Summations Only

I would suggest that the security of the state was the "purpose" of the formation of the union and drafting of the constitution.What I see as the "pre-existing right" that the founding fathers had in mind is that all members of this new democracy should be allowed to fully participate in that democracy. Of course, we have spent the last 239 years trying to figure out who "all members" are and what it means to "participate in that democracy." But hey, whoever said this would be easy?As far as the second amendment goes, I see two main things the drafters wanted to accomplish: They wanted to assure that ALL citizens could participate in the defense of the union, not just those chosen by the government. In other words, they didn't want a situation where, for example, Protestants were forbidden to participate in the militia and only Catholics were allowed.The second thing, while not explicitly stated, seems to me clear from the context of militias of the day and the struggles that occurred in the years after. Militias were state or locally operated units and the founding fathers recognized the dangers of a centralized government that had too much military power. So keeping military power decentralized and in the hands of local governments **and their citizens** was important to maintaining stability and justice.Regardless of what the founding fathers intended for the second amendment, the question is how do we address it today? What is clear is that the amendment does NOT intend to allow everyone the right to bear ANY type of arm they wish at ANY time and in ANY place. This is where we need to focus efforts to get the gun problem under control. Acknowledge the people's right to have a firearm, but limit the types of weapons allowed, the exchange of those weapons and where they can be legally carried. It's an uphill battle to try and take away the right completely, nor do I think we should do that.HBD

I agree, except that I don't think the problem can be controlled. That ship has sailed.

Not according to the grammar of the wording I quoted, which clearly evokes a right already in existence before the writing of the Constitution.We can go on to consider your question of course, but not if you are denying the clear meaning of the text as not granting but protecting a pre-existing right.Perhaps at the very least it refers to the simple fact that the colonists did consider themselves to have the right to possess arms which none of the colonial governments challenged.But I suppose I have to agree with Cat Sci and Jon after all, that this is an allusion to the idea of natural rights you've all been objecting to. The source of any right considered to pre-exist the Constitution must be the Creator God, which is very clearly expressed in the Declaration of Independence in these words: Laws not given by any human government but by God Himself or by Nature, which governments are formed to "secure," or affirm and protect, not grant.It's a very American very Constitutional idea.

From United States v. Cruikshank:

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The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government...

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The Cruikshank decision allows for strict local gun controls. Kind of destroys that natural law thing.
The majority of the Cruikshank decision has been overturned by later court cases.
Cruikshank is one of the dark decisions of the Court after the Civil war. It isn't really considered very relevant these days.

Thanks Cat Sci, I appreciate the argument. The constitution is not square one, but there is a bunch of history and precedent between the jungle and natural rights and the constitution. At most there is support for a pre-existing right whose boundaries are based on historical, pre constitution precedent.Your argument that the 2nd amendment does not create a right cuts both ways. Whatever limits on that right existed prior to the constitution must still exist after ratification.Here is the view of the 2nd amendment from Cruikshank.

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The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government

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Under Cruikshank, the right to bear arms is subject completely to the individual states. It is not an unlimited 'natural' right to bear arms that is not subject to limitations. It is at most a pre-existing right that, for example, the State of Illinois, can freely restrict. Cruikshank was generally cited by advocates of gun control in support of gun control laws. Prior to DC v. Heller, no state gun control legislation was ever invalidated under the 2nd amendment.If that's your position, then fine, but DC vs Heller completely overrules this portion of Cruikshank, and other decisions have invalidated much of the rest of the case.One might also note that the effect of Cruikshank was to excuse a fairly substantial injustice coupled with the Colfax massacre.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

The Declaration of Independence does not aspire to or embody Constitutional ideas. It is a document from a group of rebels that did not want their current government. You can not cite the Declaration to force its ideas into the Constitution. The Declaration of Independence is not a legal document of the United States of America.The current government system of the United States was not founded until 1789, 13 years and many negotiations later.

Yes. Sometimes people forget that we even had a previous constitution or that we had states before we had a federal government. Or that the colonists brought a bunch of British law with them. There is not just the jungle and then the constitution.Edited by NoNukes, : No reason given.

I found some more quotes:

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It is also important to note that the Bill of Rights does not grant people the listed rights. The Bill of Rights simply guarantees that the government will not infringe upon those rights. It is assumed that the rights pre-exist. It is an important distinction. source

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and:

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What is a right, and where does it come from? A right is a power or privilege that is recognized by tradition or law. Natural or human rights are inherent to human nature; they are not given by government, but neither does government always protect them. Legal rights are those recognized by government, but they can often be taken away as easily as they are given. Throughout U.S. history, many Americans have sought to protect natural rights with law. Indeed, rights form the core of the American experience. As noted by the Commission on the Bicentennial of the United States Constitution: America has always been about rights. . . . While many nations are based on a shared language or ethnic heritage, Americans have made rights the foundation of their national identity. source

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. From that first source:

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The Bill of Rights, which is recognized as the first ten amendments to the Constitution, lists many rights of individuals. It is important to note here why the a bill of rights was not originally included in the Constitution. Most of the Framers felt that any power to infringe upon individual rights would not be legal under the Constitution, since the power to infringe was not granted to the United States by the Constitution. But the arguments of the people who supported a bill of rights eventually prevailed, and guarantees were added to the Constitution within a few years.

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And this source does go on to describe later amendments as also being natural rights, despite your insistance that having a right to vote, outside of a legal system, is something that is ridiculous and therefore cannot be the case. There is no such thing as an unfettered right. Sure, but again, a legal denial of a right does not eliminate the natural right.The right of individuals to arm themselves goes waaay back, before the U.S. even existed. Like, all the way back to Aristotle. It was even in the English Bill of Rights of 1689. Was it even questioned?

You should really do your own research instead of relying on random web commenters.The actual text of the English Bill of Rights 1689 says

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subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law"

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so it's not exactly "right to bear arms".
None for them damn Catholics. Also there seems to be a class distinction there. Don't want those damnable peasants arming themselves do we.So what we have is a natural right for high born Protestant men. Clear enough.Avalon Project - English Bill of Rights 1689

The English Bill of Rights is not natural law. It is pre-existing law with a history of precedent and limitation. I am aware that law, both rights and limitations, existed in the US prior to the constitution. Sure. Now what are the natural rights. And how easily is your right to vote under the constitution taken away? What do you think this paragraph demonstrates. Do you think you can invoke a natural right that is not protected by the government?Are you going to tell us the source of these quotes? Of course. The most famous case is US v. Miller. which outlawed shotguns as not being suitable weapons for carrying in a Militia. There is also Presser v. Illinois. These are the most famous Supreme Court cases, but there are plenty of Circuit of Appeals cases and District Court cases. But you don't really have a point right? This was just a stab in the dark on your part?SC case law prior to 2007 always cast the personal right to bear arms in light of the purpose being the state militia. DC v. Heller is the first Supreme Court case to remove that limitation from the personal right, and McDonald v Chicago was the first case to apply the 2nd amendment to the states.Edited by NoNukes, : No reason given.

They were "vindicating and asserting their ancient rights and liberties". They were talking about their natural rights, as opposed to the divine rights of kings. As I've been saying, the point is about the mentality behind it.Some people here think that they shouldn't be allowed to do anything until their government enables them to by granting them the right.That's the wrong mentality. It should be the opposite:You free to do what you want until the government says that you cannot.So when it comes to the question of whether we should "let" individuals arm themselves, then we've already started off on the wrong foot. And if you deny that people have the right to arm themselves, then you've already lost before we even got out of the gate.The way our Constitution is written, as individuals we have had the right to arm ourselves since before the U.S. existed. This is also evident outside of the Constitution, itself, going way back in time across multiple cultures. There are source links inside the first two quote boxes. Actually, I was hoping to learn about more cases to read.

But as it reads these were not rights for just anyone. These rights were only for highborn protestant males. All others need not apply. How can natural rights only apply to a small subset of the population?

Regardless of what you call the 'mentality', it is pretty clear that the reality is that the constitution, even including the Bill of Rights actually does grant rights. It is also the case that you cannot identify even pre-existing rights by merely taking language at face value the way you and Jon do.It is further the case that even pre-existing does not mean that laws you extrapolate as natural or God Given are the pre-existing rights that are actually protected.

Wait... are you suggesting that the right to bear arms is a right endowed upon us by our creator? Or are you merely suggesting that the founding fathers saw it that way?Rights that pre-existed the constitution could simply be rights that another government or society had conferred the people. Those rights don't necessarily come from God or as a result of natural rights.HBD