Reply #44: Wow

[TPaine7]

Not at all. I'm pointing out that the framers of the Second Amendment could have chosen to forbid government intervention in an individual's RKBA for personal use. There was ample precedent for this in the wording of the Declarations of Rights of Pennsylvania and Vermont. They chose not to do so.

They said that because a well regulated militia was necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The security of a free state is the reason the right should not be infringed. It is not the reason the right exists. The people have the right to keep and bear arms, the militia is only a reason not to infringe the right. There are other reasons not to infringe the right, among them the fact the government exists to secure rights. The Second Amendment does not exhaust the reasons to respect the people's right.

Your reasoning seems to be that because a right is *not* mentioned in the Bill of Rights it somehow automatically exists. The framers also omitted any mention of my inalienable right to pee in public. Does that somehow mean the government cannot prevent me from doing so?

My argument was that "omission" of a particular right from the Bill of Rights signifies nothing. That is all I was saying. Beyond that, the terminology "the people" always refers to rights that each individual is entitled to on an individual basis (and yes, even freedom of assembly is a right each individual is entitled to on an individual basis). So actually, they chose to do so, just not in language you recognize and approve.

No. An amendment cannot implicitly revoke part of the Constitution.

That has the ring of truth, but I cannot recall learning it from a legal authority. Can you cite a competent authority?

No. An amendment cannot implicitly revoke part of the Constitution. If the Fourteenth Amendment was intended to overturn the "well-regulated militia" clause, the framers needed to say so explicitly. Since nothing of the sort exists, one must assume that the ENTIRE Second Amendment is still in force, not just the latter half.

The "well regulated militia clause" need not be overturned. It simply says that a well regulated militia is necessary to the security of a free state. That is an observation, not a command. It can neither be obeyed nor disobeyed.

{Me:} And the case that has sometimes been made that the Second Amendment protects an individual right to join a constitutional militia is simply revisionism.

That case has "sometimes been made" by supreme court justices, and sometimes those justices were writing for the majority. (see United States v. Miller). The only revisionism is coming from the reactionary Roberts court in overturning settled law.

Please cite Miller to support your claim. If a person applies to join a state militia and is turned down, which passage of Miller should they cite to bring suit under the Second Amendment?

Nothing could be less clear. The fact that the writers used the same term of art as the Dred Scott decision in no way means that they were endorsing the exact same "privileges and immunities" enumerated in that decision. And even if that were the case, nowhere in the previous decision is the RKBA for personal use mentioned.

So according to you, they overturned Dred Scott by quoting it, but you have no idea what the term of art necessarily included when they did so?!! There is no logical relationship? "Nothing could be less clear." Really?

And it doesn't help you at all that the Framers explicitly listed the first eight Amendment of the Constitution and said that protecting them from states was part of their objective?

And then, to continue along the same lines of intellectual honesty, you claim that this is not a description of personal arms use:

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

So if a citizen of the state of Ohio enters the state of Illinois and travels to and fro at her whim--carrying arms wherever she goes--she can do so as part of the Ohio militia? On active duty? Is that your point? Amazing!

And notice that contrary to your theory, the Court based the right in state citizenship not membership in a militia, or in any other group for that matter.

State citizenship = militia membership => RKBA everywhere one goes on personal business all times of day and night. But of course the right is not personal, wink, wink.

It may not be rooted in reality, but it's growing on me.

The framers also wanted to keep the rights of citizenship from Native Americans and Chinese immigrants. Are we also to assume the Fourteenth Amendment supports that without actually saying so?

I don't know this history well. But given that Native Americans are US citizens, that would violate the explicit text of the Amendment, wouldn't it? And of course, naturalization is not a right. The children of immigrants of all races are protected by the explicit text of the Amendment.

If my source supports anything, it's the idea that whatever the RKBA means, it exists and is supported by the Fourteenth Amendment. Nothing is said about individual rights, personal use or the application of the 2nd Amendment's preamble.

You need to read your own source.