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How to explain the second amendment
- Thread starter Red_Eagle
- Start date
RaySendero
New member
brickeyee
RaySendero
The original Bill of Rights (10) were adopted as a single unit in 1791. They are a collection of mutually reinforcing guarantees of an individual US citizen's rights and of limitations on the federal, state and local governments.
No, it ONLY LIMITED the federal government until the 14th amendment was passed extending the protections against the states.
The 14th was then eviscerated by the SCOTUS defining down what "the privileges or immunities of citizens of the United States" consisted of.
.....
And most recently, 2A has been incorporated against the state and local governments in the MacDonald v. Chicago and 9th Circuit Court ruling. This ruling has already reverberated through many of our local governments and their police agencies, causing many to stop some of their activities that infringe on our 2A.
WE need to be unified on this issue, rather than trying to show our individual knowledge. We shouldn't act like lawyers. Don't be your own worst enemy - Stand together for your inalienable rights.
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WE need to be unified on this issue, rather than trying to show our individual knowledge.
It would help if folks studied and learned before opening their mouths.
It is not that hard or complicated.
RaySendero
New member
brickeyee
With all respect:
If we do not claim the 2A as our inalienable right now, We could very easily lose it entirely in the legal twists and turns that will surely come following the above ruling.
With all respect:
If we do not claim the 2A as our inalienable right now, We could very easily lose it entirely in the legal twists and turns that will surely come following the above ruling.
Hugh Damright
New member
Lets try "State" as "State of being". As "The Status of Being Free".
To construe the Second Amendment's term "free State" to mean "an individual in the status of being free" seems like a radical libertarian construction to me. Here's are a couple pertinent political definitions from Webster's 1828 Dictionary:
FREE - (2)In government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people.
STATE - (5)A political body, or body politic; the whole body of people united under one government, whatever may be the form of the government.
It appears to me that the intent was to secure free government at the state level, to ensure that that the final authority or sovereign in Virginia is Virginians.
If some people hadn't turned against the US Constitution, the others would have had no reason or justification for secession.People have fought and died to keep the union--while others did the same to try to break it up.
Virginians fought for the free State that the Second Amendment was intended to secure.
I think ithe 39th Congress intended the 14th be mostly an antidiscriminatory measure, creating a federal power to strike down discriminatory laws, not a federal power to strike down any law that violates the federal view of "rights".what congress had intended, the extension of federal rights against the states in response to the ongoing mistreatment of the former slaves in the south.
Mark Warner and Jim Webb. States have equal representation in the Senate. I think California has 70 times as many people as Wyoming, but both States have two US Senators. I really can't get any traction on what you're saying. It's as if you're insisting that two = zero.Virginia does NOT have representation in DC.
What are we talking about ... a State recalling/impeaching a Senator? I am not familiar with that ... but we pick our Senators and if they don't perform to our satisfaction then I reckon we'd pick someone else next time.Think your entire state can hold a 'senator' accountable?
Yeah, and the way things are going I might live to see a popular vote. But it seems to me that the further we stray from the original intent, the more important it is that we understand the US Constitution.2A has been incorporated
Some of us think that federalizing everything is the problem, not the solution.If we do not claim the 2A as our inalienable right now, We could very easily lose it entirely in the legal twists and turns that will surely come following the above ruling.
CapeCodShooter
New member
"But the COTUS is a living document, and we need to interpret it according to the changing circumstances of modern society!
"Fine, but the process of interpretation requires fidelity to the text being interpreted."
Perfectly said. That's why we can own revolvers and pistols, not just flintlock muzzleloaders. But the devil is on the details. If semiautomatics are okay for private ownership, why not full automatics? Hand grenades? Nuclear tipped missiles? That's why we have courts, to decide the "finer" points of what the founders laid down over 200 years ago. And it ain't always easy.
I practiced law for thirty years (not auto accidents, but really obtuse stuff) and never had an "easy" case, meaning a case where the law and the facts were clear. But to me, Heller and McDonald were the closest things to being clear, and any other result would have been absurd.
Thank you, Justices Scalia and Alitto, and thank you Alan Gura.
"Fine, but the process of interpretation requires fidelity to the text being interpreted."
Perfectly said. That's why we can own revolvers and pistols, not just flintlock muzzleloaders. But the devil is on the details. If semiautomatics are okay for private ownership, why not full automatics? Hand grenades? Nuclear tipped missiles? That's why we have courts, to decide the "finer" points of what the founders laid down over 200 years ago. And it ain't always easy.
I practiced law for thirty years (not auto accidents, but really obtuse stuff) and never had an "easy" case, meaning a case where the law and the facts were clear. But to me, Heller and McDonald were the closest things to being clear, and any other result would have been absurd.
Thank you, Justices Scalia and Alitto, and thank you Alan Gura.
cannonfire
New member
Here is just some questions to throw out there for discussion.
1. What if by militia, the writers of the 2nd Amendment meant it as the "revolters" of a tyrannical government? Instead of an actual state organized militia, but rather just a group of civilians who are fighting the government due to oppression?
2. Let's say it is not about meant like that, but rather as a real deal militia, what stops us from creating our "own" militia? I'm am my own militia, or members of TFL are all ONE militia, etc. The 2nd doesn't mention that it has to be a state militia or even federally recognized.
1. What if by militia, the writers of the 2nd Amendment meant it as the "revolters" of a tyrannical government? Instead of an actual state organized militia, but rather just a group of civilians who are fighting the government due to oppression?
2. Let's say it is not about meant like that, but rather as a real deal militia, what stops us from creating our "own" militia? I'm am my own militia, or members of TFL are all ONE militia, etc. The 2nd doesn't mention that it has to be a state militia or even federally recognized.
Well, I'll give it a shot.
I think the contemporary idea of the militia were the armed citizens of the community. They periodically mustered for such limited drill that they had. They did in fact see action now and then, sometimes with the French and more often with the Indians. The well-regulated expression, I believe, was that the militia was subject to the government and at the time, that was no higher than the state (or colony) level. I am not sure if you would describe them as "state troops" (not to be confused with state troopers) or not, though there were such state troops. How good they were or how well trained or "efficient" they might have been is beside the point. But, generally speaking, that's the way it seemed to have actually worked. Some of their gear was probably getting on in years, but that's also beside the point.
There must have been some difficulty during the revolutionary war years when some of the colonists remained loyal, yet were still part of some militia. I think some of them formed what are termed loyalist units. Things went badly for people like that after the war until eventually it was forgotten.
It is well known that there was a bad taste for a regular army after the war and an attempt was made to do without one for a while. Apparently that didn't work out as well in practice as it did in theory but the militia concept remained in place. True, it eventually evolved into the national guard (in which I also served, as well as the regular army) but some state units were still called the militia (the state militia) until well after 1900. Personally, I think the national guard is overused for federal duties but that's a different issue altogether. I think the idea there was that there would have to be an overwhelming support for war (or deployment) before the guard would be used overseas and you could question how well that worked out compared to the theory.
So basically, I think the 2nd admendment does say that the militia is an arm of the government (but I presume it to be state government, perhaps even local). That the well regulated part. But that was also when the expression "a government of the people, by the people and for the people" was taken more literally. In any case, George Mason apparently had some fear of what amounted to private armies. I have no idea of what made him think like that unless it was the British experience in their own civil wars.
That does not exhaust what might be said on the subject.
I think the contemporary idea of the militia were the armed citizens of the community. They periodically mustered for such limited drill that they had. They did in fact see action now and then, sometimes with the French and more often with the Indians. The well-regulated expression, I believe, was that the militia was subject to the government and at the time, that was no higher than the state (or colony) level. I am not sure if you would describe them as "state troops" (not to be confused with state troopers) or not, though there were such state troops. How good they were or how well trained or "efficient" they might have been is beside the point. But, generally speaking, that's the way it seemed to have actually worked. Some of their gear was probably getting on in years, but that's also beside the point.
There must have been some difficulty during the revolutionary war years when some of the colonists remained loyal, yet were still part of some militia. I think some of them formed what are termed loyalist units. Things went badly for people like that after the war until eventually it was forgotten.
It is well known that there was a bad taste for a regular army after the war and an attempt was made to do without one for a while. Apparently that didn't work out as well in practice as it did in theory but the militia concept remained in place. True, it eventually evolved into the national guard (in which I also served, as well as the regular army) but some state units were still called the militia (the state militia) until well after 1900. Personally, I think the national guard is overused for federal duties but that's a different issue altogether. I think the idea there was that there would have to be an overwhelming support for war (or deployment) before the guard would be used overseas and you could question how well that worked out compared to the theory.
So basically, I think the 2nd admendment does say that the militia is an arm of the government (but I presume it to be state government, perhaps even local). That the well regulated part. But that was also when the expression "a government of the people, by the people and for the people" was taken more literally. In any case, George Mason apparently had some fear of what amounted to private armies. I have no idea of what made him think like that unless it was the British experience in their own civil wars.
That does not exhaust what might be said on the subject.
members of TFL are all ONE militia
We don't have to wear funny hats or go to meetings or anything, do we?
I don't see anything wrong with funny hats. Some of them are kind of neat, although I don't know of any that might be identified with the militia, other than three-corner hats or coonskin caps.
Do the officers have to come from the local gentry (if any), like they used to do? Can I bring my small sword and spontoon?
Do the officers have to come from the local gentry (if any), like they used to do? Can I bring my small sword and spontoon?
CapeCodShooter said:But the devil is on the details. If semiautomatics are okay for private ownership, why not full automatics? Hand grenades? Nuclear tipped missiles? That's why we have courts, to decide the "finer" points of what the founders laid down over 200 years ago. And it ain't always easy.
Indeed, some of the devils are in the details, but one of the devils we routinely encounter is an effort to put the details before the principle expressed in an effort to obscure the principle. If the conversation into which you are drawn revolves around nuclear missiles, it is generally for the purpose of demonstrating the lack of validity of the 2d amendment itself.
CapeCodShooter said:I practiced law for thirty years (not auto accidents, but really obtuse stuff) and never had an "easy" case, meaning a case where the law and the facts were clear.
I agree. The easy cases are quickly resolved because there is so little to contest, and there are certainly gun related issues with plenty of grey to them. Whether a portion of the COTUS is a valid limit on government shouldn't be one of those.
Al Norris said:The other amendments are just that, other amendments.
I would not concur in treating the 2d Am as a stand alone right. It certainly isn't the only portion of the COTUS the treatment of which has been a problem. However, I would employ the metaphor of a brick wall. Protections against establishment, takings, unreasonable search and seizure, abridgment of RTKB or speech are each specifically set forth, each their brick in the wall. Knocking out a brick here and there makes the remaining ones less effective.
For instance, undue limits on your right to speak freely or contribute to political causes that can speak for you can serve to endanger 2d Am rights.
I find that explaining the 2d Am as a civil liberties issue allows people who might otherwise be hostile to the idea to consider how comfortable they might be with draconian limits on the rights they value more. It doesn't necessarily win the argument or make a convert, but it does convey the fragile quality of constitutional protections.
You have hit upon a rarely mentioned quality of the law and the constitution and that is the essential fragility of them. A revolution can easily wipe out most of them, though even that won't surpress all of them, not even an invasion, judging from the way things have worked in the past. In the case of a revolution, it doesn't matter that much which side wins. In either case the government will invariably be stronger or more powerful than before. Likewise, most real revolutions and sometimes colonial wars are carried forward by preexisting military units, often as not the militia.
Be that as it may be, it speaks well for our own constitution that it has survived so long in such good shape and how it remains the base of much (though hardly all) of the law in this country. Perhaps the genius of the things is not what is there but in what was left out.
Be that as it may be, it speaks well for our own constitution that it has survived so long in such good shape and how it remains the base of much (though hardly all) of the law in this country. Perhaps the genius of the things is not what is there but in what was left out.
carguychris
New member
I've heard this argument before and I just don't think it's realistic. I don't buy the idea that the 2A was primarily meant as a "self destruct mechanism" by which the citizens or the states could overthrow a tyrannical federal government; if it was, it was only as a last resort.. What if by militia, the writers of the 2nd Amendment meant it as the "revolters" of a tyrannical government? Instead of an actual state organized militia, but rather just a group of civilians who are fighting the government due to oppression?
If the founders were so concerned that a new federal government might be necessary right away, a more effective and civilized means of accomplishing this would be a provision allowing the state legislatures to dissolve Congress and/or recall the President and force new elections. If Congress and/or the President ignored the order, THEN the state militias could be called out. However, such a provision is noticeably absent from the Constitution, which leads me to conclude that the founders believed that two elected houses of Congress would be sufficient restraint on the power of the federal government.
Also, prior to the drafting of the Constitution, IIRC all of the states had a militia system that operated under state control. The organizational structure of the militias varied, and some states- albeit not all of them- allowed private volunteer militia companies to be sanctioned by the state, but the important thing to remember is that the states officially controlled the militia.
I believe that in using the words "...the security of a free State..." in the 2A, the founders meant that the states would be secure from external forces, NOT from the federal government. In the 18th century, significant foreign powers- namely large organized Native American tribes, Britain, France, and Spain- still controlled huge swaths of North America near the settled areas of the USA. At the time, the states still viewed their militias as the primary bulwark against invasion by these groups. However, as the 19th century proceeded, all of these groups were either placated or expelled from America's sphere of influence, leading most citizens to view the 18th-century militia system as outdated and extraneous.
If we do not claim the 2A as our inalienable right now, We could very easily lose it entirely in the legal twists and turns that will surely come following the above ruling.
No argument there, and it has been so declared by SCOTUS at this point.
Though "inalienable right" is a term from the Declaration of Independence, and has no real legal force.
No the misconception is that the signers of the BOR would do so knowing that these inalienable rights of the people could be taken away by subordinate governments. .
More likely they never even considered such a thing could happen, but it surely did.
As written the Constitution limits the power of the Federal government and not the states.
What may have been discussed outside the Constitutional Convention has no import except when the words of the Constitution are in question.
While it declares "Powers of Congress," "Limits on Congress," & "Powers Prohibited of States" among other sections, it does not purport to apply the BoR to the states anywhere until the passage of the 14th amendment.
The notion of a private militia santioned by the state, while sounding a little farfetched today, was essentially the method by which army units were raised in the 18th century and that method persisted into the 19th century. That was really the way the British Army worked. Basically, the government paid the colonel an amount of money to raise a regiment and unfortunately, it was worked as a profit making scheme. It developed some bad habits and it's a wonder it worked at all.
Real militias (not regulars) came and went with the perceived threat to the nation, here speaking both of the US and of Great Britain but there was great enthusiasm for the concept in the 1840s and 1850s. Enthusiasm for the idea on the part of war departments was usually not so great, however, not because of any doubt about the loyalty of those units but because of doubt of their fighting value. That eventually was proved, however, and some of those old units are actually still in existence, or at least their descendents. In this country, some saw Confederate service but they're still around. A couple are quite exclusive and have rather pretentious social opinions of themselves, both here and in Great Britain and in both places they have been thoroughly integrated into the defense planning of the country.
Do you imagine anyone ever worried that the militia might be a threat to the state (not the national government)?
Real militias (not regulars) came and went with the perceived threat to the nation, here speaking both of the US and of Great Britain but there was great enthusiasm for the concept in the 1840s and 1850s. Enthusiasm for the idea on the part of war departments was usually not so great, however, not because of any doubt about the loyalty of those units but because of doubt of their fighting value. That eventually was proved, however, and some of those old units are actually still in existence, or at least their descendents. In this country, some saw Confederate service but they're still around. A couple are quite exclusive and have rather pretentious social opinions of themselves, both here and in Great Britain and in both places they have been thoroughly integrated into the defense planning of the country.
Do you imagine anyone ever worried that the militia might be a threat to the state (not the national government)?
NickySantoro
Moderator
How to explain the second amendment
The intention of the Second Amendment is to insure that the government does not have sole access to the means of coercive force. It's just that simple.
The intention of the Second Amendment is to insure that the government does not have sole access to the means of coercive force. It's just that simple.
Hugh Damright
New member
A free State is a State with free government. And free government means that the people are ruled only by laws which they consent to. I hardly see how the Second Amendment was intended to secure free government against foreign rule by not to secure it against federal rule. I think the point was to secure free government against any threat, whether foreign or domestic.I believe that in using the words "...the security of a free State..." in the 2A, the founders meant that the states would be secure from external forces, NOT from the federal government.
Hugh Damright
New member
I think it was understood that State governments could violate rights, and that is why the States had their own bills of rights. It's not as if the reason they wanted a USBOR to limit only the US government was because they thought the States could do no wrong. They wanted a USBOR to limit only the federal government because that is how contitutionalism works i.e. a constitution frames a government and a bill of rights limits THAT government. The US Constitution was framing a new government, and some wanted a BOR to limit it. They were concerned that the US Constitution was creating a government that was too powerful. The last thing they would have done is requested amendments to increases federal power beyond all measure by making the federal government the "protector of rights".More likely they never even considered such a thing [as States infringing on the RKBA] could happen