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Author Topic:   The Second Amendment
dronestar
Member
Posts: 1384
From: usa
Joined: 11-19-2008


Message 1 of 51 (669764)
08-02-2012 1:35 PM


The Second Amendment

NoNukes writes:

I see lots of assertions about why we have a second amendment, but not one of them, by people on either side of the debate, is historically correct.

quote:
As passed by the Congress:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.[8]


I HAD thought the term "well regulated militia" was often dishonestly and conveniently omitted by gun enthusiasts so that they could illegally legitimize their stockpile of guns. I HAD thought the word 'people' was referring to 'collective,' not individual. I HAD thought the first two of three interpretations of the amendment were correct:

quote:
Three basic competing models were offered to interpret the Second Amendment:[107]
1. The first, known as the "states' rights" or "collective rights" model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia.
2. The second, known as the "sophisticated collective rights model", held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.

But it seems the third model for individual rights were upheld in 2001, 2008, and 2010:

quote:
3. The third, known as the "standard model", was that the Second Amendment recognized the personal right of individuals to keep and bear arms.

In 2008 and 2010, the Supreme Court issued two Second Amendment decisions. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia[1][2]


http://en.wikipedia.org/...to_the_United_States_Constitution

Not sure if this is a worthwhile topic for 'debate' as I am really not offering any argument but maybe a potential springboard for discussion. If a moderator wants to delete this, ok. And if there isn't any substance to pursue, then please feel free to continue the gun control debate from the other thread. (it seems that it might still have legs)


Replies to this message:
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nwr
Member
Posts: 5647
From: Geneva, Illinois
Joined: 08-08-2005
Member Rating: 7.4


(1)
Message 2 of 51 (669766)
08-02-2012 1:47 PM
Reply to: Message 1 by dronestar
08-02-2012 1:35 PM


A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

I'm not any kind of lawyer.

I have always taken the point to be "the security of a free state". This includes the need to defend against external invaders. But it also includes the need to defend against a tyrannical local government which threatens freedom by virtue of its tyrrany.

Unfortunately, we have some people who want to apply the absurd principles of Biblical literalism to the constitution.


Jesus was a liberal hippie

This message is a reply to:
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Replies to this message:
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jar
Member
Posts: 33125
From: Texas!!
Joined: 04-20-2004
Member Rating: 4.6


(3)
Message 3 of 51 (669771)
08-02-2012 2:39 PM


Putting the Constitution in context.
Often we forget that the US Constitution was not a product of 1776 but rather a second attempt a designing what would become the United States of America.

I'm really surprised how often I talk to people who seem totally unaware that the Constitution was revisionist in origin and designed to address the failures of the "Articles of Confederation and Perpetual Union" that preceded it.

The original Articles of Confederation were drafted during the Second Continental Congress as one leg of three separate and distinct "Nation Building" efforts; steps necessary if the thirteen colonies were to ever be recognized as anything more than rebels under a legitimate Monarch. The three legs were a Declaration of Independence, a Model Treaty that would set standards of conduct in trade and relationships with other nations and the Articles of Confederation that established a working plan for a unified Federal Government.

Under the Articles almost all powers remained in the hands of the individual States except those powers specifically granted to the Congress. Only Congress could make treaties and agreements with other Nations, resolve disputes between States, Declare and make war (but there was no provision for taxation to pay for any of those). There was no Presidency, no Judiciary.

The new United States was pretty evenly divided between those who favored a strong Federal Government and those who favored a weak Federal Government but strong State Governments.

Some provisions that were included were that the new Congress of the Confederation would assume all debts and liabilities from the War and that only Congress could make or ratify any Treaties. Since the Congress had no power to raise any money except ask for the individual States to do so, or even force the members of the Congress to come meet and vote on issues, things pretty much stopped. Even the official end to the war (the Treaty of Paris) could not be signed because the members of Congress had returned home and there was no way to get them to come back.

It was that total failure under the Articles of "Confederation and Perpetual Union" that lead to the creation of a whole new government and Constitution.

The new Constitution (and the first ten amendments to that Constitution) was born during that period. There was still widespread dislike of any strong central government or the idea of any standing army. The Second Amendment reflects that position and belief that armaments should be in the hands of the individual people and not in any central government, State or Federal.

Edited by jar, : appalin grammur

Edited by jar, : rally appalin spallin


Anyone so limited that they can only spell a word one way is severely handicapped!

Replies to this message:
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dronestar
Member
Posts: 1384
From: usa
Joined: 11-19-2008


Message 4 of 51 (669774)
08-02-2012 3:24 PM
Reply to: Message 2 by nwr
08-02-2012 1:47 PM


nwr writes:

I'm not any kind of lawyer.

Me neither. This is just an interesting subject that I don't know enough about, and I hope that this thread could illuminate the amendment's original intention and how it has morphed into today's usuage.

nwr writes:

I have always taken the point to be "the security of a free state". This includes the need to defend against external invaders. But it also includes the need to defend against a tyrannical local government which threatens freedom by virtue of its tyranny.

Yes, I think that is correct. It seems the original intent of the second amendment was to guard against the tyranny of a federal or standing army and, less so, with foreign invasion. So, in the 1700 and 1800s, it was all about securing STATE'S rights and powers to counter dictatorial threats via a regulated 'FEDERAL' militia.

However, as was amply demonstrated in the other thread, there is now no militia that could counter the US military. Also, american rights and liberties have been greatly eroded by the feds since 1700 (except for individual gun rights, ironically), so the second amendment wasn't even successful.

So, since the amendment hasn't been useful for this purpose in a long time, should it have been abolished 150(?) years ago? Should amendments be allowed to morph into other purposes?

Edited by dronester, : corrected STATES to 'FEDERAL'


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jar
Member
Posts: 33125
From: Texas!!
Joined: 04-20-2004
Member Rating: 4.6


(1)
Message 5 of 51 (669775)
08-02-2012 3:28 PM
Reply to: Message 4 by dronestar
08-02-2012 3:24 PM


Also, american rights and liberties have been greatly eroded by the feds since 1700 (except for individual gun rights, ironically), so the second amendment wasn't even successful.

That's not quite right.

Gun rights are limited in the USA but at the State and Local level. For example the gun laws in New York or California are quite different than in Georgia or Arizona and the laws in New York City different than New York State.


Anyone so limited that they can only spell a word one way is severely handicapped!

This message is a reply to:
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Replies to this message:
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dronestar
Member
Posts: 1384
From: usa
Joined: 11-19-2008


Message 6 of 51 (669776)
08-02-2012 3:38 PM
Reply to: Message 5 by jar
08-02-2012 3:28 PM


jar writes:

Gun rights are limited in the USA but at the State and Local level.

Gun rights are not limited at the federal level? (I really don't know too much about this subject.)


This message is a reply to:
 Message 5 by jar, posted 08-02-2012 3:28 PM jar has responded

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jar
Member
Posts: 33125
From: Texas!!
Joined: 04-20-2004
Member Rating: 4.6


Message 7 of 51 (669781)
08-02-2012 5:20 PM
Reply to: Message 6 by dronestar
08-02-2012 3:38 PM


Yup, Feds too.
Yes, there is also Federal Gun Laws but they mostly deal with the commerce side; with registering who can sell a gun and what is legal to sell. For example the Tax stamp that must be purchased to buy a fully automatic weapon and the Federal Bureau of Alcohol, Tax and Firearms (BATF) handles that regulation.

There is also supposed to be a Federal Registry of purchases, felons and those prohibited from buying a handgun, but it's relatively new and very incomplete.

But the patchwork of laws and regulations in the US are as varied as all other laws and regulations here. What is legal in one State may well be illegal in another and even in one State gun laws vary from county to county and even city to city within a particular county.

Remember, the US does not even have any registry or database of who is a US Citizen.


Anyone so limited that they can only spell a word one way is severely handicapped!

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NoNukes
Inactive Member


Message 8 of 51 (669785)
08-02-2012 7:06 PM
Reply to: Message 1 by dronestar
08-02-2012 1:35 PM


But it seems the third model for individual rights were upheld in 2001, 2008, and 2010:

What case are you citing from 2001?


Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

The apathy of the people is enough to make every statue leap from its pedestal and hasten the resurrection of the dead. William Lloyd Garrison


This message is a reply to:
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nwr
Member
Posts: 5647
From: Geneva, Illinois
Joined: 08-08-2005
Member Rating: 7.4


(3)
Message 9 of 51 (669788)
08-02-2012 10:09 PM
Reply to: Message 4 by dronestar
08-02-2012 3:24 PM


So, since the amendment hasn't been useful for this purpose in a long time, should it have been abolished 150(?) years ago?

Realistically, you are not going to get it abolished.

Any attempt to drastically restrict access to guns will be seen by many as just the kind of tyranny that the 2nd amendment was to supposed to protect against.

The real problem is not the 2nd amendment. It is the gun culture in America. The way to change culture is by a grass roots effort from within, rather than by imposing change from on high. And that won't happen any time soon.


Jesus was a liberal hippie

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jar
Member
Posts: 33125
From: Texas!!
Joined: 04-20-2004
Member Rating: 4.6


Message 10 of 51 (669790)
08-02-2012 10:23 PM
Reply to: Message 9 by nwr
08-02-2012 10:09 PM


The real problem is not the 2nd amendment. It is the gun culture in America.

I'm not sure that the gun culture is much more than another reflection of general US culture and the abdication of personal responsibility common to today's US culture.


Anyone so limited that they can only spell a word one way is severely handicapped!

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nwr
Member
Posts: 5647
From: Geneva, Illinois
Joined: 08-08-2005
Member Rating: 7.4


Message 11 of 51 (669795)
08-03-2012 12:05 AM
Reply to: Message 10 by jar
08-02-2012 10:23 PM


That may well be true.

Jesus was a liberal hippie

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NoNukes
Inactive Member


Message 12 of 51 (669797)
08-03-2012 12:49 AM
Reply to: Message 3 by jar
08-02-2012 2:39 PM


Re: Putting the Constitution in context.
The Second Amendment reflects that position and belief that armaments should be in the hands of the individual people and not in any central government, State or Federal.

I think there is support for the idea that the second amendment originally reflected the proposition that the federal government was the most likely source of governmental abuse, and that the separate states were the preserver of rights. The Georgia state militia was supposed to protect Georgians from a federal government dominated by a bunch of New Yorkers.

The constitution did set up a strong federal government. The Bill of rights was an add on to spell out some specific things that belonged to the states. But the bill or rights simply did not spell out any limits on state government. At least not until the 14th amendment and incorporation.

Edited by NoNukes, : No reason given.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

The apathy of the people is enough to make every statue leap from its pedestal and hasten the resurrection of the dead. William Lloyd Garrison


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 Message 3 by jar, posted 08-02-2012 2:39 PM jar has acknowledged this reply

  
dronestar
Member
Posts: 1384
From: usa
Joined: 11-19-2008


Message 13 of 51 (669814)
08-03-2012 8:50 AM
Reply to: Message 8 by NoNukes
08-02-2012 7:06 PM


NN writes:

What case are you citing from 2001?

According to Wiki:

quote:
The question of a collective rights versus an individual right was progressively resolved with the 2001 Fifth Circuit ruling in United States v. Emerson, in the 2008 Supreme Court ruling in District of Columbia v. Heller, and in the 2010 Supreme Court ruling in McDonald v. Chicago. All of those rulings upheld the individual rights model when interpreting the Second Amendment. In Heller, the Supreme Court upheld the Second Amendment as protecting an individual right.[112] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.[113]

http://en.wikipedia.org/...to_the_United_States_Constitution

Thanks for the replies guys, i find the historicity of such things interesting.


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crashfrog
Member (Idle past 219 days)
Posts: 19762
From: Silver Spring, MD
Joined: 03-20-2003


(3)
Message 14 of 51 (669816)
08-03-2012 9:01 AM
Reply to: Message 4 by dronestar
08-02-2012 3:24 PM


However, as was amply demonstrated in the other thread, there is now no militia that could counter the US military.

People referred to tanks, aerial bombings, and nuclear weapons, but I assumed they were being facetious. Is it actually anybody's position that a popular uprising against the US military is doomed to fail because they would deploy nuclear weapons against their own cities?

Those who believe that the US military has the capability to pacify any resistance need to deal with the amazing failure of the US military, so far, to pacify resistance in Afghanistan and Iraq. What I usually find is that most progressives hold precisely two contradictory positions on the capability of the US military, depending on what question is being asked: "no ordinary rabble could hope to stand in the face of the modern military" when the question is about the Second Amendment; "pacifying an entirely population of motivated resistance is simply not something a modern military is able to do" when the question is about the security situation in Iraq and Afghanistan.

But which is it?

Edited by crashfrog, : "Liberals" to "progressives" to avoid sounding pejorative.


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Straggler
Member
Posts: 10328
From: London England
Joined: 09-30-2006


(5)
Message 15 of 51 (669819)
08-03-2012 9:20 AM
Reply to: Message 14 by crashfrog
08-03-2012 9:01 AM


Who Do We Need to Protect Democracy From?
Do you honestly believe that the reason that the US isn't being converted into a totalitarian regime as we write is because Joe and his buddies have access to rifles and suchlike and that the government is just too scared of these gun wielding protectors of freedom to do what it really wants to do?

Do you really think that those countries where we don't have the same attitude to guns are in some terrible danger of sleepwalking into such a regime because we, the citizenry, aren't armed enough to stop the government doing that?

This whole idea that the populace needs guns to stop the government forcibly taking over is bizzarre......

The government (or more accurately those who effectively own the politicians) have far more effective and profitable methods of getting the populace to give them what they want anyway.

Frankly if democracy is ever forcibly eliminated in the US it won't be by the government. It will be eliminated by a a mass of gun nuts who decide that the elected government isn't white, homophobic or right wing enough for their tastes......

It is the gun nuts that you guys need to protect democracy from!!! Not the other way round.


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