Author Topic: Nine things you didn't know about the Second Amendment  (Read 844 times)

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Offline rangerrebew

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Nine things you didn't know about the Second Amendment
« on: January 10, 2014, 05:23:06 AM »
9 Things You Didn't Know About the Second Amendment

Matt MacBradaigh's avatar image By Matt MacBradaigh  February 8, 2013


1. The Second Amendment codifies a pre-existing right

We hold these truths to be self-evident...inalienable

The Constitution doesn't grant or create rights; it recognizes and protects rights that inherently exist. This is why the Founders used the word "unalienable" previously in the Declaration of Independence; these rights cannot be created or taken away. In D.C. vs. Heller, the Supreme Court said the Second Amendment “codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed ... this is not a right granted by the Constitution” (p. 19).

2. The Second Amendment protects individual, not collective rights

Individual exercising 2nd Amendment

The use of the word "militia" has created some confusion in modern times, because we don't understand the language as it was used at the time the Constitution was written. However, the Supreme Court states in context, "it was clearly an individual right" (p. 20). The operative clause of the Second Amendment is “the right of the people to keep and bear arms shall not be infringed,” which is used three times in the Bill of Rights. The Court explains that "All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body" (p. 5), adding “nowhere else in the Constitution does a 'right' attributed to “the people” refer to anything other than an individual right" (p. 6).

3. Every citizen is the militia

Militia American Revolution

To further clarify regarding the use of the word "militia," the court states “the ordinary definition of the militia as all able-bodied men” (p. 23). Today we would say it is all citizens, not necessarily just men. The Court explains: “'Keep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else" (p. 9). Since the militia is all of us, it doesn't mean “only carrying a weapon in an organized military unit" (p. 11-12). “It was clearly an individual right, having nothing whatever to do with service in a militia" (p. 20).

4. Personal self-defense is the primary purpose of the Second Amendment

Self-Defense class

We often hear politicians talk about their strong commitment to the Second Amendment while simultaneously mentioning hunting. Although hunting is a legitimate purpose for firearms, it isn't the primary purpose for the Second Amendment. The Court states “the core lawful purpose [is] self-defense” (p. 58), explaining the Founders “understood the right to enable individuals to defend themselves ... the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury' (p.21). They conclude "the inherent right of self-defense has been central to the Second Amendment right" (p.56).

5. There is no interest-balancing approach to the Second Amendment

Law balance

Interest-balancing means we balance a right with other interests. The court notes that we don't interpret rights this way stating “we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all” (p.62-63). This doesn't mean that it is unlimited, the same as all rights (more on that below). However, the court states that even though gun violence is a problem to be taken seriously, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table" (p.64).

6. The Second Amendment exists to prevent tyranny

Tyranny

You've probably heard this. It's listed because this is one of those things about the Second Amendment that many people think is made up. In truth, this is not made up. The Court explains that in order to keep the nation free (“security of a free state”), then the people need arms: “When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny" (p.24-25). The Court states that the Founders noted "that history showed that the way tyrants had eliminated a militia consisting of all the able bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents" (p. 25). At the time of ratification, there was real fear that government could become oppressive: “during the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive" (p.25). The response to that concern was to codify the citizens' militia right to arms in the Constitution (p. 26).

7. The Second Amendment was also meant as a provision to repel a foreign army invasion

Japanese Army WWII

You may find this one comical, but it's in there. The court notes one of many reasons for the militia to ensure a free state was “it is useful in repelling invasions” (p.24). This provision, like tyranny, isn't an everyday occurring use of the right; more like a once-in-a-century (if that) kind of provision. A popular myth from World War II holds Isoroku Yamamoto, commander-in-chief of the Imperial Japanese navy allegedly said “You cannot invade the mainland United States. There would be a rifle behind every blade of grass.” Although there is no evidence of him saying this, there was concern that Japan might invade during WWII. Japan did invade Alaska, which was a U.S. territory at the time, and even today on the West Coast there are still gun embankments from the era (now mostly parks). The fact is that there are over 310 million firearms in the United States as of 2009, making a foreign invasion success less likely (that, and the U.S. military is arguably the strongest in the world).

8. The Second Amendment protects weapons "in common use at the time"

AR-15 rifle and Glock handgun

The right to keep and bear arms isn't unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited” (p. 54). The Court upheld restrictions like the prohibition of arms by felons and the mentally ill, and carrying in certain prohibited places like schools and courthouses. What is protected are weapons "in common use of the time" (p.55). This doesn't mean weapons in common use “at that time,” meaning the 18th Century. The Court said the idea that it would is “frivolous” and that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (p.8). The Court's criteria includes weapons in popular widespread use “that [are] overwhelmingly chosen by American society" (p. 56), and “the most popular weapon chosen by Americans” (p. 58).

9. The Second Amendment might require full-blown military arms to fulfill the original intent

U.S. Military - Heavy arms Machine gun

The Court didn't rule specifically on this in D.C. vs. Heller, but noting that weapon technology has drastically changed (mentioning modern day bombers and tanks), they stated “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large" (p. 55).

They further added that “the fact that modern developments [in modern weaponry] have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right" (p. 56). A full ruling has not been made, as this was not in the scope the court was asked to rule on in the D.C. vs. Heller case, but they left the door open for future ruling.

http://www.policymic.com/articles/24557/9-things-you-didn-t-know-about-the-second-amendment
« Last Edit: January 10, 2014, 05:24:10 AM by rangerrebew »
Abraham Lincoln:

There is no grievance that is a fit object of redress by mob law.
--January 27, 1838 Lyceum Address

Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these
great and true principles.
--August 27, 1856 Speech at Kalamazoo, Michigan

Let us then turn this government back into the channel in which the framers of the Constitution originally placed it.
--July 10, 1858 Speech at Chicago

Offline mrclose

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Re: Nine things you didn't know about the Second Amendment
« Reply #1 on: July 09, 2016, 03:17:25 AM »
After stating that the second amendment Shall Not Be Infringed we read: The right to keep and bear arms isn't unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited”

B.S.
Inalienable rights are God Given and the Court is not My God!

The Only reason they have gotten away with the restrictions and that line of thinking is because We The People allowed it!

The courts issue opinions and don't write law!
(Well not until recently anyway and that is another story)

These "restrictions" that the courts have put on the Second Amendment and the American People are Exactly that .. Infringements!

How people can write articles on the 2nd amendment and it's Shall Not Be Infringed foundation and then, in the same article tell us how the courts Have Infringed and seem to be okay with it .. I don't think I would trust them to know how to even handle a gun .. let alone Blog about my Rights to own one!

A lot, if not the majority of the people have willingly accepted that the courts know best and allow themselves to be 'controlled'!
 

There is Nothing in the 2nd Amendment giving the courts or congress Gun Control authority!

(Sorry Ranger, the writer is just another misled individual in my opinion)
« Last Edit: July 10, 2016, 06:11:50 PM by mrclose »

Offline rangerrebew

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Re: Nine things you didn't know about the Second Amendment
« Reply #2 on: July 09, 2016, 11:44:29 AM »
 :hands: :hands: :hands:  :thumbsup3:
Abraham Lincoln:

There is no grievance that is a fit object of redress by mob law.
--January 27, 1838 Lyceum Address

Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these
great and true principles.
--August 27, 1856 Speech at Kalamazoo, Michigan

Let us then turn this government back into the channel in which the framers of the Constitution originally placed it.
--July 10, 1858 Speech at Chicago

Offline mrclose

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Re: Nine things you didn't know about the Second Amendment
« Reply #3 on: July 09, 2016, 08:54:12 PM »
:hands: :hands: :hands:  :thumbsup3:
And All Day I have been worrying that when I got here, you would be reaming me a new one!

I am just so tired of seeing how people Accept Infringements .. as long as no one calls them Infringements!

I am afraid that we are now living in a media 'controlled' environment and that the majority are too busy or too stupid to care! 

Offline Mechanicos

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Re: Nine things you didn't know about the Second Amendment
« Reply #4 on: July 09, 2016, 11:28:26 PM »
Actually, the existence of Letters of Marque in the Constitution precluded any limit on weapons since those involved ships of war that carried cannons and explosives aka the WMD of that era.
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Offline Stosh

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Re: Nine things you didn't know about the Second Amendment
« Reply #5 on: July 10, 2016, 12:09:57 AM »
7. The Second Amendment was also meant as a provision to repel a foreign army invasion

…by 1912 the Swiss Army included 281,000 men and could call on an additional 200,000 auxiliary troops…Kaiser Wilhelm II of Germany visited Switzerland that year. As the Kaiser observed Swiss army maneuvers, Swiss President Ludwig Forrer told his guest that “we have the resolute intention of protecting our independence against any attack on this [land], our dearest possession, and of upholding our neutrality against anyone who fails to respect it.”

In a conversation depicted on a contemporary post-card, the Kaiser queried what the quarter of a million Swiss Army would do if faced with an invasion of half a million Germans. A Swiss militiaman replied, “Shoot twice.”

Online Smokin Joe

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Re: Nine things you didn't know about the Second Amendment
« Reply #6 on: July 10, 2016, 02:49:01 AM »
Hmmmm. Actually, only one of those I didn't know, because I never thought about interest balancing with what I considered an absolute and unalienable Right.
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Offline geronl

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Re: Nine things you didn't know about the Second Amendment
« Reply #7 on: July 10, 2016, 04:59:01 AM »
I am just so tired of seeing how people Accept Infringements .. as long as no one calls them Infringements!



"Hush now, we don't use that word round these parts, we say that we are well-regulating the militia. Bless their hearts."
36 37! 37 on ignore.

Offline bob434

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Re: Nine things you didn't know about the Second Amendment
« Reply #8 on: August 10, 2016, 01:32:00 PM »
The Second Amendment was never solely about a ‘well armed well trained militia’- as the left love to claim- it was always about arming ordinary citizens so that we can defend ourselves against any enemy either foreign or domestic- Every citizen has the right to be armed well enough to defend themselves against heavily armed enemies as will be evident by the following words of wisdom from our founding fathers as they envisioned bigger better, more powerful guns and wanted our citizens to be able to keep pace and match the firepower bullet for bullet if necessary to defend ourselves-:

“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
- Thomas Jefferson, letter to James Madison, December 20, 1787

“A-strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.” - Thomas Jefferson, letter to Peter Carr,
August 19, 1785

“No free man shall ever be debarred the use of arms.”
- Thomas Jefferson, Virginia Constitution, Draft 1, 1776

“On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed.”
- Thomas Jefferson, letter to William Johnson, 12 June 1823

“The Constitution of most of our states (and of
the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.”
- Thomas Jefferson, letter to to John Cartwright, 5 June 1824

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
- Benjamin Franklin, Historical Review of Pennsylvania, 1759

“I enclose you a list of the killed, wounded, and captives of the enemy from the commencement of hostilities at Lexington in April, 1775, until November, 1777, since which there has been no event of any consequence ... I think that upon the whole it has been about one half the number lost by them, in some instances more, but in others less. This difference is ascribed to our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy.”
- Thomas Jefferson, letter to Giovanni Fabbroni, June 8, 1778

“I ask who are the militia? They consist now of the whole people, except a few public officers.”
- George Mason, Address to the Virginia Ratifying Convention, June 4, 1788

“To disarm the people...s the most effectual way to enslave them.”
-George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adooption of the Federal Constitution, June 14, 1788

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
- James Madison, Federalist No. 46, January 29, 1788

“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
- Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

“The
right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
- James Madison, I Annals of Congress 434, June 8, 1789

“...the ultimate authority, wherever the derivative may be found, resides in the people alone...”
- James Madison, Federalist No. 46, January 29, 1788

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
- William Pitt (the Younger), Speech in the House of Commons, November 18, 1783

Offline Lando Lincoln

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Re: Nine things you didn't know about the Second Amendment
« Reply #9 on: August 10, 2016, 01:41:07 PM »
Posted a link back to this conversation in The Repository.

http://www.gopbriefingroom.com/index.php/topic,149285.0.html
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Offline AbaraXas

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Re: Nine things you didn't know about the Second Amendment
« Reply #10 on: August 10, 2016, 01:50:55 PM »
Quote
3. Every citizen is the militia

Militia American Revolution

To further clarify regarding the use of the word "militia," the court states “the ordinary definition of the militia as all able-bodied men” (p. 23). Today we would say it is all citizens, not necessarily just men. The Court explains: “'Keep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else" (p. 9). Since the militia is all of us, it doesn't mean “only carrying a weapon in an organized military unit" (p. 11-12). “It was clearly an individual right, having nothing whatever to do with service in a militia" (p. 20).

This part I've always taken disagreement to based on Federalist 43.   What they meant by Militia was a standing army. But, it doesn't mean a standing army has the right to bear arms, what it means is BECAUSE a free state needs a standing army, the people shall have the right to bear arms (per Fed 43 - so as they will never be oppressed or subjected by the standing army).

Personal opinion is this is very important because if the government is allowed to define every citizen as a militia, then the government, per Article 1, Section 8, can conscript any and all citizens and regulate their activity.

Just my 2c... I'm probably doing my usual splitting hairs over wording.

Offline rangerrebew

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Re: Nine things you didn't know about the Second Amendment
« Reply #11 on: August 10, 2016, 04:29:45 PM »
I just read where Obama has done such a fine job of selling the second amendment, gun sales are up 214% since 2007.
Abraham Lincoln:

There is no grievance that is a fit object of redress by mob law.
--January 27, 1838 Lyceum Address

Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these
great and true principles.
--August 27, 1856 Speech at Kalamazoo, Michigan

Let us then turn this government back into the channel in which the framers of the Constitution originally placed it.
--July 10, 1858 Speech at Chicago

Online Smokin Joe

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Re: Nine things you didn't know about the Second Amendment
« Reply #12 on: August 10, 2016, 06:54:03 PM »
This part I've always taken disagreement to based on Federalist 43.   What they meant by Militia was a standing army. But, it doesn't mean a standing army has the right to bear arms, what it means is BECAUSE a free state needs a standing army, the people shall have the right to bear arms (per Fed 43 - so as they will never be oppressed or subjected by the standing army).

Personal opinion is this is very important because if the government is allowed to define every citizen as a militia, then the government, per Article 1, Section 8, can conscript any and all citizens and regulate their activity.

Just my 2c... I'm probably doing my usual splitting hairs over wording.
In A dictionary I have of the English language ca 1814 (Barclay's), the word "Militia" is defined as "the army, in its entirety". I believe your interpretation is correct. For a free state to be secure, it must have a well trained (regulated: "controlled") army, but at the same time that army must be controlled (in alignment with the thought that the People are the source of legitimate power) by the People. In order for that to be, the People must be armed, so no infringement should be allowed to their right to keep and bear arms. The concept was that the bulk of the people, even without martial training, would be enough to resist any standing Federal Army, thus securing their Liberty should such an attempt be made on it. The deterrent effect, imho, given parity of private arms with those of the average soldier should be sufficient.

Which puts the NFA of 1934 squarely in the "infringement" category, as is every restriction on the acquisition and ownership of arms since.
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Offline bob434

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Re: Nine things you didn't know about the Second Amendment
« Reply #13 on: August 11, 2016, 12:11:58 PM »
This part I've always taken disagreement to based on Federalist 43.   What they meant by Militia was a standing army. But, it doesn't mean a standing army has the right to bear arms, what it means is BECAUSE a free state needs a standing army, the people shall have the right to bear arms (per Fed 43 - so as they will never be oppressed or subjected by the standing army).

Personal opinion is this is very important because if the government is allowed to define every citizen as a militia, then the government, per Article 1, Section 8, can conscript any and all citizens and regulate their activity.

Just my 2c... I'm probably doing my usual splitting hairs over wording.

Our founding fathers made it crystal clear that they meant for ordinary citizens to be armed as well- there are many sayings by our early fathers that show this fact, I've  posted but only a few of them- their statements make no mention of a militia either- and their intentions make it very clear that they felt citizens should be armed for the purposes of defense against both foreign and domestic tyranny- and they make it abundantly clear that government was not to regulate their activities- the whole purpose was to be free of government tyranny- not to be subjected to it simply because we wish to defend ourselves and our families-


“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
- Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787
« Last Edit: August 11, 2016, 12:17:29 PM by bob434 »

Offline JustPassinThru

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Re: Nine things you didn't know about the Second Amendment
« Reply #14 on: August 11, 2016, 12:40:32 PM »
Someone else referenced The Federalist .  This is important; in several essays they make it plain the clear differences between a MILITIA, as opposed to a STANDING ARMY.

A standing army was a threat to freedom.  And no one thought there was any need to insure a standing army has the right to keep and bear arms.

The MILITIA, was the irregular citizen-soldier;  a volunteer in time of need.  By "well-regulated" the Framers meant drilled and trained; with a clear chain of command and understanding of duties.  In any event, while the need for one is referenced, the Right to Keep and Bear Arms is not limited to those with militia membership.

It is a universal right (UNLIKE voting) which MAY NOT BE INFRINGED.
« Last Edit: August 11, 2016, 12:41:39 PM by JustPassinThru »


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