Amendment V, in which context it clearly refers to military service. I'm not sure how they could have been more clear about this.






    Nonsense. There is no other example within the Bill of Rights of a "reason" being specified as to why that right is necessary.

    Not one. Not anywhere. That would be rather unprofessional writing in a document of law. Rights are spelled out as rights. Not "This right is granted because..."

    In fact, the framers of the Constitution were careful not only to specify that the right to bear arms was being granted for service in a militia, but they further specified that such militia must be "well regulated" (non-vigilante) to dispel the notion that it was okay for people to own guns for any purpose whatsoever.

    I'm not sure how they could have been more clear as to what meaning they were trying to convey. I know that we have many people today (including some justices on the Supreme Court) who are certain that the framers meant to say that citizens have a right to chase down people they perceive as threatening and shoot them. But, people seem to have an ability to read into documents whatever meaning they would prefer it specified.
    Websters definition has no meaning in US law. The Congress has the authority to define membership in militia and does so in the US Code:

    (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.
    10 USC section 311 Militia: composition and classes
    Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule - and both commonly succeed, and are right. H. L. Mencken US editor (1880 - 1956)

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