The 2nd Amendment.

[Woolleybugger]

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason
Co-author of the Second Amendment during Virginia's Convention to Ratify the Constitution, 1788

Statements such as this one were common among all the state conventions debates in regards to ratifying the Constitution and the Bill of Rights. Mason was an anti-federalist that lost many of the arguments at the convention to Madison. It is critical to understanding that time to know that every man in the nation was in fact the first responder to any and all threats to himself, his family, his community, his state and ultimately his nation. There were no police forces in affect back then. There was not even a standing army. There was nothing but the individual and his weapon. The founders knew that states did indeed call up militias from time to time and that many of the former soldiers that fought against the British were still armed. Why would they agree to a form of government that did not protect the right of every man to defend his life, liberty and property in such times? Ratification of the constitution was critical to the federalists who championed a stronger national government as opposed by the anti-federalists who had many suspicions about the nature of a central government. The Bill of Rights was a critical selling point to the states that had held out ratifying it and once the Congress agreed upon ten individual rights, the last colonies ratified the Constitution and the nation was reformed. Anyone who argues that being armed was not a right demanded by almost everyone in the colonies is projecting today's values upon a far different world long since gone from this planet.

But what really was the essence of the threat to the colonists in 1789 at the time of ratification? The Northern States had largely annihilated the natives by this time either through disease, war or by attrition. The Southern States though had a very serious problem on their hands at the time. The white men and women that lived in the South were scared to death of slave rebellions. When the constitution was up for ratification by the state of Virginia, Mason and Paine argued passionately with Madison that if the federal government provided the only legally protected means of arming the people, then the Northern States could theoretically deny them arms in support of freeing the slaves at some later point in time. Madison thought long and hard about this argument and conceded when he wrote the 2nd amendment that provided the states or the people themselves the right to arm the citizenry via any means possible. This sealed the deal for the ratification of the constitution by Virginia. Remember though that this only pertained to a militia and that regulating this militia was still expected. States did indeed regulate arms and passed many laws pertaining to the weapons they expected potential militia members to own.

But let us agree with those who say being armed was a fundamental right granted to everyone (barring slaves of course) at the time of the ratification. Whether it was an individual right or a collective right, they did indeed expect every man to be armed or buy a weapon if needed. The key though is why the specific wording. They did not specify that each man had a right to defend oneself via the 2nd amendment for personal protection. No, they worded it in terms of being part of a well regulated militia. The right to bear arms is tied to being part of a militia, a state militia in most cases. That was indeed a very common sense approach to having a citizenry ready at a moments notice to become part of a militia either at the state or federal level to defend the nation from its enemies. It also did not take the power from the states in regards to maintaining a militia, arming it and keeping arms out of the hands of undesirables.

Decades pass and the 2nd amendment is largely ignored in the courts as the nation moves westward conquering hostile natives, keeping foreign powers at bay, controlling the vast number of slaves and giving citizens some power over the lawlessness of vast areas of the nation. At the same time, technology did not progress very fast at all in terms of improving upon the effectiveness of the weapons available to men of the Revolutionary War. The repeating rifle, the six gun and then the gattling gun were massive improvements upon the firepower of a hand held weapon but none of them were really threats to society by a rogue population hell bent on criminal activity. In fact, before the Civil War most men in the frontier were out gunned by bow and arrow carrying Plains Indians who could ride and shoot arrows faster than a man could load his musket. A modern weapon was a blessing to the new states by this time.

This of course changed once the slaves were freed and the nation came to terms with the possibility of former slaves becoming armed and possibly enacting revenge upon their former masters. The South became an armed camp once again as did many of the areas where former slaves fled for work after Emancipation. Immigration swelled, poverty and despair deepened for many as the economy went through one form of depression or recession after another creating massive unrest. Guns started to become the means for Americans to protect themselves from other Americans. The reasons for being armed had changed. We no longer feared the Indian, the slave, the French or the Spanish. Now we feared each other.

The idea that the 2nd amendment granted each man the right to fight an oppressive government was dealt a lasting blow when those that wished to fight the union did so and lost. Fighting the government became treason not patriotism. This argument was never part of the debates of the Bill of Rights. It is essentially an argument for revolution against your own government. There is no right to rebel in the constitution via armed means.

When the nation finally became pacified in the late 1800s, the need for arms in rural America was for personal protection against animals, for subsistence hunting and in the cities for protection against growing crime. It was not until the advent of organized crime in the 1920s and 30s along with surprising advances in the power of weapons that Congress finally had to regulate guns.

Scholars of constitutional law apparently did not think much on the 2nd amendment for a long period of time. Most of what passed for gun ownership for almost 200 years was traditional and based upon common sense notions of self-protection and readiness to participate in war. I can think of very few cases before the Supreme Court regarding the right to bear arms up until the modern era. The modern era ushered in two significant developments that brought the right to bear arms back to the forefront of politics. One was the growing power of weapons and the mismatched firepower between the criminal and the police. The tommy gun made criminals more powerful than the government agents. Guns needed to be regulated again in order to provide for the safety of the nation. The other large event was the growing populations in urban areas that resulted in more crime. Fear of crime became the driving force behind urban ownership of guns. Self-protection in the vast ghettos of the huge new cities was a huge selling point for the gun manufacturers. People needed guns to protect them from other people with guns. Americans killing Americans was now the largest threat to the individual.

The debates about the 2nd amendment prove to me that the main driving force behind interpreting the constitution should be what is necessary for us to live in the modern era, not a by gone era. The main thrust of the resistance against gun regulation and control is that the people have the right to self-protection from other Americans. This argument was not the reason the 2nd was created, it was a secondary argument to the need for an armed militia. The militia is now the National Guard. We have vast police forces and the FBI. There is no need for men to come to the National Guard equipped with their own weapons. We provide them with new more powerful and very regulated weapons once they join.

The key question now is one of regulation. Does our legacy of an armed citizenry compel us to let any and all weapons be owned by anyone without proper regulation? The answer to that is obvious. We are a different nation now and the amendment that once protected us is now the main source of death and mayhem for the ordinary citizen. There is nothing unconstitutional about regulating weapons. Let us pass sensible regulations that the people create through their elected officials that insure the peace and safety of the nation. If your argument is for more powerful weapons in the hands of everyone, then make that argument in the political arena and watch the results. I think the consensus opinion is that we now have that openly armed nation as a laboratory for checking this proposition. We kill each other at a greater rate than any modern nation. We also have the loosest gun regulations. It is time once again for the nation to move forward.

 

[Havelock]

Hi Woolley. Good post; one worthy of some discussion. Maybe this'll help spark some...

First of all, I think it's plain enough to anyone who reads the amendment and is at all familiar with the circumstances of its passage that the much-ballyhooed “original intent” of the 2nd Amendment was threefold: one, it was intended to safeguard a mechanism for national defense (a “well-regulated militia”); two, it was intended to appease those fearful at the time of a too-powerful federal government by guaranteeing the continued existence of state militias; three, it was intended to secure the ability of citizens to defend their property and their liberty.

Contained in intent number three was the general but ill-defined notion that an armed citizenry could serve to counter government oppression. At the time that was neither surprising nor totally unreasonable. Most of these folks had fairly recently taken part in a successful rebellion in which citizen militias played a critical role, after all.

Of course that was then. Lest we forget, most if not all of the authors of our constitution didn't see any need for a permanent standing federal army. They saw that as a threat to state sovereignty and individual liberty too. And yet I don't hear any of our self-proclaimed champions of original intent or strict constructionism or what-have-you suggesting that we disband the military and defend ourselves as necessary with National Guard Units, although no one can seriously dispute that such a setup would be much more in keeping with our founders' original vision. On the contrary, we hear most of those folks talking about proper distinctions between personal arms (any gun a person can carry, apparently, with the possible exception of fully automatic weapons) and weapons of war (everything else, I guess), even though the authors of the 2nd Amendment made no such distinction in their text and in fact wouldn't have had cause to recognize any such distinction at the time the amendment was written.

As you say, Woolley, times have changed. Now all but a relative handful of kooky absolutists would agree that the government has some proper role in regulating what arms are available to us as citizens and what constitutes responsible ownership and handling of those arms. And the only real purpose of the 2nd Amendment these days is to secure citizens' rights to defense of person and property; the changing times have for all practical purposes obviated the other purposes envisioned by the original signers of the Constitution. So really, at this point we should be debating two things: one, the kinds of arms that should be available to us as citizens for purpose of self-defense and sport; and two, the kinds of regulations that we should have on the ownership and handling of those arms. I think we agree on that, you and I. And that debate shouldn't be derailed by irrelevancies, eh?

With that in mind, one talking point that really has no proper place in that debate is the wacky notion that we the people need to be well armed to keep government tyranny at bay. Yes, the authors of the Constitution probably had that notion somewhere in their minds when the penned the 2nd Amendment. So what? With all due respect to wannabe freedom fighters, successful rebels these days need access to true military hardware, and successful rebels get it either from outside sources or from military personnel who go over to the rebel cause. Anyone who seriously believes he or she might have to fight off Federal troops one day ought to be fighting tooth and nail against the significant consolidation of National Guard weapons depots that has taken place in the last decade or two instead of worrying about possible restrictions on quasi-assault rifles and high-capacity magazines.

And for anyone wanting to stockpile an arsenal in preparation for that right-around-the-corner race ware/invasion/social collapse/zombie apocalypse, well, too bad. Nothing in the Constitution necessarily guarantees you an inviolable right to live out your paranoid fantasies at whatever cost to society you feel is acceptable.

And speaking of inviolable rights, I'll wrap this up by saying that while there might a few true thoughtful, consistent, libertarian types out there who strongly believe in maximal liberty for all, most of the folks I hear self-righteously droning on about securing inviolable rights only seem to care about their right to do whatever it is they want to do. They don't really give a flying fig about basic rights in general if they're not affected and in fact are more than happy to sacrifice others' rights for what they perceive as the common good when it suits their fancy. Those folks should just shut up about their principled defense of sacred rights and talk about why they should be allowed to own and operate whatever weapon they have the means to acquire, or whatever it is that tickles their fancy.

Cheers.

 

[Woolleybugger]

You and I have always come down on the same side of most issues. Your post reflects my views quite well. In Heller, Scalia said that banning handguns makes it impossible or very difficult for individuals to arm themselves for self-protection. I do not think the ban included rifles or shotguns which are both perfectly suited to self-defense. In essence, what Heller tells us is that Scalia objected to the ban of a weapon of his choice. Using this logic any ban on any weapon could potentially be verboten by Scalia since he did not define exactly what is necessary for self-defense and who the threat was justifying the ownership of a handgun. If there had not been a ban on tommy guns, would Scalia have insisted that they be legal since the population had tommy guns? His logic would have demanded it. But tommy guns are banned so they pose no threat. I guess the entire argument then becomes one of controlling weapons before they are circulated for once they are in play, they form a threat warranting a defensive position by gun owners. It is a circular argument that most civilized nations refuse to accept as justification for an arms race.

 

[Havelock]

You and I have always come down on the same side of most issues. Your post reflects my views quite well. In Heller, Scalia said that banning handguns makes it impossible or very difficult for individuals to arm themselves for self-protection. I do not think the ban included rifles or shotguns which are both perfectly suited to self-defense. In essence, what Heller tells us is that Scalia objected to the ban of a weapon of his choice. Using this logic any ban on any weapon could potentially be verboten by Scalia since he did not define exactly what is necessary for self-defense and who the threat was justifying the ownership of a handgun. If there had not been a ban on tommy guns, would Scalia have insisted that they be legal since the population had tommy guns? His logic would have demanded it. But tommy guns are banned so they pose no threat. I guess the entire argument then becomes one of controlling weapons before they are circulated for once they are in play, they form a threat warranting a defensive position by gun owners. It is a circular argument that most civilized nations refuse to accept as justification for an arms race.

Ah yes, good old Scalia. Heller is a perfect example of his style of jurisprudence. Identify the “right” outcome, justify it by cobbling together a paper trail of precedent and concurring opinion no matter how obscure, proclaim your opinion to be the plain and incontrovertible reading of the law as intended by the founders and supported by tradition, and make sure that any apparent contradictions in your sweeping proclamations are muted by judicial fiat.

For example, I especially like the part of the opinion that says while the 2nd Amendment clearly reflects the founders intent that private citizens should have the right to own handguns for personal protection because the founders clearly intended that citizens be allowed to own weapons in common use, nothing in the ruling should be construed to prohibit common sense restrictions on the ownership of dangerous and unusual weapons. Of course, a ten-shot semiautomatic pistol would have been highly unusual and no doubt considered highly dangerous at the time the amendment passed, to say the least.

I suppose pointing that out makes us morally and philosophically bankrupt perverters of democracy who're woefully ignorant of history and legal precedent and who don't believe that the Constitution has any particular meaning at all other than what we decide is expedient in service to the collective.

Anyway, one wonders how Scalia's principle might be applied in the future. If I were to invent some unfailing lethal, perfectly concealable and untraceable weapon, I guess it'd be in my interest to get as many of them in the hands of as many people as possible as quickly as possible so as to make any extraordinary restrictions on the owning or use of my weapon unconstitutional.

Well sir, that's some sound policy there, sure as shootin'!

 

[Woolleybugger]

What is interesting in this whole spectacle is the reaction from foreigners. Piers Morgan is a great example of the exasperation felt in other countries at our collective insanity and lack of rational thinking. To them, this gun fetish is a mental disorder or a societal anomaly that could end up destroying our nation. They see it so clearly that there is considerable disbelief that a nation like ours could still harbor desires and wants that may have been vitally important 220 years ago but are now quaint but deadly fetishes that are in a way suicidal. I debated a gun advocate at length this week in another blog. There was no quarter given in regards to regulating or controlling guns. Out came the arguments of a frontiers men facing hostiles. Scalia went to great pains to completely discount the first phrase of the 2nd amendment as it it did not exist. It is issues like this that make me consider parts of the constitution to be inadequate for the modern era. We are stuck with it like an anchor while the rest of the civilized world moves along, we stay stuck in the past. It is like a football coach that only uses his playbook from his winning season in 1928 while wondering why on earth he keeps losing.

 

[Havelock]

What is interesting in this whole spectacle is the reaction from foreigners. Piers Morgan is a great example of the exasperation felt in other countries at our collective insanity and lack of rational thinking. To them, this gun fetish is a mental disorder or a societal anomaly that could end up destroying our nation. They see it so clearly that there is considerable disbelief that a nation like ours could still harbor desires and wants that may have been vitally important 220 years ago but are now quaint but deadly fetishes that are in a way suicidal. I debated a gun advocate at length this week in another blog. There was no quarter given in regards to regulating or controlling guns. Out came the arguments of a frontiers men facing hostiles. Scalia went to great pains to completely discount the first phrase of the 2nd amendment as it it did not exist. It is issues like this that make me consider parts of the constitution to be inadequate for the modern era. We are stuck with it like an anchor while the rest of the civilized world moves along, we stay stuck in the past. It is like a football coach that only uses his playbook from his winning season in 1928 while wondering why on earth he keeps losing.

Like a lot of other political hot button issues such as climate change or abortion, I think a good bit of the bickering over gun regulation is because “the cause” has become a stand-in for other, larger and more amorphous fears and concerns. That's not to denigrate hobbyists, collectors, and so on who might have genuine – though I might argue misplaced – concerns over what they would see as undue restrictions on their activities. For the most part those folks aren't the “I have a God-given right!” and “From my cold, dead hands!”, frothing-at-the-mouth absolutists who seem never to want to be more than 15 seconds away from being able to draw down should they feel the need. Let's face it, there's something more going on with a lot of the folks who see any additional degree of control as a life or death issue. Motor vehicle registration is fine but registering a lethal weapon is an absolutely unacceptable sacrifice of sacred civil liberties? C'mon...

But yes, I'm sure our national preoccupation with unfettered access to high-powered weaponry does look odd to most Europeans. We all have our peculiar national neuroses, I guess. It really seems as if we ought to be able to strip away our various hangups and put together a fairly good model for what works well here and there around the world. Someday, maybe...

In the meantime, I wouldn't say that any particular part of our Constitution is necessarily outdated or dangerously anachronistic. Well, maybe the Electoral College... “Inadequate” is a fair enough word. I too wish we were a little bolder about clarifying passages than need clarification and amending the thing to meet changing needs and realities. Too many people approach Constitutional interpretation as if it were scriptural exegesis.

Cheers

 

[trapdoor]

Like a lot of other political hot button issues such as climate change or abortion, I think a good bit of the bickering over gun regulation is because “the cause” has become a stand-in for other, larger and more amorphous fears and concerns. That's not to denigrate hobbyists, collectors, and so on who might have genuine – though I might argue misplaced – concerns over what they would see as undue restrictions on their activities. For the most part those folks aren't the “I have a God-given right!” and “From my cold, dead hands!”, frothing-at-the-mouth absolutists who seem never to want to be more than 15 seconds away from being able to draw down should they feel the need. Let's face it, there's something more going on with a lot of the folks who see any additional degree of control as a life or death issue. Motor vehicle registration is fine but registering a lethal weapon is an absolutely unacceptable sacrifice of sacred civil liberties? C'mon...

I suppose that I'm one of those collectors and hobbyists to which you refer -- and yet I side firmly with those you describe as frothing-at-the-mouth types. Why? Why would an otherwise sensible hobbyist oppose registration, just for example, in the same mode as automobiles? Simple -- no one is calling for an outright ban on automobiles. Barbara Feinstein has, in the past, called for an outright ban on firearms, and other sitting legislators have called for complete bans of specific types of firearms. Right now, today, such a ban is an impossibility, even if the legislature could pass it, for the simple reason that the government doesn't know where the weapons are located. Registration would change that, and the rights could then be eroded further, as happened to British gun owners throughout the 20th century. Even sensible gun owners have seen this incremental approach play out in first world countries (Australia and Canada as object examples alongside the UK), and we feel compelled to fight each increment.

In the meantime, I wouldn't say that any particular part of our Constitution is necessarily outdated or dangerously anachronistic. Well, maybe the Electoral College... “Inadequate” is a fair enough word. I too wish we were a little bolder about clarifying passages than need clarification and amending the thing to meet changing needs and realities. Too many people approach Constitutional interpretation as if it were scriptural exegesis.

If the Constitution is in any way outmoded or anachronistic, it provides a means for change to adapt to changing requirements -- via the amendment process.[/quote]

 

[Havelock]

I suppose that I'm one of those collectors and hobbyists to which you refer -- and yet I side firmly with those you describe as frothing-at-the-mouth types. Why? Why would an otherwise sensible hobbyist oppose registration, just for example, in the same mode as automobiles? Simple -- no one is calling for an outright ban on automobiles. Barbara Feinstein has, in the past, called for an outright ban on firearms, and other sitting legislators have called for complete bans of specific types of firearms. Right now, today, such a ban is an impossibility, even if the legislature could pass it, for the simple reason that the government doesn't know where the weapons are located. Registration would change that, and the rights could then be eroded further, as happened to British gun owners throughout the 20th century. Even sensible gun owners have seen this incremental approach play out in first world countries (Australia and Canada as object examples alongside the UK), and we feel compelled to fight each increment.

I have to say – and I'm not the only one to say it – I find your response, this basic “we dare not let the camel's nose under the tent” response, kind of baffling. Among other things, it strikes me as remarkably politically tone deaf. Arguments by analogy are usually flawed, of course. But to continue a theme, what you're saying is kind of like a car collector saying that because some folks have said they want to ban the internal combustion engine and some other countries have made it prohibitively expensive to own and operate cars with large-displacement engines, you have to insist that automobile pollution, safety, and mileage standards be set at, say, 1968 levels for everyone and never allowed to change because otherwise you might someday lose your ability to drive your 1967 GTO on public roads and you really enjoy doing that. It's a response that seems both unrealistic, self-centered, antisocial, and disproportionate.

Just for fun, let's take a look at the gun laws in that soul-crushing, liberty-snuffing hell hole of heavy-handed nanny-statism, the U.K. It's widely touted as the dark epitome of a gun-control regime that must never be allowed to happen here, right? Well, as I understand it, in the U.K. it's generally illegal to own a hand gun (other than muzzle-loading hand guns), and any kind of semi-automatic long gun. Bolt-action rifles and shotguns are acceptable, but must be licensed and registered, background checks are required before a license is granted, “good cause” has to be demonstrated in order to obtain a license, and so on.

Just to be clear, I'm not generally in favor of banning any particular type of gun. I think there are probably better ways to accomplish the goal of increased public safety and many of those mechanisms have been discussed in other threads. Uniform national standards for registration, mandatory background checks for all transactions, mandatory training before a license is granted, periodic re-certification for ownership, significant penalties for illegal transactions and negligent use or handling, these are all standards that seem reasonable to me, at least in principle. Put those sorts of controls in place and I'd even be willing to talk about lifting some of the restrictions on fully automatic weapons. So I wouldn't necessarily endorse the U.K. approach to gun control.

That said, is life as a gun aficionado so unbearably bleak in the U.K.? Gun ownership as such isn't illegal; hunters still hunt, target shooters still get to target shoot, and it's hard to argue that a shotgun won't do very well for home defense. That state hasn't devolved into a totalitarian dictatorship or surrendered its sovereignty to the U.N. or the E.U. It's enough to make the fears of absolutists seem a wee bit overblown to anyone not already in their camp. Hence, politically tone deaf...

And another thing... As Woolleybugger pointed out earlier in this thread, it's a bit of a historical accident that fully automatic guns are so heavily restricted here and now compared to other types of guns. If we hadn't instituted Prohibition when we did, it's entirely possible that we'd be talking about banning submachine guns and fully automatic assault rifles now instead of semi-automatic versions. If that were the case, it's hard to believe that we wouldn't be hearing the same complaints and fears about possible bans. And yet, thanks to the fact that we did effectively control such weapons decades ago, for the most part everyone now seems to agree that it's good that we did so and that a person can be happy and fulfilled as a gun enthusiast without easy access to fully automatic weapons. So where's the line that simply cannot be crossed lest life become unbearable for the hunter/hobbyist? How should we factor public safety into the equation? Public sentiment...? Public concerns...? We should take a hard look at the best evidence we have, shouldn't we?

The implicit argument you (and by “you” I'm referring generally to those opposed to any greater degree of gun control) are making is that any possible benefit from further gun control measures is likely if not certain to be outweighed by the ways in which those measures would prevent or complicate your enjoyment of your gun-related activities. That's it; that's the bottom line. It's possible to dress that argument up and it's possible to try and disguise it, but there's no way around it.

Now, that basic argument is not necessarily wrong or bad or a loser politically. But if one wants to make it and win it, it has to be addressed head on. Another analogy: offering up anecdotes about people who were saved because they were packing heat to argue against gun control is like talking about folks who were saved in car accidents because they weren't wearing seat belts. It's certainly true that sometimes people are saved by anomalous outcomes, but the statistics regarding what does and doesn't contribute to public safety are clear – and intuitively logical to most folks. Having a gun in your home on average makes you less safe, not more. And there's at least decent evidence from other countries that comprehensive gun control measures really can reduce the rates of gun violence. The experience in Australia is a good example. One can argue about the cost/benefit ratio of other countries' experiences, I suppose. But the statistical data at home and abroad have to be dealt with directly if one wishes to win the basic argument.

Similarly, talking about people being killed by hammers or rocks or mosquito bites isn't going to convince anyone who isn't already convinced that further gun control is unnecessary or likely to be ineffective. Yes, a killer may kill regardless. But all things being equal , that potential killer is more likely to kill with a gun than without and more likely to kill more people with a high-capacity, high-rate-of-fire gun than with a less-capable gun. Again, this is intuitively obvious and ignoring or downplaying the facts isn't going to win the argument. Not for long...

Like it or not, what a lot of folks who aren't already convinced hear when these sorts of talking points are trotted out is, “Look, people die all the time. So what're a few more deaths here or there? A relative handful of deaths, even if they occur in grisly massacres, is just the price that everyone has to pay so that I can continue to do what I want to do the way I want to do it. I say it's a fair price.” That's not a winner in the face of a growing body count, is it?

Cheers.

 

[Abatis]

But let us agree with those who say being armed was a fundamental right granted to everyone (barring slaves of course) at the time of the ratification.

The right was not granted to anyone, nor was the right given or created or established by the 2nd Amendment. The right to be armed for ALL lawful purposes was, at the time of the ratification, considered a fully retained right with no aspect of it surrendered to the care, control or direction of government.

The key though is why the specific wording. They did not specify that each man had a right to defend oneself via the 2nd amendment for personal protection. No, they worded it in terms of being part of a well regulated militia. The right to bear arms is tied to being part of a militia, a state militia in most cases.

Since no aspect of the right to arms was ever surrendered to the care, control or direction of government and the right in no manner depends on the 2nd Amendment to exist, it is nonsensical to think that the right is "tied to being part of the militia".

It also did not take the power from the states in regards to maintaining a militia, arming it . . .

But under your theory it would.

You are expanding federal control over the militia by compelling states to abide by your 2nd Amendment's federal directives as to who are the accepted arms bearers and under what conditions they may be armed (and disarmed by federal mandate).

This is an incredibly dangerous theory on multiple levels.

You are saying that Art I, §8, cl. 16 Congressional power to govern "such part of [state militia] as may be employed in the service of the United States" is moot because the purpose of the 2nd Amendment was to further direct militia activity by granting to Congress an expanded but nebulous, nondescript power to govern ALL the militias in ALL the states ALL the time.

The most dangerous part is that you extend this control to the people not enrolled in their state's militia AKA, private citizens. Under Art I, §8, cl. 16 the people not enrolled in their state's militia are twice removed from Congressional "governing" authority (1, not enrolled in a state militia and 2, their state militia having no part in service to the nation -- Expressio unius est exclusio alterius .

You seek to use this federal authority to exclude the mass of citizens not meeting your criteria of being, "tied to being part of [whatever Congress believes the] the militia [to be]" from exercising the right to arms. You seem oblivious that these citizens are a specific protected class possessing and using protected arms for non-militia uses protected by many state constitutions. What is their status?

Fighting the government became treason not patriotism. This argument was never part of the debates of the Bill of Rights. It is essentially an argument for revolution against your own government. There is no right to rebel in the constitution via armed means.

I'm not going to get into the right of rebellion with you right now; I'd rather address the bigger flaw in your statement.

I have no idea if you have actually read the Bill of Rights ratification debates but one always needs to begin said examination from the foundational principle that the Constitution was the 'bill of powers' and the specific enumerations did not include the interests covered in the Bill of Rights. One really shouldn't expect a bill of powers nor a bill of rights to explain to them what rights are or their scope except indirectly. For instance, one could examine the body of the Constitution for a specific power to impact a certain thing and finding no power, safely assume that such a "thing" is a right.

It wasn't for the framers of the Bill of Rights to debate what rights "were" . . . to them rights were simply "exceptions of powers never granted" and were innumerable as they were the "great residuum", of everything not surrendered to government:

_______________________

"It has been said by way of objection to a bill of rights, . . . that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. . . . It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government." -- Madison's Address on the Necessity of Amendments to the Constitution, 8 June 1789

​

_______________________
​

So, according to your position, how was the right to arms taken out of the "hands of the people" and thrown into the hands of government by the 2nd Amendment if that thought was precisely argued against?

It also did not take the power from the states in regards to . . . keeping arms out of the hands of undesirables.

You are kidding right? Are you purposely ignoring Reconstruction? The federal constitutional right of Freedmen to keep and bear privately held arms for protection as secured by the 2nd Amendment was deemed superior to any "right" of states to organize and direct the actions of their oppressive state militias.

I guess it all depends on what one's definition of "undesirables" is.

The rest and more later . . .

 

[Abatis]

Scholars of constitutional law apparently did not think much on the 2nd amendment for a long period of time.

Are you saying that there are no treatises to refer to or you don't know of any that speak to the right to arms and the 2nd Amendment?

If you would like some suggestions I would say start with the giants of the 1800's, Tucker, Story, Rawle and Cooley.

Here's a quick study guide with them and some other sources -- LINK

I can think of very few cases before the Supreme Court regarding the right to bear arms up until the modern era.

And what did they say about the right to arms and the 2nd Amendment?

With that dismissive statement it seems to me that either you feel those cases are of no importance or you would rather ignore them; which is it?

The other large event was the growing populations in urban areas that resulted in more crime.

Yeah, those "undesirables" again . . . While lawmakers can't be so blunt as before (i.e., "no freedman, free negro or mulatto, . . . shall keep or carry fire-arms of any kind,"), lawmakers learned in the 60's that you could be geographically specific (wink, wink) and delude yourself into believing you are keeping those "undesirable" untrustworthy and suspect urban po'folks disarmed . . .

The debates about the 2nd amendment prove to me that the main driving force behind interpreting the constitution should be what is necessary for us to live in the modern era, not a by gone era.

Don't know what "debates" you are listening to or engaging in but the Supreme Court disagrees with "them" and has done so in a very consistent manner for going on 140 years.

The main thrust of the resistance against gun regulation and control is that the people have the right to self-protection from other Americans. This argument was not the reason the 2nd was created, it was a secondary argument to the need for an armed militia.

And again, since the right is not granted, given, created or established by the Constitution, "interpreting" words UPON WHICH THE RIGHT DOES NOT IN ANY MANNER DEPEND into creating conditions and qualifications to exercise that retained right is preposterous, absurd and illegitimate.

The militia is now the National Guard.

Yeah, kindasorta how a Hellgrammite is the same as a Dobsonfly . . .

We have vast police forces and the FBI.

That are not in any manner responsible for the safety of any citizen. It is after all, " . . .a fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." -- Warren v. District of Columbia, 444 A.2d 1, 6 (D.C. App. 1981)

There is no need for men to come to the National Guard equipped with their own weapons. We provide them with new more powerful and very regulated weapons once they join.

Is that intended as an argument in support of your position?

Simple question, was the federalization of the state militias and their complete absorption into the National Guard forces and total subordination to federal authority a violation of the 2nd Amendment?

If your answer is yes, how many states claimed the 2nd to repel this federal overstepping of authority?

If it was not a violation of the 2nd, how does that fit into your theory and why do you think the dissolution / federal absorption of state militias supports your position?

The key question now is one of regulation. Does our legacy of an armed citizenry compel us to let any and all weapons be owned by anyone without proper regulation?

By what authority can Congress 'regulate" the actions of private citizens or the possession or use of their personal arms? Please cite the specific Article, Section and clause.

The answer to that is obvious. We are a different nation now and the amendment that once protected us is now the main source of death and mayhem for the ordinary citizen.

The failure of the state and federal governments to control criminals is not a constitutional crisis or the fault of the Constitution (unless you want to also rework the 4th, 5th, 6th and 8th Amendments too --- you might be taken a bit more seriously if there was any consistency in your argument (and by "more seriously" I mean a more serious threat to liberty than you are now with your infatuation with attacking just the 2nd Amendment).

There is nothing unconstitutional about regulating weapons.

You have failed in making that argument.

Let us pass sensible regulations that the people create through their elected officials that insure the peace and safety of the nation.

I will never, ever, ever trust anyone who needs to make the absurd arguments you have made above (read that as lying to me) to support your agenda to enact "sensible' regulations. if only your side could be honest about the Constitution and recognize it for what it is and what it does (and what it doesn't do) maybe we will give you a moment's attention and not slam the door in your face.

If your argument is for more powerful weapons in the hands of everyone, then make that argument in the political arena and watch the results.

Read my sig and weep for that is the legal reality which is superior to the political whims of a population (even a majority) of constitutionally ignorant leftists.

 

[Abatis]

we hear most of those folks talking about proper distinctions between personal arms (any gun a person can carry, apparently, with the possible exception of fully automatic weapons) and weapons of war (everything else, I guess), even though the authors of the 2nd Amendment made no such distinction in their text and in fact wouldn't have had cause to recognize any such distinction at the time the amendment was written.

But we have the fundamental principles to guide us. It is a foundational principle that all power emanates from the people. We the People established the federal government by surrendering powers via a contract and that structuring and specific enumeration limits the extent of the federal government.

The weapons of warfare like rockets and missiles and fighter jets and NBC WMD's are legitimately under the control of the federal government because We the People have surrendered the control of those types of arms to government through the war powers.

In Article I, § 8: the Constitution states:

Congress shall have the power:
11. To declare war, grant letters of marque and reprisal,. . .
12. To raise and support armies, . . .
13. To provide and maintain a navy:
14. To make rules for the government and regulation of the land and naval forces:​

The powers granted to the federal government preempt other entities acting in similar fashion, i.e., states or the people printing their own currency or raising and supporting their own army or entering into treaties with foreign nations . . . Laws restricting people from doing those things are not violations of the freedom of press or assembly or the right to keep and bear arms because we have surrendered any claim of those things as "rights" (exceptions of powers not granted).

Interestingly, this principle is actually applied to private citizens and weapons of war in the Constitution in clause 11 above and remains true and is applicable today.

The most devastating weapon of the time (Man o' War's) were owned by private citizens (Privateer's) and after the War, through the Constitution, power / control over those weapons was granted to Congress. Private citizens could not maintain or sail these ships without the permission of Congress (receiving a letter of marque and reprisal).

The same principle allowing government to place restrictions on citizens owning / using those weapons of war can be applied to restrictions over citizens owning weapons of modern open / indiscriminate warfare.

When considering this (and other questions of rights) it is important to remain tethered to the fundamentals:

The interests we have conferred to government we can not claim as a right.
Those interests that we have not surrendered but fully retained, the government cannot claim as a power.

​

​

So really, at this point we should be debating two things: one, the kinds of arms that should be available to us as citizens for purpose of self-defense and sport; and two, the kinds of regulations that we should have on the ownership and handling of those arms. I think we agree on that, you and I. And that debate shouldn't be derailed by irrelevancies, eh?

Like what the government is actually allowed to do under the Constitution?

With that in mind, one talking point that really has no proper place in that debate is the wacky notion that we the people need to be well armed to keep government tyranny at bay. Yes, the authors of the Constitution probably had that notion somewhere in their minds when the penned the 2nd Amendment. So what? With all due respect to wannabe freedom fighters, successful rebels these days need access to true military hardware,

The 2nd Amendment is not a provision mandating tactical equivalency. It only is intended to keep the original ratios of numerical superiority the framers embraced and recognized as "securing the free state".

The framers stated in 1788 that the largest standing army that could be maintained in the US would, at most, amount to 1% of the total population. These government forces would be outnumbered ("opposed" was the word James Madison used) by "citizens with arms in their hands" by a ratio of 17 to 1.

In modern times that superiority has grown a bit, it now stands at 25 armed citizens to one soldier (2.9 million active duty and reserve military vs 75 million "citizens with arms in their hands" in a nation of 311 million "total souls".

While the framers did not envision every person being armed they certainly desired a significant percentage to be properly situated with small arms to resist with violence the standing army of a government of usurpers.

That ratio is the only condition they intended to preserve with the enactment of the 2nd Amendment, for that mass of armed, civic minded citizens would allow the civil authorities to organize militia when necessary, calling out the farmers, butchers, bakers and candlestick makers of the community and have them muster with an appropriate arm supplied by themselves and a couple days provisions.

Just to address the tactical for a moment, it is worthy of noting that at the height of the resistance, estimates of the number of Iraqi insurgents ranged between 8000-20,000 (US) up to 40,000 (Iraqi intelligence). With 160,000 troops in country our guys enjoyed at worst a 4 to 1 advantage and at best a 20 to 1 advantage. And in the opinion of many we were in a quagmire and losing.

Imagine if there were 2.8 million insurgents (Madison's 17-1 ratio) and many of them were very familiar with American heavy weapon platforms and endeavored to seize and offensively use those weapons instead of just blowing themselves up?

Nothing in the Constitution necessarily guarantees you an inviolable right to live out your paranoid fantasies at whatever cost to society you feel is acceptable.

Huh?

Whatever the hell that means I'll just say that there is certainly no right for you to "feel safe" (or actually be safe).

 

[Abatis]

For example, I especially like the part of the opinion that says while the 2nd Amendment clearly reflects the founders intent that private citizens should have the right to own handguns for personal protection because the founders clearly intended that citizens be allowed to own weapons in common use, nothing in the ruling should be construed to prohibit common sense restrictions on the ownership of dangerous and unusual weapons.

Two mistakes.

You are reading Heller in a vacuum without any understanding of what came before or what the effect of Heller actually was or what Scalia knew would soon follow.

I suppose pointing that out makes us morally and philosophically bankrupt perverters of democracy who're woefully ignorant of history and legal precedent and who don't believe that the Constitution has any particular meaning at all other than what we decide is expedient in service to the collective.

Pretty much . . .

Anyway, one wonders how Scalia's principle might be applied in the future. If I were to invent some unfailing lethal, perfectly concealable and untraceable weapon, I guess it'd be in my interest to get as many of them in the hands of as many people as possible as quickly as possible so as to make any extraordinary restrictions on the owning or use of my weapon unconstitutional.

This effect of binding future government ability to control a modern / future arm simply by the combination of "in common use" and the arm being of the type that is, "part of the ordinary military equipment or that its use could contribute to the common defense" is not novel. It was recognized as reality in 1942 when the First Circuit explained what SCOTUS held in US v Miller, 307 US 174 (1939). (if only to use the hyperbolic analysis to justify dismissing and ignoring the Supreme Court so it could invent /insert the "militia right" into the federal court system)

__________________

" . . . if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . ."

Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942)
​

__________________
​

 

[Havelock]

But we have the fundamental principles to guide us. It is a foundational principle that all power emanates from the people. We the People established the federal government by surrendering powers via a contract and that structuring and specific enumeration limits the extent of the federal government.

The weapons of warfare like rockets and missiles and fighter jets and NBC WMD's are legitimately under the control of the federal government because We the People have surrendered the control of those types of arms to government through the war powers.

In Article I, § 8: the Constitution states:

Congress shall have the power:
11. To declare war, grant letters of marque and reprisal,. . .
12. To raise and support armies, . . .
13. To provide and maintain a navy:
14. To make rules for the government and regulation of the land and naval forces:​

The powers granted to the federal government preempt other entities acting in similar fashion, i.e., states or the people printing their own currency or raising and supporting their own army or entering into treaties with foreign nations . . . Laws restricting people from doing those things are not violations of the freedom of press or assembly or the right to keep and bear arms because we have surrendered any claim of those things as "rights" (exceptions of powers not granted).

Interestingly, this principle is actually applied to private citizens and weapons of war in the Constitution in clause 11 above and remains true and is applicable today.

The most devastating weapon of the time (Man o' War's) were owned by private citizens (Privateer's) and after the War, through the Constitution, power / control over those weapons was granted to Congress. Private citizens could not maintain or sail these ships without the permission of Congress (receiving a letter of marque and reprisal).

The same principle allowing government to place restrictions on citizens owning / using those weapons of war can be applied to restrictions over citizens owning weapons of modern open / indiscriminate warfare.

When considering this (and other questions of rights) it is important to remain tethered to the fundamentals:

The interests we have conferred to government we can not claim as a right.
Those interests that we have not surrendered but fully retained, the government cannot claim as a power.

​

​

Like what the government is actually allowed to do under the Constitution?



The 2nd Amendment is not a provision mandating tactical equivalency. It only is intended to keep the original ratios of numerical superiority the framers embraced and recognized as "securing the free state".

The framers stated in 1788 that the largest standing army that could be maintained in the US would, at most, amount to 1% of the total population. These government forces would be outnumbered ("opposed" was the word James Madison used) by "citizens with arms in their hands" by a ratio of 17 to 1.

In modern times that superiority has grown a bit, it now stands at 25 armed citizens to one soldier (2.9 million active duty and reserve military vs 75 million "citizens with arms in their hands" in a nation of 311 million "total souls".

While the framers did not envision every person being armed they certainly desired a significant percentage to be properly situated with small arms to resist with violence the standing army of a government of usurpers.

That ratio is the only condition they intended to preserve with the enactment of the 2nd Amendment, for that mass of armed, civic minded citizens would allow the civil authorities to organize militia when necessary, calling out the farmers, butchers, bakers and candlestick makers of the community and have them muster with an appropriate arm supplied by themselves and a couple days provisions.

Just to address the tactical for a moment, it is worthy of noting that at the height of the resistance, estimates of the number of Iraqi insurgents ranged between 8000-20,000 (US) up to 40,000 (Iraqi intelligence). With 160,000 troops in country our guys enjoyed at worst a 4 to 1 advantage and at best a 20 to 1 advantage. And in the opinion of many we were in a quagmire and losing.

Imagine if there were 2.8 million insurgents (Madison's 17-1 ratio) and many of them were very familiar with American heavy weapon platforms and endeavored to seize and offensively use those weapons instead of just blowing themselves up?



Huh?

Whatever the hell that means I'll just say that there is certainly no right for you to "feel safe" (or actually be safe).

You know Abatis, I've read maybe two dozen of your posts so far on these boards. Maybe my memory is faulty, but I can't think of a single one that didn't have to do with guns and the second amendment. That's not an accusation, you understand. But it does make me curious.

You seem to have a fairly extensive – although I would say tendentiously interpreted – knowledge of our legal tradition as it relates to gun rights. I give you credit for that; at least you're got some studied and well-constructed foundation for your arguments. That's rare enough.

So... what? What is it you hope to accomplish with your energetic advocacy? Do you have any ideas about constitutional law that don't relate to guns? Do you have a vision for the proper role of government in areas not related to the 2nd amendment? I haven't seen much on display, except maybe a general libertarian bent.

As I said, just curious...

Anyway, let's get back to the specific topic and let's start from a basic premise. You've said that the government derives it's power from the consent of the governed and that as we the people never surrendered any right to bear arms, the 2nd amendment is essentially meaningless as it relates to permissible restrictions on guns, at least on guns that are not “weapons of war.” Yes?

Well, that first bit about government power flowing from the consent of the governed is inarguably true on some level. Of course the arguments over how to interpret that as a practical matter have been going on since before the Constitution was ratified. Obviously not everyone agrees with what I take to be your position, i.e. that the federal government's powers are sharply limited to precisely what is literally spelled out in the Constitution.

But perhaps I misspeak, because I suspect that you're not that acutely concerned with limiting governmental power in connection with the preponderance of the federal government's business. For example, and please correct me if I'm wrong, I doubt that you're overly concerned about the fact that the feds limit my 1st amendment rights by not allowing me to set up my own radio station and broadcast at whatever strength and frequency I feel is appropriate. Fact is, the government limits rights and, more to the point, the means of effecting those rights all the time. Just about everyone sees that as a legitimate role of government and necessary to balance competing liberties, competing functions of government, and the public good. Well, they see it most of the time, anyway.

Let's not forget that “insure domestic tranquility” and “promote the general welfare” are right up there with “secure the blessings of liberty” in the preamble.

Now, don't get me wrong. You make decent arguments and your interpretations are plausible. But they're hardly uncontested. They're not gospel and bluster doesn't make them so. Fact is, the Supreme Court really didn't have all that much to say about the 2nd Amendment prior to Heller and McDonald. It's accurate enough to say that the Court has never explicitly disallowed any of the legal arguments you're making. However, to imply that the Court has never wavered in support of your interpretations is to overstate the breadth and depth of existing case law. In short, you claim too much.

And frankly some of your positions are, well, let's just say they're not universally held to be settled law. Your argument that “weapons of war” are properly denied to citizens who aren't members of the military because the Constitution explicitly gives the federal government and only the federal government the right to wage war is clever, but there's really nothing “originalist” about it.

For example, contrary to your suggestion, Letters of Marque and Reprisal issued by the federal government did not authorize ship owners to arm their vessels with cannon, they merely authorized armed vessels to take enemy prizes and dispense with the captured ships, cargo, and crew according to certain rules. In truth, in the late 18th and early 19th century there were no legal strictures stopping any U.S. ship owner from outfitting his vessel with whatever arms he wished. Certainly there were plenty of historical examples of privately-held ships being fully outfitted as ships of war, although the existence of regular naval forces had mitigated that necessity by the time the Constitution was written. Even so, the limitations to heavily arming a private ship were merely economic and practical, not legal. No one was apt to spend the money unless they wanted to go privateering, but no law prevented them from doing so for the sake of defending themselves if they so chose. The founders simply didn't make this distinction between “weapons of war” and “arms” that you want to make.

As for Madison's calculations regarding the proper ratio of armed citizens to regular soldiers, they're interesting no doubt. But the passage of time and advances in weapons technology has rendered them moot, at least. The Catch-22 that folks who want to argue for a well-armed populace's ability to resist tyranny find themselves in is that a sufficiently-popular uprising will invariably secure the arms necessary to resist a central authority and an unpopular uprising can't possibly sustain itself with a handful of folks even if they're extravagantly armed with civilian weapons. Our experience in Iraq illustrates this point as well as any other uprising in modern history.

Well, I suppose we could argue legal arcana till the cows come home. But as I suggested to trapdoor in a curiously-neglected reply elsewhere in this thread, this is ultimately a political issue. The Court always follows public opinion to one degree or another, after all. I think that to the extent you can, you should talk about the good you see that flows from your positions, the positive experiences that your current right to bear arms allows you to enjoy. But you go ahead and keep on pontificating about your fundamental rights and deriding those who disagree with your interpretation of case law. Keep on suggesting that those who disagree with you are ignorant and/or evil. Continue to insist that your right to arm yourself in the ways that you deem legitimate trumps anyone else's right to “feel safe.” See where that takes you over time in the face of horrific massacres.

You may believe passionately in the righteousness of your cause, I don't know. But you should understand that your “inviolable” rights don't mean squat unless there's a popular consensus that your particular rights are worthy of being recognized and protected. Impeccable logic and legal reasoning – assuming that you can in fact demonstrate them – won't win the day. Be as bombastic and intransigent as you like, it won't matter one bit if and when you lose the battle for popular recognition and approval. On that day, if it comes, all of your passion and cleverness will count for nothing. You'll simply be cast aside and society will move on without you. You'll conform or you'll be marginalized one way or another. That's just the way it is and always has been.

Sorry.

 

[888888]

I think anyone who can afford a machine gun, or a tank or land mines should have that right.
and anyone who they deem as a threat should be able to be dealt with as they see fit.
There I just wrote a bill that the majority of right wingnuts who are members or backers of the NRA, conservative in nature would be very willing to see passed as a right, since most of them already believe it is a right.

 

[oicu812]

I think anyone who can afford a machine gun, or a tank or land mines should have that right.
and anyone who they deem as a threat should be able to be dealt with as they see fit.
There I just wrote a bill that the majority of right wingnuts who are members or backers of the NRA, conservative in nature would be very willing to see passed as a right, since most of them already believe it is a right.

honey,,,you are one special whack-a-doodle, eh? tell me,,,did you read the posts above? now, tell the truth and shame the devil...you didnt, right? too many big words and for you, convoluted reasoning..and it doesnt matter what anyone else says anyway,,your right, and thats it {as you stamp your feet}...see the posts above had sound reasoning, and a understanding of the issues both FOR and AGAINST the subject of what "rights" both the govt. and people have, and more importantly, what 'rights" each do NOT have..the government gets its rights/power from the PEOPLE,,,its NOT the other way around...they disagreed, but both offered intelligent arguments to support their position...

if you educated yourself on the issues you seem so passionate about, you would garner a better understanding of them, and when someone reads your posts, {either for or against your view} they come away with real insight into what points you made,,,,,,,,instead of wondering what special kind of whack-a-doodle you are..


just sayin....

 

[fairsheet]

Does our Constitution serve us?...or, do we serve our Constitution? The beauty of our Constitution is that throughout our history, it's given us the latitude to do those things that we agree are "good". I'm not here to argue whether or not the individual right to own guns is a good thing. BUT...if at any point we decide - in sufficient numbers and to a sufficient degree - that the individual ownership of guns is a bad thing, we'd be silly to assume that we had no choice but to endure that bad thing, for fear of "offending" our Constitution's feelings.

 

[trapdoor]

Does our Constitution serve us?...or, do we serve our Constitution? The beauty of our Constitution is that throughout our history, it's given us the latitude to do those things that we agree are "good". I'm not here to argue whether or not the individual right to own guns is a good thing. BUT...if at any point we decide - in sufficient numbers and to a sufficient degree - that the individual ownership of guns is a bad thing, we'd be silly to assume that we had no choice but to endure that bad thing, for fear of "offending" our Constitution's feelings.

The beauty of our Constitution is the fact that it can be changed to meet new needs. The means for making such a change is written into the document. If you fear firearms (Hoplophobia is not on my personal list, but perhaps it is on yours), and their mpact on society you have an easy and legal solution to that "problem" -- amend the Constitution. Sans an amendment, I have the right to my own arms. You envision not "offending the Constitution's feelings," but to put it simply, breaking U.S. law.

 

[Woolleybugger]

Why was another amendment giving women the right to suffrage needed when we already had an amendment like this passed in 1870?



Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.[1]

Notice that it said "citizen" not gender. Were women not citizens in 1870?

Asked and answered...

"Minor v Happersett.

The Supreme Court unanimously upheld the Missouri voting legislation, saying that voting was not an inherent right of citizenship, that the Constitution neither granted nor forbade voting rights for women, and that allowing only male citizens to vote was not an infringement of Minor's rights under the Fourteenth Amendment.[11]

The opinion (written by Chief Justice Morrison Waite) first asked whether Minor was a citizen of the United States, and answered that she was, citing both the Fourteenth Amendment and earlier common law. Exploring the common-law origins of citizenship, the court observed that "new citizens may be born or they may be created by naturalization" and that the Constitution "does not, in words, say who shall be natural-born citizens." Under the common law, according to the court, "it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners."[12] The court observed that some authorities "include as citizens children born within the jurisdiction without reference to the citizenship of their parents"—but since Minor was born in the United States and her parents were U.S. citizens, she was unquestionably a citizen herself, even under the narrowest possible definition, and the court thus noted that the subject did not need to be explored in any greater depth.[13]

The court then asked whether the right to vote was one of the "privileges or immunities of citizens of the United States" at the time of the Fourteenth Amendment's adoption in 1868. Citing a variety of historical sources, it found that it was not.[14] The court reasoned that the Constitution of the United States did not explicitly give citizens an affirmative right to vote and that, throughout the history of the nation from the adoption of the Constitution, a wide variety of persons—including women—were recognized as citizens but denied the right to vote. For example, at the time of the adoption of the Constitution, none of the original Thirteen Colonies gave all citizens the right to vote, all attaching restrictions based on factors such as sex, race, age, and ownership of land. The opinion continues that "it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared."[15]"

Interesting case in that it clearly states that voting is not a right guaranteed by the constitution proving that our nation was not founded upon any notion of equality at all, rather is was a form of government by a select few over the rest of the citizenry giving rights to some that were not shared by all. The 14th solved part of the puzzle but apparently not enough. A former slave male was then given rights that any woman could not yet enjoy. The opinion used originalist logic in coming to this decision since they had to dig deep into cultural mores and definitions to come up with this decision to treat women as a distinct group of citizens. It took several decades more for this to be corrected via another amendment proving that had the courts decided Minor based upon the literal meaning of the law, women would have been able to vote all along. But they brought in extra information outside of the written law to continue a policy of discrimination against a body of citizens. Here is the paradox:

If we are endowed by our Creator with certain inalienable rights, did this Creator dole these rights out selectively? Where is the direct guidance from this Creator supporting this artifact of cultural bias? We have gone over the fact that there was no biblical list of inalienable rights and that the 9th amendment states that the BOR does not include all the rights we enjoy so it is clear that there are many rights available but not yet protected.

It appears to me that either the Creator was a misogynist, an incomplete thnker or there was no Creator only men who made him up to serve a purpose.

 

[fairsheet]

The beauty of our Constitution is the fact that it can be changed to meet new needs. The means for making such a change is written into the document. If you fear firearms (Hoplophobia is not on my personal list, but perhaps it is on yours), and their mpact on society you have an easy and legal solution to that "problem" -- amend the Constitution. Sans an amendment, I have the right to my own arms. You envision not "offending the Constitution's feelings," but to put it simply, breaking U.S. law.

In your personal opinion, the only way we can pass laws relative to guns, that would meet with your approval, is to amend our Constitution. Your opinion is in the American minority - which is my gist. American society would not have survived and/or will not survive, if it was or will be constrained by your personal opinions.

 

[trapdoor]

In your personal opinion, the only way we can pass laws relative to guns, that would meet with your approval, is to amend our Constitution. Your opinion is in the American minority - which is my gist. American society would not have survived and/or will not survive, if it was or will be constrained by your personal opinions.

No, My opinion is in the legal majority. You can pass laws relative to guns all you like. Inevitably, some of those laws will be found unconstitutional in the courts, and others will not. Abatis has accurately laid out the legal history of arms in the U.S. elsewhere in this thread. American society cannot survive if it ignores its own Constitution.