A 2nd Amendment Argument

[ThomWV]

You know, absolutely no one argues that at the time of the Revolution that the Founding Fathers were trying at any level to disarm the people. No one was trying back them to do away with guns, take them out of the hands of the people, stop them from being carried by anyone, or in any other way restrict their presence. To say such a thing would be to suggest that those good men were suggesting that the people should go unprotected into the wilderness which surrounded their frontier lives. It would be a silly argument to make and no evidence could be provided to support it.

So how can a person say now that the words written then did not protect the individuals right to the tools of self defense against not only the natural enemies they would be confronted with every day but also the contrived enemy of self-interested power? How equally preposterous that it might have been the intent of the founders to insure a well armed militarized extension of the state while concurrently reducing the ability of the people to contradict the misuse of its armaments and power. In short no good argument can be made for the collective right to bear arms in preference for the individual's right to do so.

[MannyGoldstein]

1. Do Individuals Have The Right To Bear Nuclear Weapons?

It's all a matter of degree.

We really should amend the Constitution to clarify.

[ThomWV]

2. Can you afford one?

The level at which a person might be armed is not the question. In fact if some sensible definition was wanted it would probably do as well as anything to say that "arms" for our purposes would mean any weapon that might be normally issued to or carried by an infantry soldier.

And by the way - there is no such thing as a "suitcase nuke".

[AlinPA]

6. Yes and it goes on and on, such as what about shoulder held missiles.

[Tejas]

10. thanks but NO thanks, taxes aren't high enough for you?

Who's going to pay for this overnight Constitutional amendment? Those that run around thinking they need only to click their heels together three times and an amendment happens...

;)

[hansberrym]

12. Do states have the right to keep nuclear weapons ?

The suprme court settled that question in US V. Miller and cited Aymette V. Tenn. No mention of canon or other field pieces there.

[Boomer 50]

21. No right to nukes

Because nukes, biologicals and chemicals have what is known as random fallout that cannot be controlled by the user. This does not apply to firearms, conventional explosives, etc.

[BOSSHOG]

3. My issue is purely semantics

Per the second amendment I have the right to bear arms for the purpose of defending the country. Its one easy to understand sentence. We should not move forward with never ending interpretations of what the founding fathers meant and intended but we should "redo" if you will, the amendment, to bring it into the 21st century. Those who interpret with gusto do so with purely political motivations. Its as if some groups are fearful of sitting down with the goal of modernizing the amendment based on input from all sides. Its so much easier to cross swords, at it were, with "interpretations." I am confident that feedback to this post will prove my point.

[ThomWV]

4. That is only half of what it says

You have the right to bear arms for the purpose of defending the country but it also says you have the right to bear arms for the prupose of defending yourself against the country. You must retain the power necessary to regulate that very same militia.

[BOSSHOG]

7. I do not

read that (ergo various interpretations.) I actually do not know what I would want the amendment to reflect per "rights" but I absolutely believe it should be interpretation proof.

Happy New Year to you and Your Family for a very healthy 2008.

[lazer47]

15. The fact that there is this much controversy about the 2nd

only goes to prove the point that the Founders new what they were doing, the 2nd Amendment is a right and guarantee,,, not a suggestion.

[jmg257]

17. It is not our role to "regulate" the Militia. WE ARE the Militia. And WE are to be well trained

(well regulated) by the States according to general guidlines handed down by Congress. We are however duty-bound to provide our own arms, again according to general guidlines. WE are to go through military evolutions often enough to earn the characteristics of a well regulated Militia. That way WE can be most effective at defending our liberties and freedoms.

[ThomWV]

24. I have always taken "well regulated" to mean

that it was the duty of the citizenry to not allow the militia to become lawless, to rampage, to work under a despot. That we, you and I, would always be more powerful than whatever militia the state might form so that we might keep it in order, or well regulated as one might say. The reason our ability to arm ourselves is not to be impeded is so that we might ward off an aggressive militia acting outside of the Constitution. I don't see how it could be any more plain.

[SteveM]

18. Actually, what "interpretations" by the founders do not recognize an individual right?

Seems to me that the "never ending interpretations of what the founding fathers meant and intended" ended some time ago; in fact, the Standard Model for constitutional scholars, historians, political scientists, etc., in their reading of the Second Amendment, is that 2A recognizes an individual right to keep and bear arms.

Note what Alan Dershowitz, ACLU national board member who is no friend of guns, has to say about "modernizing" the Second: "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard... They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like." -- 62 Tennessee Law Review, 759, 789, (1995).

What is your confidence about the feedback to this post and what points are proved? Do you now have "purely political motivations?"

By the way, Dershowitz has said on other occasions that if you don't support an individual's right to keep and bear arms, repeal the Second Amendment.

[jmg257]

19. No-per the 2nd amend the Militia is necessary, and YOUR right to KBA shall not be infringed {period}

That is why it is so easy to understand - because THAT is what it says.

As with any other right, that right can be suspended for cause via due process, but other then that, it is absolute. Enjoy that right as you see fit, as long as you don't violate the rights of others.

Within certain guidelines, as part of The Militia, it is also your duty to be armed.

[Benhurst]

5. The second Amendment argument is a poor one from an historical perspective.

The founding fathers, preparing to abandon a loose confederation of states for a federal union with a strong federal government, were attempting to prevent what they saw as the abuses of a central government under British rule. In the Second Amendment they were trying to guarantee the state militias would protect the citizens from an abusive federal government.

That said, a very good argument can still be made for the individual's right to bear arms for personal use in the founding fathers' never having considered or proposed such a ban.

Again, it's a matter of degree.

[ThomWV]

8. Exactly my point

Considering the times it would be absurd to entertain the notion that the Founding Fathers had any intention of restricting the ownership of arms at all.

I do not, however, accept your argument that the state militias were to protect the citizens from an abusive federal Government. The Federal Government had no forces with which to become abusive. The fear was that the militias themselves would become lawless and operate against the people under the rule of some despot - presumable a Governor gone awry - or confederation of them.

You also have to keep in mind the position of the southern states at the time and the news of the day. Just as the founders feared standing armys the states feared the loss of their militias. With well publicized slave uprisings taking place daily in the Caribbean a state like South Carolina with its 60% black population needed its militia to control the slaves. The militias would never received scant if any recognition in the amendment were it not for that.

[Benhurst]

9. The new federal government had no forces with which to become abusive?

No federal troops? No army? No navy? Washington wisely warned against large standing armies (how I wish his advice had been taken); but not categorically against federal forces.

The potential for the abuses such as those the founding fathers thought they had suffered at the hands of the Red Coats, made them leery of a strong Federal Government.

The founding fathers feared the growth of an abusive federal government and attempted to provide a balance as a hedge against such an eventuality. One could argue, from a Southern perspective, their fears were well-founded and proved true sixty some years later.

[hansberrym]

11. The concern at the time was not merely Federal vs. State power.

Madison starts off Federalist 46 reminding the "enemies of the constitutions" of their error.


Fed. 46

"The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."


Later Madison notes in a hypothetical, that the people of Europe living under tyrrany might "throw off their yokes with this aid alone" -meaning being armed but without subordinate governments to organize the resistance.


"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.



In Federalsit 28, Hamilton goes a step further and considers the situation in which the people would have to protect themselves from either the federal government or a state government in the case that no Federal government existed.



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

[Benhurst]

13. Modern history provides an ironic footnote to the dialog.

The Iraqi people were well-armed under Saddam Hussein. So much for guns as a protection against tyranny, at least in Iran.

And our Constitution and Bill of Rights have been shredded and even the ancient right of habeas corpus taken from us without so much as a peep from our well-armed citizenry.

[krispos42]

14. And we're even better-armed under George W. Bush

In fact, with fully a quarter of our ground forces (Army, National Guard, Marines, and reserves) in Iraq and at the end of a long logistical rope, it could be argued that the best time for using those arms to overthrow the government is right now.

But it's not going to happen, luckily. We're going to heal the problems that have been created by the anti-patriotic neocons politically, without any kind of civil war. I fully plan on dying in my bed without seeing that particular horror, thank you very much.

What was lacking was the effective leadership against the powers-that-be AND the will of the people to fight against those powers. Arms merely give the potential.

The Iraqis had the arms, the leadership, and the willpower after Desert Storm, and we promised to help them. Then we pulled the rug out from underneath them. Saddam dammed up the Tigris and Euphrades rivers and let the region starve while his surviving military forces attacked. With Baghdad secure, the rebellion in the south didn't have anyplace to go. No major cities to fight in, and only empty desert on either side of the rivers. So they were crushed.

[SteveM]

20. Iraq or Iran? What is your source about armed citizenry under Hussein?

The "peeps" you hear in this forum come from well-armed citizens who keep painful detail the abuses of Bush and the Far Right; not only habeas corpus, but the neutralization of posse comitatus and the introduction of the "No fly, no buy" legislation by Sen. Lautenberg (D-NJ) at the behest of AG Alberto Gonzalez.

Also take note of the East Algiers Militia which formed in the wake of Katrina and during the issuance of a gun confiscation fiat by New Orleans' police chief. They did more than "peep."

What is your point about not hearing a "peep?" What do you want to hear?

You should keep in mind that the foundation of the Second Amendment is individual self-defense; no guarantees were issued with the Second that government might succeed for a time in tyrannizing its citizens. I do observe that small quasi-civilian forces armed with light weapons and gerry-built explosives have managed to fight a superpower into a costly stalemate.

[jmg257]

16. Your point about the militia is wrong. They were NOT feared - they were US!

What was feared was that "bane of liberty" - a standing army. The armed Militia made up of the body of the people was the much-preferred alternative. The founders KNEW they needed a "military", so every step was taking to ensure THE PEOPLE would always be (more) effectively armed and trained so WE could function as the defenders of our liberties, and so limit the need for a large army.

The Militias of the several States were/are necessary - to "execute the laws, repel invasion and supress insurrection" - to guarantee the freedoms that were the whole purpose of forming the new govt. The right to arms of the people/militia was already secured by Article 1 Section 8 Clause 16; yet it could be seen that a usurption of power by the new govt could be used to violate an existing right - could be used to disarm the people & render the militia ineffective. The 2nd was added to make it even more explicit that THE Militia was required, that the right OF THE PEOPLE was secure, and to make sure it was personal ("the people").

[ThomWV]

25. So, simply put you don't support the either/or argument

You know the one, either it is a right reserved to the individual or it is a collective right to form an armed militia. It is better to understand that it is both. You and I have the individual right to be armed. Our state has the collective right to have an armed militia. I still hold that it is by our superior force of individuals making up an armed populace that we were to be able to put forth such regulations as were necessary to keep the militia in check, hence the term 'well regulated'. A militia is well regulated when it operates within the rule of law. Just because the militia was to be made up of our peers does not relieve us of the obligation to well regulate it. How could the greater we regulate it unless we the people were a force superior to whatever smaller portion of us constituted the militia?

[jmg257]

26. Well regulated is well disciplined well trained well functioning well organized. WE

WERE ALL the Militia - every able-bodied male aged +/-18-45 constituted their state's Militia. Duty was mandatory, unless due to religious & political exemption. The intent was that the people "out-gun" any Standing Army, NOT the Militia - which is US!

The 2nd recognizes the importance of the well armed well trained State Militias (constitutional "Militia of the several States") - in fact it says they are 'required', AND secures the PEOPLE's right to arms, primarily because we ARE that Militia.

The Congress (A1,S8,C16) was given the powers to provide the guidelines as to how the Militias would be well trained, organized and discplined (to make sure they were well regulated); and to provide guidelines on how they (the people) were to arm themselves for Militia service. This would ensure an effective Militia; because Congress was also given powers to provide for how parts of THE Militia would be called forth in the employ of the new govt to surpress insurrections, repel invasions, and execute the laws (A1,S8,C15) - pretty important role it is that we the Militia play!

These powers were formally of the States. The people recognized that a usurption of power by the new govt could be used to DISarm the people and so DISarm the Militia (that is what anti-gunners are trying to do when they lie about "intent" - they mistakenly try to use the "well regulated militia" declarative clause as a way of disarming the people). Further - the people MUST be armed, constitutionally it is our duty; if the feds don't meet their constitutional obligations to provide for THE Militias, the States must, and if the states don't, the people must (we are where those powers derive) OUR freedom depends on it!

I believe in both - in the individual right of the people to keep and bear arms, whether or not we are in the Militia. This right, as part of the right to self-defense, is inalienable, and NO power was given to Congress to restrict it, and plus the 2nd EXPLICITLY secures it. I also believe in the Militias' importance (the Constitutional ones, not the federal NG) and OUR role in it, because the recourse is a powerful Standing army, and the road to tyranny is always built on the ruins of the Militia (the disarmed people). WE the people have every right & necessity to the same small arms our army has.

The framers never put a timeline on tyranny, but we as a country seem right on schedule, especially if we allow pourselves to be disarmed

[ThomWV]

27. While I think you are slightly wrong we certainly agree nearly completely

Where I think you are slightly wrong is in thinking of the militias as a single unit of each state. Problem is there were plenty of private militias as well, under the control of some self proclaimed commanders. I also only count as militia those who served under arms, not every citizen capable of doing so. As an example it would be hard to consider Quakers or some similar religious faction to be members of the militia if they refused to bear arms. None the less their right to bear arms to repel whatever required repelling or to regulate whatever was in need of regulation was not to be infringed.

For whatever its worth it has recently become my opinion that the intent of the 2nd amendment was to insure the individual's right to arm them self in case it became necessary to use force to regulate a militia gone wrong, no more and no less.

Oh, I should say, in defense of your argument, that when I got to wondering how we got this right and spent the time to actually go read what little history about it is available I did find a number of people who tried to make a point that it may have been the intent of the FF to compel people to arm themselves - that they feared there were too few weapons in the hands of the common man. Who knows, right or wrong? I'm just sayin' I've seen the argument.

[LiberalFighter]

22. What was the basis for the Constitution?

Who authorized the delegates at the Constitutional Convention to create a Constitution?

What was the purpose of the Constitutional Convention?

What document did the Continental Congress operate under prior to the Constitution?

How much of the Articles of Confederation was the basis for the Constitution?


Creating a Constitution -- Some answers

Articles of Confederation

Article VI. No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; 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 filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

[jmg257]

23. And?...