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Fri Jan 11, 2013, 12:02 AM

On the BOR, 2nd Amendment and Incorporation

My apology if this has already been addressed…

I’ve been hesitant to post this as I have been hoping that another poster with more community credentials (read: larger post count) would address this; however I have yet to run across it. As such, I think that there is an important aspect to the gun debate and other Bill of Rights questions that has to be acknowledged as it relates to “original intent” and “Founding Fathers” arguments.

I have observed many arguments that assert that the Second Amendment was placed in the Bill of Rights as a bulwark against a tyrannical or otherwise illegitimate government overreaching its constitutional authority. On the surface this seems like a semi-legitimate argument as questions of natural rights (in the Lockean sense) and the legitimacy of government authority were issues heavily debated in the run up to the Revolution. So, the argument goes, the Founding Fathers placed the Second Amendment in the Constitution to dissuade any excessive malfeasance on the part of government because it gave the people a means in which to resist said malfeasance. Unfortunately, Constitutional history does not support that assertion.

You see, the Bill of Rights was not extended to individuals in the several states until well after the Constitution’s ratification. As a matter of fact, it was the Fourteenth Amendment that eventually extended these rights, well most of these rights, down to the individual, and even then not until well after the fourteenth was adopted. This is known as the incorporation of the Bill of Rights. Previous to these Supreme Court decisions the Bill of Rights was viewed as a restriction on what the federal government could do and that the states could violate any or all of these with impunity. Therefore, the state in which you may live, previous to incorporation, could restrict any of the activities covered in the Bill of Rights and only state laws or constitutions could grant you protections. In other words, if the state deemed it proper they could tell you what you could say, take your property, make you go to church, confiscate your guns or any other thing we would all find as an affront to our modern sensibilities.(some of which they did)

Now, what does this mean in regard to these Second Amendment arguments we keep seeing? For one, if the original intent was one of strictly curbing federal activity then there is no way that you could construe it to mean that the individual was empowered by the amendment beyond limiting federal involvement. Hence the well regulated militia aspect of the Second is an empowerment of the several states, not individuals. In addition, there is little chance that the founders could have imagined that the amendment would be used as an argument for general, disorganized rebellion against a tyrannical government. Hell, even the Civil War was one of organized STATE militias.

All that said, all the opinions we have about what is and what is not constitutional is, at the bottom of the well, moot. The only opinions that matter are nine people in black robes.
There is much more here but as I am no Constitutional scholar I will leave any additions to those who may be more knowledgeable than I. Thoughtful responses may get a puppy!

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Arrow 80 replies Author Time Post
Reply On the BOR, 2nd Amendment and Incorporation (Original post)
Beearewhyain Jan 2013 OP
jmg257 Jan 2013 #1
Beearewhyain Jan 2013 #3
jmg257 Jan 2013 #11
2naSalit Jan 2013 #27
jmg257 Jan 2013 #33
former9thward Jan 2013 #64
pipoman Jan 2013 #2
Beearewhyain Jan 2013 #4
pipoman Jan 2013 #8
Beearewhyain Jan 2013 #13
pipoman Jan 2013 #19
jmg257 Jan 2013 #16
Beearewhyain Jan 2013 #18
jmg257 Jan 2013 #20
Beearewhyain Jan 2013 #28
jmg257 Jan 2013 #31
Glassunion Jan 2013 #5
pipoman Jan 2013 #10
ancianita Jan 2013 #14
Beearewhyain Jan 2013 #21
Glassunion Jan 2013 #22
Beearewhyain Jan 2013 #23
Glassunion Jan 2013 #24
Beearewhyain Jan 2013 #29
Glassunion Jan 2013 #30
Beearewhyain Jan 2013 #32
jmg257 Jan 2013 #15
Historic NY Jan 2013 #6
Beearewhyain Jan 2013 #9
cthulu2016 Jan 2013 #7
pipoman Jan 2013 #12
Beearewhyain Jan 2013 #17
pipoman Jan 2013 #25
Beearewhyain Jan 2013 #26
virginia mountainman Jan 2013 #34
AnotherMcIntosh Jan 2013 #35
pipoman Jan 2013 #38
xoom Jan 2013 #80
sl8 Jan 2013 #61
cthulu2016 Jan 2013 #65
jimmy the one Jan 2013 #36
jmg257 Jan 2013 #46
ancianita Jan 2013 #79
jimmy the one Jan 2013 #37
pipoman Jan 2013 #40
jimmy the one Jan 2013 #44
pipoman Jan 2013 #45
jimmy the one Jan 2013 #48
pipoman Jan 2013 #51
jimmy the one Jan 2013 #76
pipoman Jan 2013 #77
jmg257 Jan 2013 #59
jimmy the one Jan 2013 #39
pipoman Jan 2013 #41
jimmy the one Jan 2013 #43
pipoman Jan 2013 #47
jmg257 Jan 2013 #53
jimmy the one Jan 2013 #42
jmg257 Jan 2013 #49
jimmy the one Jan 2013 #52
jmg257 Jan 2013 #55
4Q2u2 Jan 2013 #56
jmg257 Jan 2013 #60
4Q2u2 Jan 2013 #62
jmg257 Jan 2013 #63
4Q2u2 Jan 2013 #67
jmg257 Jan 2013 #69
Romulox Jan 2013 #50
jimmy the one Jan 2013 #54
4Q2u2 Jan 2013 #57
Romulox Jan 2013 #58
jimmy the one Jan 2013 #66
jmg257 Jan 2013 #70
jmg257 Jan 2013 #71
jmg257 Jan 2013 #72
jimmy the one Jan 2013 #74
jmg257 Jan 2013 #75
jmg257 Jan 2013 #73
jimmy the one Jan 2013 #68
jimmy the one Jan 2013 #78

Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 12:20 AM

1. Knowing the very vital roles the State Militias served in securing the liberty

Of the new republic (execute the laws, suppress insurrections, repel invasions) when in in federal service, there is NO way the States could disarm the people/Militia any more then the federal govt. could. It would destroy the Militias, and do precisely what the 2nd was intended to secure against.

We formed a better Union exactly to establish justice, ensure tranquility and provide for the common defense...the very task of the Militias. They HAD to be well armed and well disciplined...our freedoms depended on it.

The president was CiC when the Militias were called forth. The Congress declared who must serve AND how they MUST arm themselves...it was NOT for the States to disarm them.

Edit: the purpose of the 2nd was not to allow people the ability to defend themselves against a usurper, it was to secure their right and duty to effectively serve in the Militias to reduce the need for that bane of liberty and martial power of tyrants, a large standing army. THAT is the primary protection against tyranny the 2nd offers.

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Response to jmg257 (Reply #1)

Fri Jan 11, 2013, 12:55 AM

3. I am unclear on most of your post

but to address your edit. Then the well regulated part and being a function of a organized, state sanctioned militia with the President as CiC is the necessity? Could you humor me with any documentation that supports that or that this was the intention?

And for full disclosure, I would be considered on the fence on this issue. While I do not own any firearms many of my friend do and I have been to ranges with them. However, at this point, I do not have a problem with reasonable gun control that would have the effect of addressing the problems associated with firearms. Compelling, reasonable argument on either side are welcome.

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Response to Beearewhyain (Reply #3)

Fri Jan 11, 2013, 01:19 AM

11. "A well regulated militia" is the necessity...

But WHAT well regulated militia?

THE Militia in Article 1 Section 8 of the consitution that Congress must provide for calling forth, and organizing arming and disciplining.

Which is the same as:

THE Militia of the Several States in Article 2 section 2 that the President is commander of when used in federal service.

Notice there is no definition of "militia" in the constitution? This is because they already existed. They were well known entities that pre-date the contitution. They were codified in the commonweaths/states, and recognized/codified most recently under the Articles of Confederation. They were state entities, but now great amounts of power over them was going to the new govt. THAT is why the 2nd amendment was added...to secure the Militias from being destroyed...by making sure the people could not be removed of the right to keep and bear arms (a phrase pretty much exclusive to military use).

Congress did NOT get the power to create or recreate the State Militias, only to determine guidelines for how they were to be organized, armed and trained (which they did 1st in the Militia Acts of 1792). That is how the State militias were to become well regulated..by Congressional guidelines & trained under the auhority of the States.

These were THE militias that were necessary. These were the Militias that HAD to be armed.

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Response to jmg257 (Reply #11)

Fri Jan 11, 2013, 02:27 AM

27. Just curious...

isn't that why we have the National Guard? Wouldn't that fit the description of "well regulated militia"? It is the states' governors who send them to their assignments, even for Bu$hCheney's wars.

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Response to 2naSalit (Reply #27)

Fri Jan 11, 2013, 03:36 AM

33. Yes.. The National Guard is a well regulated militia.

It serves that role, but it is NOT The constitutional Militia of the several States. Select militia, federally funded, armed and controlled as a reserve part of the federal armed forces. They are federalized by the president.

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Response to 2naSalit (Reply #27)

Fri Jan 11, 2013, 02:48 PM

64. Not really.

The national guard did not start to get formed until the 1880s almost a 100 years after the Constitution. So that is not what the founders had in mind. The national guard was actually formed when there was a great deal of labor strife and states wanted a weapon to control it.

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 12:43 AM

2. Didn't every one of the 13 states adopt a constitution of their own,

and didn't each have a strong statement regarding right to keep and bear arms?

You see, the Bill of Rights was not extended to individuals in the several states until well after the Constitution’s ratification. As a matter of fact, it was the Fourteenth Amendment that eventually extended these rights, well most of these rights, down to the individual,

It absolutely extended to individuals from the very beginning. The states had their own constitutions. Individuals before the US government were guaranteed rights within the constitution and the bill of rights, individuals before the state government were guaranteed the rights within the individual state's constitution. The 14th simply made the US constitution applicable to the states along with most of the bill of rights through various SCOTUS interpretations/decisions. But again, the Constitution and Bill of Rights have always applied to individuals...limitations on the federal government.

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Response to pipoman (Reply #2)

Fri Jan 11, 2013, 01:00 AM

4. It was considered a restriction

on the activities of the federal government. The states could do as they saw fit within the confines of their own constitutions, including any manor of gun control, restriction of free speech, confiscation of property etc. which in some cases they did. In the pre-incorporation days it had to be in the state constitution for you to be protected from state level tyranny.

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Response to Beearewhyain (Reply #4)

Fri Jan 11, 2013, 01:17 AM

8. With that in mind

does anyone wish to return to those days?

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Response to pipoman (Reply #8)

Fri Jan 11, 2013, 01:25 AM

13. Certainly not

But it is just that I think that the original intent or founding father arguments are disingenuous, misplaced, or weak.

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Response to Beearewhyain (Reply #13)

Fri Jan 11, 2013, 01:52 AM

19. And that is where you loose me..

If we have determined application of the Constitution upon the states is a good thing..incorporation..and the intent of the 2nd was as it is written, how is it disingenuous? The second doesn't say, A well regulated militia being necessary to the security of a free state, the right of the militia to keep and bear arms shall not be infringed. No, the founders intended individuals be allowed to keep and bear arms.

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Response to Beearewhyain (Reply #4)

Fri Jan 11, 2013, 01:38 AM

16. So how was the federal govt going to secure our liberties

If all the states decided the militias were to be unarmed??

No one else was declared NECESSARY. No one else was mandated to enforce the laws, suppress insurections or repeal invasions.

The govt would maintain a Navy. They COULD raise an Army. But The Militias were constitutionally responsible to keep the guarantees made there-in!

They better damn well be well armed and well trained!

Edit: this constitution, and the Laws of the US which shall be made...(like Militia Acts that state who MUST provide themselves with certain arms)...shall be supreme...Judge in every state...Laws of any state To the contrary not withstanding

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Response to jmg257 (Reply #16)

Fri Jan 11, 2013, 01:52 AM

18. If I understand how this argument goes

governments don't grant or secure liberties but is simply a representation of the will of the governed? You know, that whole negative verses positive freedom thing. Or are you advocating for state level conscription?

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Response to Beearewhyain (Reply #18)

Fri Jan 11, 2013, 01:58 AM

20. Not sure what you are asking, but...

The Congress mandated by law who must serve in the State Militias. The service of the people was mandatory (pretty much how the States themselves had been doing it for decades). Those people providing themselves with, and keeping!, certain arms was also mandatory.

"Be it enacted by the Senate and House....That each and every free able-bodied white male citizen of the respective States...Shall be severally and respectively enrolled in the militia..."
"That every citizen so enrolled...shall provide himself with a good musket..."



Please Clarify your quesion if I misread it.

Edits. Ipad suk for typing

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Response to jmg257 (Reply #20)

Fri Jan 11, 2013, 02:29 AM

28. A link for context would be beneficial

But I will assume that it is the militia act or some similar thing. If I remember correctly that was at the early founding? Regardless, the argument sounds like conscription. Is that something that you advocate? Should we all be at the call of the CiC or the state for military service? And if so the implication is for mindful regulation in that service to protect the government.

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Response to Beearewhyain (Reply #28)

Fri Jan 11, 2013, 02:52 AM

31. This is from Militia Acts of 1792...

They cover all the organizing, arming and disciplining and calling forth of the state militias per the Constitution.
They are a perfect source for seeing the intent of the 2nd and the militia clauses because they were enacted only a year later. The debates in congress at this time are also informative. FWIW, nobody gave much mention of 'individual' rights re:arms...only with regards to the militia.

I would have had no problem with it...you enjoy the seurity of a community, you give back by helping to protect it. A duty and a right. Any other notion allows the recourse to a professional/standing army (which in those days was not taken lightly). Serving and training was also thought to build pride in oneself, a love of community, a reverence of laws, courage, honor, etc. (Knox A Plan for the Militia)

As Hamilton observed...it wasn't very practical, or effective (federalist 29).

The regulation is vital...uniformity, effectiveness...well armed well trained well functioning. Not so much to protect the govt..but to protect the people, the states, the union...its all there in the constitution: Militias are necessary...to keep the guarantees made to keep us free. (article 4 sect 4...protect from invasion, republican form of govt, protection from dometic violence; the Preamble...justice, tranquility, defense, liberty; article 1 section 8...enforce laws, insurrections, invasion)

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Response to pipoman (Reply #2)

Fri Jan 11, 2013, 01:08 AM

5. No, 3 individual state constitutions did not have a statement about a right to keep and bear arms.

Of the original 13 and their constitutions with specific mention of a Right to Keep and Bear Arms:

Delaware: Yes - Article 1 Sec 20 “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”

Pennsylvania: Yes - Article 1 Section 1 “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty” and Section 21 “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned”

New Jersey: No - There is no right to arms defined.

Georgia: Yes - Sec1 Paragraph 8 “The right of the people to keep and bear arms shall not be infringed”

Connecticut: Yes - Section 15 “Every citizen has a right to bear arms in defense of himself and the state”

Massachusetts: Yes - Article 17 "The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it."

Maryland: No - There is no right to arms defined.

South Carolina: Yes - Section 20 “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”

New Hampshire: Yes - Article 2 “All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state”

Virginia: Article 1.13 “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed”

New York: No - There is no right to arms defined.

North Carolina: Yes - Photocopy of the US 2nd Amendment

Rhode Island: Yes - Section 22 “The right of the people to keep and bear arms shall not be infringed”

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Response to Glassunion (Reply #5)

Fri Jan 11, 2013, 01:18 AM

10. Thanks..

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Response to Glassunion (Reply #5)

Fri Jan 11, 2013, 01:32 AM

14. Good elaborating info...I'm going to use it with my next 'founding fathers' arguers...thanks.

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Response to Glassunion (Reply #5)

Fri Jan 11, 2013, 01:59 AM

21. Thanks

You, as well get a puppy

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Response to Beearewhyain (Reply #21)

Fri Jan 11, 2013, 01:59 AM

22. Sweet! What do I get for all 50 states?

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Response to Glassunion (Reply #22)

Fri Jan 11, 2013, 02:03 AM

23. You get a herd of puppies

that think they are cows

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Response to Beearewhyain (Reply #23)

Fri Jan 11, 2013, 02:06 AM

24. Fair enough... Here you go with a bonus...

All 50 states, with mention of if there is a right to possess arms and/or a mentioned right to self defense in their constitutions along with the last date that the state's constitution was last updated...

Alabama 1819: YES to both… Section 26: “That every citizen has a right to bear arms in defense of himself and the state.”

Alaska 1994: Yes to both… Section 1.1 “all persons have a natural right to life” (not self defense) Section 1.19 “The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.” The individual right to bear arms was generally understood as aimed at protecting self-defense.

Arizona 1912: Yes to both… Section 26 “The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired”

Arkansas 1868: Yes to both… Article 2.2 “All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness” Article 2.5 “The citizens of this State shall have the right to keep and bear arms, for their common defense”

California (no date): Yes and No… Article 1.1 “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” I could find no right to bear arms or similar. They do however take the time to define marriage as between a man and woman. Sec 7.5 “Only marriage between a man and a woman is valid”

Colorado 1876: Yes to both… Section 3 “All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.” And Section 13 “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question”

Connecticut 1818: Yes to both… Section 15 “Every citizen has a right to bear arms in defense of himself and the state”

Delaware 1987: Yes to both… Article 1 Sec 20 “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”

Florida 1990: Yes to both… Article 1 Section 2 “All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty” and Section 8 “The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed”

Georgia 1877: No and Yes… Sec1 Paragraph 8 “The right of the people to keep and bear arms shall not be infringed” Nothing specific on a self-defense right. It has however held up in court in McCoy v. State.

Hawaii 1959: Nope… You are however allowed to enjoy life, just not defend it. They did Xerox the 2nd from the US BOR in sec 15.

Idaho 1978: Yes to both… Section 1 “among which are enjoying and defending life and liberty” and Section 11 “The people have the right to keep and bear arms, which right shall not be abridged”

Illinois 1970: No and Sort of… Like Hawaii you are free to enjoy life, however you have no declared right to protect it. Section 22 “Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.”

Indiana 1851: Yes to both… Section 32 “The people shall have a right to bear arms, for the defense of themselves and the State”

Iowa (no date): Yes and no… Section 1 “All men and women are, by nature, free and equal, and have certain inalienable rights--among which are those of enjoying and defending life and liberty” I can find no right to bear arms.

Kansas 1859: Yes to both… Section 4 “The people have the right to bear arms for their defense and security”

Kentucky 1891: Yes to both… Section 1 “The right of enjoying and defending their lives and liberties” and Section 7 “The right to bear arms in defense of themselves and the State”

Louisiana 1974: No and Yes… Section 11 “The right of each citizen to keep and bear arms shall not be abridged” I could find nothing too firm on the right of self defense.

Maine 1987: Yes to both… Section 1 “among which are those of enjoying and defending life and liberty” and Section 16 “Every citizen has a right to keep and bear arms and this right shall never be questioned.” (One of my favorites…)

Maryland (Orwell’s 1984): Nope… No right to self-defense nor any right to bear arms.

Massachusetts 1780: It is defined in Part1 Article 17 as a collective right.

Michigan 1963: Yes to both… Article 1.6 “Every person has a right to keep and bear arms for the defense of himself and the state”

Minnesota (No Date): Nope...

Mississippi 1890: Yes to both… Article 1.23 “The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question”

Missouri 1945: Yes to both… Article 1.23 "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be
questioned"

Montana 1889: Yes to both… Article 2 “The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question”

Nebraska 1988: Yes to both… Article 1 “All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof” (Another one of my favorites)

Nevada 1982: Yes to both… Article 1.11 “Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes”

New Hampshire 1982: Yes to both… Article 2 “All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state”

New Jersey (no date): Yes and no… Article 1.1 “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty” No right to arms is defined.

New Mexico 1986: Yes to both… Article 2.6 “No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes”

New York: Nope…

North Carolina 1971: No. Self-defense is protected by law, but not the constitution. State v. Kerner. The right to bear arms was a Xerox of the US BOA.

North Dakota 1984 (the real one): Yes to both… Article 1.1 “All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.”

Ohio 1851: Yes to both… Article 1.01 “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty” and Article 1.04 “The people have the right to bear arms for their defense and security”

Oklahoma 1907: Yes to both… Article 2.26 “The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited”

Oregon 1857: Yes to both… Article 1.27 “The people shall have the right to bear arms for the defence of themselves, and the State”

Pennsylvania 1790: Yes to both… Article 1 Section 1 “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty” and Section 21 “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned” (My personal favorite)

Rhode Island 1842: No and Yes… Nothing declaring a right to self-defense. Section 22 “The right of the people to keep and bear arms shall not be infringed”

South Carolina 1895: No and Yes… Nothing declaring a right to self-defense. Section 20 “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”

South Dakota 1889: Yes to both… Article 6.24 “The right of the citizens to bear arms in defense of themselves and the state shall not be denied”

Tennessee 1870: No to both… “That the citizens of this State have a right to keep and to bear arms for their common defense" is a collective right. Nothing declaring a right to self defense.

Texas 1876: Yes to both… (oneshooter can breathe easy) Article 1.23 “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State”

Utah 1984 (again the real one): Yes to both… Article 1.6 “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed”

Vermont 1777: Of course… Ch1 Art16 “That the people have a right to bear arms for the defense of themselves and the State”

Virginia 1971: Nope… Like Hawaii, you can enjoy life and liberty, however it is not defined that you can defend it. And Article 1.13 “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed” is a collective right.

Washington 1889: Yes to both… Article 1.24 “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired”

West Virginia 1986: Yes to both… Art3.22 “A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use”

Wisconsin 1998: Yes to both… Article 1.25 “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose”

Wyoming 1889: Yes to both… Article 1.24 “The right of citizens to bear arms in defense of themselves and of the state shall not be denied”

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Response to Glassunion (Reply #24)

Fri Jan 11, 2013, 02:42 AM

29. You have obviously done some homework

But I do have a question for you. It is my understanding that many municipalities had restrictions on weapon possession especially during the "wild west" days. Admittedly, it might be because I recently watched "Unforgiven" but I did think that it was a semi common practice. Do you know if this is true and if so was there any controversy about it at the time?

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Response to Beearewhyain (Reply #29)

Fri Jan 11, 2013, 02:48 AM

30. I've heard of it, however I have not done any research into it.

So I'm afraid I cannot answer your questions.

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Response to Glassunion (Reply #30)

Fri Jan 11, 2013, 02:52 AM

32. Well then

you only get a small puppy

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Response to pipoman (Reply #2)

Fri Jan 11, 2013, 01:33 AM

15. Not all I think, but some. nt

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 01:09 AM

6. I've been reading over the debates & minutes...

of the various Conventions concerning their Bill of Rights some interesting concepts and how they whittle them down to 10. Following is some of the references I'm using for research. I was interested in how the votes in the Poughkeepsie laid out and who or whom voted for or against the constitution.

Elliots debates Poughkeepsie Convention NY 1787
That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state. 

That the militia should not be subject to martial law, except in time of war, rebellion, or insurrection.

That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power.

Ny's adopted Rights oddly didn't include them mostly they were concerned with due process.

Va. Declaration of Rights...

Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Va. Declaration of Rights written earlier by Madison became the frame work of the later adopted document.

1780 Mass Bill of rights
XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

New Hampshire Bill of Rights 1784

XXIV. A well regulated militia is the proper, natural, and sure defence of a state.

XXV. Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.

XXVI. In all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power.

New Hampshire constantly revised their amendments and made many changes much different than what the first approved.

New Jersey approved 12 amendments. ...



.

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Response to Historic NY (Reply #6)

Fri Jan 11, 2013, 01:18 AM

9. Interesting

Thanks for posting... you get a puppy

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 01:16 AM

7. As of McDonald v. Chicago (2010) the 2nd Amd. is now incorporated

Last edited Fri Jan 11, 2013, 03:01 PM - Edit history (3)

Some personal right to a gun is now secured against all American governments, federal, state, local. That was previously presumed by most jurists, but not formalized.

McDonald v. Chicago, 561 US 3025 (2010), is a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.

http://en.wikipedia.org/wiki/McDonald_v._Chicago



So today the landscape is very different, and requires a somewhat different set of legal arguments. A lot of arguments we hear today are zombie arguments... relics of when incorporation of the 2nd was an open question.


And Obama, bless his little constitutional scholar heart, supported the change, which was a game-changer whether people realized it at the time or not.

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Response to cthulu2016 (Reply #7)

Fri Jan 11, 2013, 01:21 AM

12. Well said..

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Response to cthulu2016 (Reply #7)

Fri Jan 11, 2013, 01:40 AM

17. Heller did cross my mind

but that decision in and of itself deflates the attitude that the second is some immutable concept handed down by some divine influence. And it was another 5 to 4 soooo....

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Response to Beearewhyain (Reply #17)

Fri Jan 11, 2013, 02:06 AM

25. This 5 to 4 along with most others will stand a very long time..

the second is incorporated unless or until there is an amendment to the contrary, and that won't be happening any time soon, imho..

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Response to pipoman (Reply #25)

Fri Jan 11, 2013, 02:21 AM

26. Maybe

but if one of the justices on the five side should retire or otherwise be unable to serve in the next four years we could very well see changes to this as well as many other cases.

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Response to Beearewhyain (Reply #26)

Fri Jan 11, 2013, 04:40 AM

34. Justice Bryer's dissent in Heller, signed by all four of those that voted against the majorty

The Second Amendment says that: “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.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).


Well now, it was unanimous in that their is an individual right, to bear arms...

That makes overturning Heller even more unlikely..

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Response to virginia mountainman (Reply #34)

Fri Jan 11, 2013, 06:40 AM

35. x2

 

Of course, for some, neither the facts nor the law matters.

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Response to Beearewhyain (Reply #26)

Fri Jan 11, 2013, 08:23 AM

38. They will not

accept a case which again answers the simple question of incorporation in either of our lifetimes. It is pretty rare for SCOTUS to overturn itself, and almost never happens within a generation or 2. Even if the make up of the court changes, and the majority of the court leans the other way, they don't go about rethinking and rehearing the same constitutional questions. No, as I said, at this point it would be easier to get an amendment than to take back incorporation of the 2nd, and there isn't the will in the populace for the amendment process on this issue..Really, as is pointed out above, even dissenters agreed that the 2nd is an individual right, and because virtually every other right/liberty in the bill of rights has been incorporated, it would have been contradictory to established case law to leave the 2nd unincorporated..any argument used to justify not incorporating the 2nd could be used to undo existing incorporation.

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Response to Beearewhyain (Reply #17)

Fri Jan 18, 2013, 07:21 AM

80. Sooo... Because it was 5-4 it shouldnt count?

 

5-4 means their side won.

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Response to cthulu2016 (Reply #7)

Fri Jan 11, 2013, 12:39 PM

61. McDonald, not Heller.

Since Heller was a District of Columbia resident, there was no need to address incorporation in his case.

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Response to sl8 (Reply #61)

Fri Jan 11, 2013, 02:52 PM

65. My bad.

Heller/McDonald are often treated as a unit, but McDonald was the real incorporating decision.

I edited the post to make it accurate.

Thanks.

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 08:02 AM

36. Wm Rawle, misunderstood by scalia

This 2ndA debacle & subversion thereof can all be traced to the selection of gwbush as president, & his apptmt of alito & roberts to supreme court, thus enabling the obscene rulings of 2008 & 2010 heller & mcdonald.

THAT is why the 2nd amendment was added...to secure the Militias from being destroyed..by making sure the people could not be removed of the right to keep and bear arms..

Wheee, a scalia clone. Funny how the above, um, reasoning, had never been noted prior to the 21st century (aka scalia's use of 'individual RKBA needed to prevent elimination of the militia')

Here is what one William Rawle wrote, in 1825, in his 2ndA treatise contained in his 'View of the Constitution of {USA}:

Rawle: "In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent.
... The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed."


Justice Scalia had this to say about William Rawle & his Treatise, in his 2008 ruling:

Scalia, 2008 ruling: "Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service...In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: “The first is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent… The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed.""

Scalia cited Rawle verbatim (& fraudulently turned rawle into an individual RKBA adherent when he wasn't). Scalia has completely misunderstood &/or misrepresented Rawle's position on the 2nd Amendment. Rawle was not jubilantly heralding the people having an individual right to keep & bear arms - What Rawle was telling readers, his point, that the RKBA clause is a corollary, a derivative-consequent-resultant, which is directly derived from the need for a well regulated militia.

Scalia then ruled: ".. the operative clause of the Second Amendment -- 'the right of the people to keep and bear Arms, shall not be infringed' -- is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons.."

There you have it, readers, the inanity of scalia's ruling & citing rawle. The COROLLARY & OPERATIVE RKBA clause CONTROLS THE HIGHER LAW MILITIA CLAUSE PROPOSITION IT WAS DERIVED FROM.
The militia clause, accd'g scalia, just introduces RKBA clause, 'oh hi, allow me to introduce to you, the individual right of the people to bear arms outside of militia! I'm just it's daddy'.



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Response to jimmy the one (Reply #36)

Fri Jan 11, 2013, 09:27 AM

46. You posted nothing in conflict with what I said.

THAT is why the 2nd amendment was added...to secure the Militias from being destroyed..by making sure the people could not be removed of the right to keep and bear arms..

The 2nd secured the Militias - it states they are neccessary. The Militias also had to be well-regulated. How were they to be well regulated? They had to be organized, armed, and disciplined according to Congress: armed (by themselves), organized by the Militia Acts, disciplined per Von Stueben's Blue Book under the authority of the states.

Well regulated Militias were necessary...
That is why the people's right to keep and bear arms was secured. (it says EXACTLY that!)

{And BTW, that is a main reason why the religious exemption was removed.}

Why?

Mr Gerry: Now, I am apprehensive, sir, that this {religious exemption} clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty....Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins
In Congress Aug 17, 1789

Mr. SCOTT objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He said, if this becomes part of the constitution, we can neither call upon such persons for services nor an equivalent; it is attended with still further difficulties, for you can never depend upon your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army.
In Congress Aug 20, 1789


You want to argue over what "the right to keep and bear arms" means - have at it, but if you don't get the importance of that right as it relates to the well-regulated Militias, you need to start over.

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Response to jimmy the one (Reply #36)

Sat Jan 12, 2013, 08:02 AM

79. At this point my head hurts.

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 08:11 AM

37. .. what states really thought of ccw

Better be careful who you give out puppies to, B-R-Y, glassunion is good at manipulating things. He posted RKBA from all the states, but left out critical info from the past (& some are still contained within current RKBAs I believe):

(I repost from DU's 'guncontrol/RKBA' forum: .. the history of carrying concealed, and how states handled it in the past; you would usurp the power of states legislatures just so a few can carry their sacred cow in their pocket across a state line?:

1 -- Louisiana: The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. (enacted 1974).

2 -- Colorado: The right of no person to keep and bear arms in defense of his home.. shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. enacted 1876.

3 Kentucky: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons. (enacted 1891).
1879: "A well regulated militia being necessary to .. This shall not prevent the passage of laws to punish those who carry weapons concealed."

4 --Mississippi: The right of every citizen to keep and .. but the legislature may regulate or forbid carrying concealed weapons. Art. III, § 12 (enacted 1890.

5 -- Missouri: That the right of every citizen to keep and bear arms in defense of his home, person and property... but this shall not justify the wearing of concealed weapons. 1945.
1875: "That the right of ... but nothing herein contained is intended to justify the practice of wearing concealed weapons."

6-- Montana: The right of any person to keep or bear arms .. but nothing herein contained shall be held to permit the carrying of concealed weapons. 1889).

7 -- New Mexico: No law shall abridge the right of the citizen ... but nothing herein shall be held to permit the carrying of concealed weapons. 1971, added 1986).
1912: "The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons."

8 -- North Carolina: A well regulated militia being necessary .. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.1971).
1875: Same as 1868, but added "Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice."

9 -- Oklahoma: The right of a citizen to keep .. but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.1907).
http://www2.law.ucla.edu/volokh/beararms/statecon.htm
a gun guru site!

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Response to jimmy the one (Reply #37)

Fri Jan 11, 2013, 08:44 AM

40. I haven't seen anyone proclaim

concealed carry a constitutionally protected right. No, the movement from 6 states with concealed carry to 49 over the last 20 or so years has been driven by popular support in those states. The NRA surely supported this movement, but their support didn't get these concealed carry bills passed, the demands of the population did. This is evidenced by the fact that (I am unaware of) none of the states with concealed carry has a meaningful movement to repeal. In fact #50 came very close to a veto proof margin the last time it was considered in IL..it will likely pass in the not too distant future, and will also likely be accompanied by an incorporation bill within the state making it impossible for Chicago to make their own rules.

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Response to pipoman (Reply #40)

Fri Jan 11, 2013, 09:15 AM

44. You're wrong, pipoman

pipoman: No, the movement from 6 states with concealed carry to 49 over the last 20 or so years has been driven by popular support in those states

This is a LIE. Stop reading the 2nd Amendment MYTHOLOGY bible.
.. there was not one single state which provided a poll which reflected majority support for shall issue concealed carry laws. The majority support ALWAYS sided on REJECTING shall issue ccw (that I ever saw in past 25 years).
.. the ONLY reason shall issue ccw passed was due to republican legislatures ramming it down peoples throats.
,, in 1999, missouri had a referendum on shall issue ccw, and it failed 52% to 48%, and this was after nra spent mabye 5 million dollars to support it, while anti ccw side spent a few hundred thousand. Opposition was greater than 52%, but rabid gunnuts are more zealous & came out in higher proportions than the actual opposition did. You LIE.

NRA surely supported this movement, but their support didn't get these concealed carry bills passed, the demands of the population did.

I bet even the nra told you this, eh? 2nd Amendment mythology. The DEMANDS of the population were OVERRIDDEN by republican legislatures once they got empowered.

This is evidenced by the fact that (I am unaware of) none of the states with concealed carry has a meaningful movement to repeal

BECAUSE, once it becomes law, it takes a majority legislature to repeal it, both senate & house, & then it must survive a governors veto, and the odds of this occurring is slim, so that it doesn't become feasible.
If illinois 'passes' concealed carry, or repeals the proscription on it, it will likely become a 'may issue' state with govt or police discretion as to who can carry concealed. This is fair enough by us who opposed concealed carry on demand. I won't go into a restaurant where I know there are ccw people with guns.

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Response to jimmy the one (Reply #44)

Fri Jan 11, 2013, 09:24 AM

45. I have decided to quit participating in conversations

with people on this topic who can't discuss it without making accusations of freeper, or lying. Edit your post to make your case without this nonsense, or not. If not, have a good day.

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Response to pipoman (Reply #45)

Fri Jan 11, 2013, 09:42 AM

48. translation - ya got me

pipoman: I have decided to quit participating in conversations with people on this topic who can't discuss it without making accusations of freeper, or lying. Edit your post to make your case without this nonsense, or not. If not, have a good day.

Translation: You got me.
Lying is lying, telling a falsehood. You lied, what should I've said? you want kid gloves? you on the wrong msg bd topic, buy a cuddly puppy, ask BRY for a good website.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

jmg: The Militias also had to be well-regulated. How were they to be well regulated? They had to be organized, armed, and disciplined according to Congress: armed by themselves & trained by the states.
That is why the people's right to keep and bear arms was secured. (it says EXACTLY that!)


You know you contradict scalia's definition of 'well regulated', don't you? altho I do agree with you to most extent, as in discipline & firearm logistics is 'well regulated'.

Justice Scalia ruled, ".. the adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.

Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such {militia-related} purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it."

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Response to jimmy the one (Reply #48)

Fri Jan 11, 2013, 10:04 AM

51. Uh, no

Translation is, if I must be blunt, I am not responding to posts in which the poster doen't have the decorum or command of language to make their point in a respectful way.

BTW, I obviously know exactly where I am as is evidenced by my 9000 + posts and 7 years..

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Response to pipoman (Reply #51)

Fri Jan 11, 2013, 06:58 PM

76. being pro gun means never having to say you're sorry, or wrong

pipoman: Translation is, if I must be blunt, I am not responding to posts in which the poster doen't have the decorum or command of language to make their point in a respectful way.

Uh huh; just another way to back out of having to retract or apologize for the misinformation you posted. (aka LIES).

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Response to jimmy the one (Reply #76)

Fri Jan 11, 2013, 07:40 PM

77. I explained, very simply, what you need(ed) to do to get a response..

you chose not to do the right thing, now goodbye.

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Response to jimmy the one (Reply #48)

Fri Jan 11, 2013, 11:58 AM

59. Other then the obvious role of the SCOTUS, I really don't care too much what Scalia says.

Like all opinions it is interesting no doubt, but I prefer to make up my own mind when it comes to stuff like this.

It doesn't take but some fun (but at times frustrating) reading and research to find out what "well-regulated" meant, what "free State" meant, what "arms" were, what the true Militias were and why they were so important.

I determined for myself that it is pretty hard to make the case that "the right to keep and bear arms" as secured in the 2nd is not related to the Militia.

-There are TONS of contemporary examples of this phrase being used in its miltia context, and very few 'individual' references
-debates revolved almost exclusively around the militia, not individuals
-yes, there ARE examples to provide doubt, but that is the purpose of the preamble of the 2nd amendment, to further explain the restriction that follows if it's meaning is in doubt.

I think this is where you and I most disagree - I don't think the Militia preamble carries more weight then the restrictive clause that follows...I do think the use of "necessary" is very important, and that the security of the right that follows is just as important.

I also think the people have the right to arms as individuals, just as any other property. I aam tending to think compelling interests may be used to restrict those rights to some extent.

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 08:36 AM

39. no militia individual RKBA dichotomy in 1791

va mtn man posted: (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.
vamtnman - Well now, it was unanimous in that their is an individual right, to bear arms... That makes overturning Heller even more unlikely..


va mtn man misleads, the court split 5-4 with the 4 liberal justices supporting the militia interpretation. The militia interpretation is sometimes known as the 'narrow individual rights' interpretation, acknowledging a lesser individual ability to keep guns in the home but still being RKBA incumbent upon well reg'd militia service. I actaully subscribe to this myself. There was no 'individual vs militia' dichotomy in 1791 when 2ndA written.

In 1939, the Supreme Court last considered a 2ndA case prior to 2008, the 1939 Frank Miller case. It unanimously 9-0 decided in favor of a militia interpretation of the 2ndA (note that the 2008 individual rights ruling was narrowly split 5 to 4).
.. here are two excerpts from what the supreme court ruled in 1939, when Frank Miller carried a sawed off shotgun across state lines & subsequently argued 2ndA protection:

1) "The Constitution as originally adopted granted to the Congress power - 'To provide for calling forth the Militia to execute the Laws of the Union'.... With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
2) "In the absence of any evidence tending to show that possession or use of a at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.."


Those two passages were from the UNANIMOUS Supreme Court ruling in 1939, and seem to be pretty self explanatory, yes? despite the modern day spin jobs.
Since then, starting about the 1960's in strength, the gun lobby has fabricated some clever song & dance to explain how the 1939 Miller ruling was not a ruling for the militia interpretation, but was merely a non committal sidestep by the 1939 court which really didn't address the intent of the RKBA clause of the 2ndA. Despite the patent clarity in the above two paragraphs, the gun lobby conjured up phantom support & contends the 1939
ruling somehow actually supports an individual RKBA theory.

Prudent people might wonder why, if this gun lobby song & dance were so, at least one of the 1939 Supreme Court Justices wouldn't have objected to the above wordings, hold on fellow justices, look at the way we've worded our ruling & opinions, future generations are going to think we ruled for a militia rights interpretation.
Yet not one single 1939 Justice objected - they were satisfied that what they wrote was fit & proper, and expressed their opinion of what the Second Amendment entailed, a right incumbent upon a well regulated militia.

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Response to jimmy the one (Reply #39)

Fri Jan 11, 2013, 08:49 AM

41. The Miller argument is disingenuous

in that the plaintiff in the case, Miller, was dead by the time his case went to SCOTUS. Nobody showed up to argue Miller's case before SCOTUS. Because of this SCOTUS didn't have an opposing argument to consider. It is not unlike the failure to appear for a court case at a lower level. Failure to appear nearly always results in a decision in favor of the side of the case which does appear.

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Response to pipoman (Reply #41)

Fri Jan 11, 2013, 09:03 AM

43. Thanks pipoman

pipoman: Miller, was dead by the time his case went to SCOTUS. Nobody showed up to argue Miller's case before SCOTUS. Because of this SCOTUS didn't have an opposing argument to consider. It is not unlike the failure to appear for a court case at a lower level. Failure to appear nearly always results in a decision in favor of the side of the case which does appear.

Thanks for agreeing, pipoman, that the 1939 ruling was for the militia interpretation of the 2ndA.
I'm forwarding your opinion to the nra, & gun gurus john lott, gary kleck, cramer, volukh, & kopel.

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Response to jimmy the one (Reply #43)

Fri Jan 11, 2013, 09:34 AM

47. When did I ever state I am in agreement with any of those mentioned?

You wished to stand on the Miller decision as some sort of platitude. I believe the Miller decision is completely irrelevant. Further, had someone argued Miller's case, I don't believe sawn off shotguns would have been put under the NFA as they actually were "in common use for lawful purposes" at the time, an argument which almost certainly been made if any argument had been made. The military used them and woodland partridge hunters used them extensively.

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Response to jimmy the one (Reply #39)

Fri Jan 11, 2013, 10:16 AM

53. Think about what things would be like if Miller was carrying a BAR instead of a SOSG...

Fully auto weapons (and detachable box magazines) would be legal, and any restrictions about them declared unconstitutional.

"In the absence of any evidence tending to show that possession or use of a at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.."

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 08:58 AM

42. what IS the constitutional militia these days, jmg?

jmg: It serves that role, but it is NOT The constitutional Militia of the several States. Select militia {national guards, ie california national gds} , federally funded, armed and controlled as a reserve part of the federal armed forces. They are federalized by the president.

So what IS the constitutional militia of the several states, jmg? today, not ydays.
In 1792 it was all white males aged 17 - 45, or approx 20% of the american population (1790 census), where of 3 million americans, ~20% slaves, ~40% white males, ~40% white females.

The Militia Act of 1792 came the year after 2ndA was written in 1791, the 1792 militia act in good part detailed & described what the 2ndA was written for. DUH.

The BRITISH actually refuted scalia's 2008 ruling, and scalia's aberrant misinterpretation of the british bor/have arms decree 1688: ... contrary to discredited scholarship upon which Heller relied, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm.
The “have arms” provision in the English Declaration of Rights .. provided two protections to the individual. First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders.
Second, the grant of a right to “have arms” was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of “self-preservation” and “resistance” should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.

The Supreme Court correctly found that the English right to “have arms” was an expression of the same right that has “long been understood to be the predecessor to our Second Amendment.”
Where the Court erred was by interpreting the quoted terms in a manner divorced from their historical context, reading “individual” to mean “private,” “defence” to mean “defense against harm by private individuals acting for private purposes” and equating “self-preservation” with the modern usage of the term “self-defense.”
In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point.
The origins of in the English right to “have arms” demonstrate that this right of self-preservation/self-defense gives individuals the right to collectively defend their public interests against organized assault or tyranny, not only in case of a foreign invasion, but, in 1689, in the event of a Catholic plot to overthrow English Protestants.
Moreover, the right of “self-preservation” was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise.

.. the “self” referred to by these speakers was the public “self” – the collection of rights that lay at the heart of an Englishman’s identity, which were intended to be protected by his elected representatives in Parliament. (Thus, the word “people” was also frequently used interchangeably with “Parliament.”)
...The term “self-defence” was used in the same sense: principled rebellion of the people against tyranny.
http://www.oyez.org/sites/default/files/cases/briefs/pdf/brief__08-1521__22.pdf

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Response to jimmy the one (Reply #42)

Fri Jan 11, 2013, 09:49 AM

49. Why post mutterings on the English Declaration of Rights?

If you want to talk about the Constitution, then let's talk about it.

In 1789, the Constitutional Militias were very well defined entities. They were the Militia of the Several States.

Articles of Confederation, 1777:
"but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage."

These Militias existed. They were not something left to be created from broadcloth. Nor were they were something to be recreated at the whim of the govt. The well regulated militia existed before the constitution. And THEY were THE well regulated militia declared necessary in 1791.

Yes, yes, the people made the constitutional Militia of the several States, as existed and were defined at the time of the constitution, obsolete - I understand all that. So yes, the National Guard is the current day well regulated Militia...it serves that role, and others. But is has only some slight resemblances to the State Militias as recognized and deemed necessary in the Constitution, and as were provided for, just as they always had been, in the 1st Miltia Acts.


Anyway - what's the point you are trying to make?


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Response to jmg257 (Reply #49)

Fri Jan 11, 2013, 10:15 AM

52. rev war & colonial militias were inefficient

jmg: In 1789, the Constitutional Militias were very well defined entities. They were the Militia of the Several States.

Right. And Washington & many others including Nathaniel Greene thought the states militias in the rev-war were incompetent baboons, inclined to run away & desert when british regulars appeared. In the battle of long island, brooklyn & manhattan, 8,000 militia started out but only about 2,000 were left at campaign's end, often taking their issued musket with.

These Militias existed. They were not something left to be created from broadcloth. Nor were they were something to be recreated at the whim of the govt. The well regulated militia existed before the constitution. And THEY were THE militia declared necessary.

No, colonial & rev-war well regulated militias were NOT the rule of thumb. They tended to be sloppy, indifferent, sometimes arrogant, incompetent & inefficient. That is what the 2ndA tried to correct, the inequities from prior colonial militias & rev-war militias. 2ndA intent was to create a new militia system due the failures of the past militia systems. The british did not allow carte blanche firearms ownership to people prior to 1775, for one thing there were scant muskets to go around, & ineffective they were. And militias were subject to the crown as well, & we've seen that the british considered the 'have arms' decree incumbent upon belonging to militia.

Yes, yes, the people made the constituional Militia of the several States, as existed and were defined at the time of the constitution, obsolete - I understand all that.
So yes, the National Guard is the current day well regulated Militia...it serves that role, and others.
But is has only a slight resemblance to the State Militias as recognized and deemed necessary in the Constitution. And as provided for exactly as they were understood in the 1st Miltia Acts.
Anyway - what's the point you are trying to make?


What was the point I - I - I was trying to make? what's YOURS?
.. the national gds do NOT have to provide their own weapons to enlist, that's absurd.
.. there IS no well regulated citizens militia today, something which was mandated by the 2ndA. A citizens right to keep & bear arms today has NOTHING to do with maintenance of the national guards, especially when federalized.
.. there IS a powerful standing army, as well as a powerful floating navy & flying air force, which a citizens militia was supposed to guard against.
.. the UNorganized militia of everyone over 17 who does'nt belong to the national guards, is, by definition of unorganized, not 'well regulated', and thus fails the 2ndA litmus test.

.. So explain why the 2ndA isn't obsolete, as you say?

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Response to jimmy the one (Reply #52)

Fri Jan 11, 2013, 10:42 AM

55. Yes.

Yes:
-The Constitution was an attempt to improve the efficiency of the State Militias.
-Well regulating the existing Miltias of the several States was one of its goals.
-The Militias, even well regulated ones, were not very effective, nor convenient.
-Washington, Knox, etc. weren't much for militias as the primary martial arm.
-Washington pushed the 1st Congresses to come up with Militia Acts ASAP (hopefully his and Knox's notion of them).

...what's YOURS?
My point is that the States could not disarm the Militias any more then the Congress could, otherwise they wouldn't be well regulated, and could not be counted on to secure our liberties. This point and others are very evident in my intial posts to this thread.


.. the national gds do NOT have to provide their own weapons to enlist, that's absurd. {note: who said they did???}. there IS no well regulated citizens militia today, something which was mandated by the 2ndA. A citizens right to keep & bear arms today has NOTHING to do with maintenance of the national guards, especially when federalized.

Thank You, which quite clearly shows why, among other reasons*, the National Guard is not the Militias as recognized and codified in the constitution, secured by the 2nd, and provided for in the 1st Militia Acts.
(*volunteer, federally armed and funded, branch of the standing armies, reserve for the federal forces, serve overseas, etc.)

Yes:
.. there IS a powerful standing army, as well as a powerful floating navy & flying air force, which a citizens militia was supposed to guard against.
.. the UNorganized militia of everyone over 17 who does'nt belong to the national guards, is, by definition of unorganized, not 'well regulated', and thus fails the 2ndA litmus test.


Agreed. I have posted this numerous times myself.

edit: Sorry - your last point...
.. So explain why the 2ndA isn't obsolete, as you say?

When have I said it wasn't?









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Response to jimmy the one (Reply #42)

Fri Jan 11, 2013, 11:02 AM

56. The Other Half

"The Militia Acts of 1792, based on the Constitution's militia clause (in addition to its affirmative authorization to raise an army and a navy), would have required every "free able-bodied white male citizen" between the ages of 18 and 45, with a few occupational exceptions, to "provide himself" a weapon and ammunition." The Government used an individual mandate that it was law to own a gun.
But you also knew that it was repealed, and never challenged before the Supreme Court. Thus MOOT and unenforceable.

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Response to 4Q2u2 (Reply #56)

Fri Jan 11, 2013, 12:30 PM

60. Can you explain your last points?

The Government used an individual mandate that it was law to own a gun.
But you also knew that it was repealed, and never challenged before the Supreme Court. Thus MOOT and unenforceable.


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Response to jmg257 (Reply #60)

Fri Jan 11, 2013, 02:16 PM

62. I worded

it poorly. There was a section in the MIL Act of 1792 that ordered all White Males ages 18-45 so on. That purchase of a weapon and ammo was mandatory. Defenders of Obama care actually used this argument for the Governments right of an Individual Mandate. Secondly the Acts were not Federally enforced and their Constitutionality was never challenged in Court, and the Law was eventually repealed. So citing that piece of legislation for defining Militia is Moot. It no longer has any meaning in the Law.

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Response to 4Q2u2 (Reply #62)

Fri Jan 11, 2013, 02:41 PM

63. The MA 1792 is brought up to show intent....

of the militia clauses and the 2nd amendment. What better way to illustrate what the FF were thinking then an act passed so soon by many of the same guys? And one based so very much on 'how things were done and had been done' at the time.
Need to know what was meant by 'well regulated militia' or 'Militia of the Several States'?...there it is.

That piece of legislation and the debates surrounding it are wonderful examples of what the constitutional Militias were, how arms would be provided, how the miltias were to be organized, trained, called forth, etc.
Need to know how they were armed or organized or disciplined? There it is.
Also nice example to contrast with other notions of the militias should be (i.e. Washington & Hamilton) to see what people were thinking and why.

Along with the text in the constitution itself, they are perfect for this OP.


Why would they be challenged in court? Obviously no one had a problem with them on constitutionality issue.
Other then minor changes, they pretty much lasted intact for over 100 yrs till the ineffectiveness of the state militias was dealt with.



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Response to jmg257 (Reply #63)

Fri Jan 11, 2013, 03:17 PM

67. So should we then use

all old and bad case law to pretzel what ever Law we are trying to change or write now. Plesey has intent on what older generation thought of the Law. I am also pretty sure that SCOTUS did not look at too many older laws for intent in Kelo either. Lots of people had problems with them at the time just not enough to overturn, but enough of them to not enforce it at the Federal level. It was odious in terms of fines and imprisonment, the poor were at a greater burden and suffering than the rich due to the statue. That is what you want to quote for your argument, Bad Law, that was also ineffective in its intent thus repealed 3 yrs later. Not to mention States starting 1840 totally ignored it and rewrote their own regulations for the militia.

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Response to 4Q2u2 (Reply #67)

Fri Jan 11, 2013, 03:44 PM

69. You can use whatever you want for whatever you want...that's your choice.

The topic here is not making new laws, but the investigation of the constitution and the BOR, and their intent and scope.

If I want to show the results or meanings of the militia clauses, & the 2nd, and the intent of the framers with regards to the militias, and also be able to contrast those constitutional entities with the National Guard, damn straight I'll quote the 1st Militia Acts! No better way to illustrate exactly how the 1st congresses handled the powers & responsibilities they were tasked with. And combined with the debates and other noteworthy writings, illuminate lots of other related notions. (as shown often right in this thread)


Repealed? Officially sure, but in actuality?, just changed ever so slightly...over a 100 years.

"Act of February 28, 1795, made small revisions in Sections 2, 4, 5, and 10 of Act of May 2, 1792. The 1795 act was the authority for ruling in Houston v. Moore, 1820. Other revisions were enacted April 18, 1814]"
http://www.constitution.org/mil/mil_act_1792.htm

Section 2
"{words requiring notification by an associate justice or district judge were omitted in 1795 revision. The revision gave the President more authority}"
Section 4
"{omitted in 1795: "who may be in service at the same time, or who were last in service, and shall be subject to the same rules and articles of war"}:"
Section 5
"{words added in 1795: and be incapacitated from holding a commission in the militia, for a term not exceeding twelve months, at the discretion of the said court:}"

http://civilwartalk.com/threads/militia-act-of-1792-revised-in-1795-and-lincoln.16928/
"The link below contains the Militia Act of 1792 and its revision in 1795...

From the Militia Act of 1792.
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state tosuppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."

Here is the repeal of the above Section 2, from the Militia Act of 1795.
"Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, {words requiring notification by an associate justice or district judge were omitted in 1795 revision. The revision gave the President more authority} the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."

Here is Section 10 of the Militia Act of 1792 that only provides for a two year limit on the Militia Act of 1792.

"Sec. 10. And be it further enacted, That this act shall continue and be in force, for and during the term of two years, and from thence to the end of the next session of Congress thereafter, and no longer."

Here is Section 10 of the the Militia Act of 1795 that repeals the Militia Act of 1792.
"Sec. 10. And be it further enacted, That the act, intitled "Act to provide for calling forth the militia, to execute the laws of Union, suppress insurrections, and repel invasions," passed the second day of May one thousand seven hundred and ninety-two, shall be, and the same is hereby repealed."


Not that big a difference, really. And not one that matters re: the original intent and scope of the constitution.

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 09:57 AM

50. It's hard to get past this basic factual error: "the Bill of Rights was not extended to individuals

in the several states until well after the Constitution’s ratification."

This is true only because the Constitution was ratified in 1788, and the "Bill of Rights" (which consists of the first ten Amendments to the US Constitution--the 14th came later) was ratified in 1791.

The "Incorporation" doctrine that developed around the 14th Amendment "extended" the restrictions on government detailed in the Bill of Rights to State governments as well.

But the Bill of Rights were ALWAYS "extended to individuals", from the date of their ratification.

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Response to Romulox (Reply #50)

Fri Jan 11, 2013, 10:26 AM

54. incorporation a giant leap of faith

romulox: But the Bill of Rights were ALWAYS "extended to individuals", from the date of their ratification.

The american bill of rights has pretty much been accepted/defined as protecting individual rights as well as limitations on the congress.
.. but the 'individual' rights which the 2ndA conferred, were individual rights to belong to the militia - which could not be infringed upon.
As scalia correctly wrote the 2ndA evolved from the british 1688 bill of rights/have arms decree, which as explained by the british scholars, granted an individual right to belong to a militia to protect the crown.

Whether the 14th amendment confers states rights due incorporation comes well after the fact, & intent of james madison & what the 2ndA entailed. It also comes after an earlier circa 1830's ruling against the bill of rights pertaining to the states.
To base the 2ndA on what transpired by societal changes decades later, is a giant leap of faith succored by scalia & his clones & minions.

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Response to jimmy the one (Reply #54)

Fri Jan 11, 2013, 11:08 AM

57. Many of Court

rulings have changed becasue of society. Roe vs Wade would never have passed muster in 1830. Brown vs Board of Education was a full reversal of Separate but Equal.

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Response to jimmy the one (Reply #54)

Fri Jan 11, 2013, 11:57 AM

58. Those are two different arguments. We can't just gloss over the error in the premise to get

to the desired conclusion.

The Bill of Rights has ALWAYS applied to individuals. Since it was ratified in 1791.

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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 03:15 PM

66. Which side you on, jmg? I be confused now.

Maybe I am misreading which side you are on (that might be a first).
.. it was when you wrote the following, which sounds so much like how scalia ruled for an individual RKBA - to prevent elimination of the militia.

you jmg wrote: ...to secure the militias from being destroyed...

I was under the impression you agreed with scalia's ruling that the 2ndA provides an individual RKBA disconnected from militia service/duty, and 2ndA grants an individual right to keep & bear arms, simply so as to provide some kind of force pool for the 'national' militia when federalized - to prevent this national militia from being eliminated.
You do recall that scalia ruled the 'state' in 2ndA's 'the security of a free state' did not pertain to the several states but to the national polity 'the United States'.

Maybe I am wrong, pls clarify & if we basically agree I will certainly apologize.
I feel scalia's 2008 & 2010 rulings subverted the 2ndA, but you knew this. How do you feel about scalia's rulings, that should make it clear. You seem to argue for the militia interpretation, but there's something cloudy in how you talk that I don't comprehend.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I & jmg wrote: .. the national gds do NOT have to provide their own weapons to enlist, that's absurd. {note: who said they did???}.

It appeared to be what you were saying in your last sentence below:

yes, the National Guard is the current day well regulated Militia.. But is has only a slight resemblance to the State Militias as recognized and deemed necessary in the Constitution. And as provided for exactly as they were understood in the 1st Miltia Acts.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(15 minutes later) jmg wrote: This is because {militias} already existed. They were well known entities that pre-date the contitution. They were codified in the commonweaths/states, and recognized/codified most recently under the Articles of Confederation. They were state entities, but now great amounts of power over them was going to the new govt. THAT is why the 2nd amendment was added...to secure the Militias from being destroyed...by making sure the people could not be removed of the right to keep and bear arms (a phrase pretty much exclusive to military use).

That was scalia's rationale, that 2A was to prevent national militia from eliminaton, or as you put it 'to secure the militias from being destroyed' (first appearing near start of 21st century, by gun lobby).. BIG difference is that you write plurally militias, whereas scalia thought of the singular national militia.

jmg cont'd: Congress did NOT get the power to create or recreate the State Militias, only to determine guidelines for how they were to be organized, armed and trained (which they did 1st in the Militia Acts of 1792). That is how the State militias were to become well regulated.. These were the Militias that HAD to be armed.

In any event jmg, if I misinterpreted you or misrepresented you I duly apologize, and it's nice to meet you. You too BRY-ain.

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Response to jimmy the one (Reply #66)

Fri Jan 11, 2013, 04:17 PM

70. Whew - this will take some time...question for you 1st while I type...

What do YOU think the 2nd Amendment does/secures?

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Response to jimmy the one (Reply #66)

Fri Jan 11, 2013, 04:48 PM

71. OK - let's get at this...

That was scalia's rationale, that 2A was to prevent national militia from eliminaton...

Mr Gerry: Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia itself. 1789, not the 21st century.

This is why I use the term "destroy the militia"...it shows exactly what the FF had in mind when they wrote the 2nd. The purpose of the 2nd amendment is to secure the Militias....i.e. THEY ARE NECESSARY. They were thought to be THE BEST SECURITY of a free State/country. The CAPITOL SECURITY, etc. etc. We all know why (recourse is a standing army).

HOW do you destroy a militia? You...
1) disarm it! THIS IS what the 2nd is about! Congress now had power over the Militias, for organizing, arming, etc...and the people/states were worried this power could be usurped to DISarm them.

2) you leave it ineffecient. You do not well-regulate it. You ignore it and the powers entrusted to you to arm, organize and discipline it. {I messed this up above, the existing State Miltias were not well-regulated, but the point is they did exist already}

3) you keep vasts amount of people from being able to serve in it...through whatever means - by designating thoise who are religiously scrupulous (and so are exempt from bearing arms) might be one way.

BIG difference is that you write plurally militias,

"The Militia" was a plurality of entities...they are the Militia of the Several States (i.e. today there would be 50 of them). There was NO national militia, only the/a portion of State Militias used in federal service.

This is also why I capitalize State & Militia - because that is how it appears in the Constitution, they are specific entities, compared to "a well regulated miltia', as used in the 2nd. BUT supposedly per the study of documents of law: 'militia' 'legally' means 'The Militia' which IS 'The Militia of the Several States'.

security of a free State

I orignally thought 'state' was a state of being. Learned much since then In contemporary times, this phrase was used quite often to refer to a free Country. The 2 terms were interchangable. The declaration of Independence refers to the State of Great Britian, as well as 13 free and independent States. The amendment as proposed originally said 'free country'. It is my thinking (thanks to some here), that 'country' was changed to 'State' to better appease the states yet to ratify. Whether it actually means 1 of the 13 states, which were still very independent, or the new Republic, I am not so sure...BUT it is in a declaration of why the Militias were neccessary, and only the States had Militias, so I'll go with 'State' means 1 of the 13 (but it really is not all that important if the preamble is a declaration, an observation. There was only 1 type of Militia that is required - the State Militias).

MY thoughts next...

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Response to jimmy the one (Reply #66)

Fri Jan 11, 2013, 05:12 PM

72. I'm on my side...probaly why its confusing :). No time left to get into it now, but

generally I feel if there is a compelling interest to restrict rights, and that is the decided sense of the public, then some restrictions are in order.

I don't get all that worked up about the security of the 2nd amendment...I'm more with Madison, thinking

"The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public"

I accept that, right or wrong, constitutionally or not, the amendments have been circumvented before, including the 2nd, they can be again.

I'll have to articulate more specifics ASAP.

Cheers!

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Response to jmg257 (Reply #72)

Fri Jan 11, 2013, 06:53 PM

74. just mighty Grand, jmg

Reading your 'treatise on the 2nd Amendment', seems I did read you wrong on several issues, & that we likely agree more than disagree. Cheers to you too, jmg.

jmg:This is why I use the term "destroy the militia"..it shows exactly what the FF had in mind when they wrote the 2nd. The purpose of the 2nd amendment is to secure the Militias

Fair enough; but they back then didn't think the 2ndA nor the Mil Act 1792 were written simply to 'prevent elimination of the State/national militia' as scalia ruled. They originally thought that 2ndA/MA1792 were both to create militia & succor it & improve it. Wm Rawle might even have noted this in 'his' treatise I posted (I can't access that right now since replying) or if not it's in his other treatise on the military, a separate chapter in 'A View of the C..'
.. parents feed their children to 'prevent them from dying', true in the macabre' sense, but moreso to succor them, nourish them, help them grow, same with militias, scalia.

HOW do you destroy a militia? You... 1) disarm it! THIS IS what the 2nd is about! Congress now had power over the Militias, for organizing, arming, etc...and the people/states were worried this power could be usurped to DISarm them.
.. 2) you leave it ineffecient. You do not well-regulate it. You ignore it and the powers entrusted to you to arm, organize and discipline it.
.. 3) you keep vasts amount of people from being able to serve in it..


Little to argue with here, so concur.

{BIG difference is that you write plurally militias,}.. jmg: "The Militia" was a plurality of entities...they are the Militia of the Several States. There was NO national militia, only the/a portion of State Militias used in federal service.

That's what I meant by national militia, states militias when federalized circa 1790s. The great 'national system'. The use of 'militia' & militias was confusig in 1790 as well, if I can find one passage by, um, a notable FF I'll demonstrate what I mean, alex maybe.

... security of a free state .. this phrase was used quite often to refer to a free Country. The 2 terms were interchangable. The declaration of Independence refers to the State of Great Britian, as well as 13 free and independent States. The amendment as proposed originally said 'free country'.... BUT it is in a declaration of why the Militias were neccessary, and only the States had Militias, so I'll go with 'State'..

Bet you never read what I'm about to say: I think madison may have intentionally worded it 'state' so as to be coy & ambiguous & to concommitantly refer to both the State as well as the states, both states militias & State federal militia. ------ Told ya so!

PS: I see you caught onto the {grand brackets???} too -- we both discovered the State of affairs which exists when 'normal' brackets are employed - a State of nothingness, eh?!
(explanation to readers: the normal usage of [ bracket followed by the end bracket will come up showing nothing at all, so don't use normal brackets, use 'grand brackets', or whatever they're called..)

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Response to jimmy the one (Reply #74)

Fri Jan 11, 2013, 06:56 PM

75. Cheers! off now to a dinner out! nt

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Response to jimmy the one (Reply #66)

Fri Jan 11, 2013, 06:46 PM

73. Part of the confusion is possibly a desire to put people on 1 side or the other.

I don't worry so much about that anymore. If into guns, of course I would stress (and search for) the individual aspects of the right. I have done that before. If looking to add restrictions, I would lean towards the Militia association. I have done that too. But as I noted previously, I am not all that hung up on the security of the 2nd. I certainly would not "hide behind it" if laws were passed I did not agree with...just not worth it...any perceived needs to own guns (especially illegally), aren't all that real strong these days.

I have been back and forth on the specific issue. Most recently, when looking specifically between Scalia opinion and Stevens' dissent in Heller I leaned towards Stevens. I too see that in the actual Congressional debates, there was VERY little discussion, or worry, of 'the right to keep and bear arms' being considered as an individual right. This phrase seemed to always be discussed in a militia-related context. Did the framers 'just' assume an individual right existed? No doubt. Were they all that worried the Congress would disarm the people individually - didn't seem likely. It is obvious they were primarily concerned with securing the right in order to keep the militias effective.

And yet other people, the ratifying conventions, etc. were concerned with the individual aspects of the right. They wanted ot secured beyond the use of guns for militia service. There were obviously concerns for the rights of individuals, and examples of uses of 'to bear arms' in a personal context did exist.

Bottom line, I'd be hard pressed to bet my life on which one was the actual intent. No doubt the primary purpose of the 2nd is for the existence of the well regulated militias. No doubt the people have a right to own guns, and as Rawle states: No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people.
I just have seen nothing conclusive 1 way or the other. Luckily, it is not all that important for me to pick a side. Despite the concerns of an overreaching majority, I guess I shall see what is the decided sense of the public.




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Response to Beearewhyain (Original post)

Fri Jan 11, 2013, 03:42 PM

68. Wm Rawle's Treatise on the 2ndA, 1825

Here is William Rawle's Treatise, from his 'A View of the Constitution of the United States', 1825, revised 1829.

Rawle's treatise is roughly half devoted to domestic interpretation, and the other half to 'foreign affairs'. Note how much of the top half ('domestic' half), Rawle devotes to a description of citizen's militia (+emph):

"In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a propositon from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruuptions of the ordinary and useful occupation of civil life. In this all the Union has a strong and visible interest.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."


: "In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, 'suitable to their conditions, and as allowed by law'.
An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited.
Blackstone , in whom we regret that we cannot always trace the expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws.
This right ought not, however, in any government, to be abused to the disturbance of the public peace. An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment."


Rawle has devoted about one third of his overall treatise remarks towards the militia concept. Rawle then devotes a short paragraph discussing flagitiously disarming the people, by Congress or state's legislatures. This is not an endorsement of an individual RKBA with no connection to militia service (scalia's opinion), for in context, it was immediately following the much lengthier discussion of militia concerns & the corollary remark. There are two ways for authors to comment on things, one by observing, the other opinions. Rawle could observe militias in action, but tyrranical american states or congresses had yet to be seen. Rawle also thought states could secede from the union, a bit eccentric at times.
Nowhere in the domestic half of his treatise, does Rawle mention self defense or hunting in connection with the American RKBA. He dwells on english hunting within the foreign affairs half, as part of bashing England, but makes no comparative argument regarding hunting. He was certainly arguing that the american 2ndA right (for militia) to bear arms, was superior to the english (protestant) RKBA.

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Response to Beearewhyain (Original post)

Sat Jan 12, 2013, 07:55 AM

78. english RKBA an individual right to belong to militia

jmg: Most recently, when looking specifically between Scalia opinion and Stevens' dissent in Heller I leaned towards Stevens. I too see that in the actual Congressional debates, there was VERY little discussion, or worry, of 'the right to keep and bear arms' being considered as an individual right. This phrase seemed to always be discussed in a militia-related context. Did the framers 'just' assume an individual right existed? No doubt. Were they all that worried the Congress would disarm the people individually - didn't seem likely. It is obvious they were primarily concerned with securing the right in order to keep the militias effective.

I think I agree with what you say, tho not exactly how you phrased the underlining above; there were few restrictions on owning muskets in the late 1700's, it was tacitly understood that if you could obtain a good musket legally you had relatively done well and as long as you were level headed with it you had no problem with the law.
But there was no argument between 'militia' right vs 'individual' right, prior to the 2ndA. This argument developed in the early 1800s, as much developed by militia scofflaws.
.. there was no dichotomy, but there likely existed some kind of 'phantom right' to have a firearm, which wasn't codified but was just tacit. This is how I perceive the 'narrow individual right' which later came about after 2ndA written, tho adjunct to the militia based right.

Consider these excerpts lifted from Justice Joseph Story, circa early 1833, example how people & militia were used synonymously:

Jos Story: The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it {RKBA} offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

Jos Story: The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.


Justice Story refers to the citizen's RKBA as the palladium of liberties, to check against usurpation & arbitrary power of rulers, enabling victory over rulers. Which is what he praises the militia for in the following sentence. Convincing evidence that Joseph Story believed the people's RKBA to be synonymous with the militias, & not individual.
Impossible to see how individuals with firearms could be the 'natural defence of a free country' against invasions, insurrections, & usurpations of power, with no organization.

~~~~~~~~~~~~
you asked about mutterings on the english 'have arms' decree (no offense now taken), it was because scalia wrote this:

III. England's RKBA (from chapt 16): Justice Scalia cited Rawle citing the english RKBA: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." W. Rawle-(A View of the C).
Justice Scalia then ruled on the above english 'RKBA': "It was clearly an individual right, having nothing whatever to do with service in a militia."

Scalia then went on to write that the english RKBA was the precursor to 2ndA {true, everyone agrees including the british}, that's the rub.
Since scalia considered the english RKBA an individual RKBA, and used that rationale, in part, to contend that the 2ndA had evolved from the english individual RKBA, it's obvious that scalia worked from a false premise, since the 8 representative british scholars all agree that the english RKBA was only an 'individual' right to belong to a militia, not an individual right for self defense etc..
Scalia misinterpreted, misused, & misrepresented the english RKBA -'have arms' decree, since it was really a militia based 'individual' right to bear arms in defense of the british crown.

When this british 'individual' right aspect is taken into consideration, it makes much of what colonials & late 1700 authors say, make more sense.

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