Gun Rights and Gun Control

[lilpixieofterror]

No, he's arguing the issue - which isn't gun ownership.

And establishing the individual right by using the Federalist Papers was Lil's idea. It's failing because it's NOT what the Founders were concerned about. They didn't want (or have the resources for) to have a standing army. Absent a standing army, they opted for a 'well regulated militia' - which is where the Second comes from.

An incredibly liberal Court incorporated the thing - I'm not sure why Lil wants to argue this at all but history doesn't support the 'Founders wanted everyone to have guns' notion. At. All.

[lilpixieofterror]

What does the early case law say?


That's right, it's based in the militia, not individual rights.


It's been incorporated - why are you even arguing this?

What did they see as the right of self defense? I am building this case as the idea that the militia was seen as a guard from threats from within and outside and was ultimately an extension of your right self defense. Of course, the only way to defend yourself is by banding together and forming an army aka a militia. In this way, the justification for self defense goes beyond merely individual protection.

[carpedm9587]

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.
Federalist 28

Pixie - read the ENTIRE paragraph. Hamilton is still talking about the defense of the citizenry from a tyrannical government. The sentence is in the context of "representatives of the people betray their constituents." It's not about criminals on the street. That concept of "self-defense" has been added over the years.

That is not to say that the founders (and others) did not see guns as having multiple purposes: defense of self and property, hunting, sport shooting, etc. It IS to say that the protections written into the constitution were not ABOUT those things - they were about the citizenry having guns to participate in a militia for the protection of the citizenry against outside foes or a tyrannical government.

[lilpixieofterror]

Pixie - read the ENTIRE paragraph. Hamilton is still talking about the defense of the citizenry from a tyrannical government. The sentence is in the context of "representatives of the people betray their constituents." It's not about criminals on the street. That concept of "self-defense" has been added over the years.

Never said it was. What I said is that Hamilton is building onto the concept of self defense to include defending yourself from a tyrannical government and I based my concept of self defense based upon ideas known in the 18th century. This is important because no concept of self defense renders the entire militia argument moot.

That is not to say that the founders (and others) did not see guns as having multiple purposes: defense of self and property, hunting, sport shooting, etc. It IS to say that the protections written into the constitution were not ABOUT those things - they were about the citizenry having guns to participate in a militia for the protection of the citizenry against outside foes or a tyrannical government.

And yet this concept is an extension of the concept of self defense. No concept of self defense, no reason to have a militia and a right to rebel. You need the concept of self defense first before the logic of the second amendment makes sense.

[carpedm9587]

Never said it was. What I said is that Hamilton is building onto the concept of self defense to include defending yourself from a tyrannical government and I based my concept of self defense based upon ideas known in the 18th century. This is important because no concept of self defense renders the entire militia argument moot.

And yet this concept is an extension of the concept of self defense. No concept of self defense, no reason to have a militia and a right to rebel. You need the concept of self defense first before the logic of the second amendment makes sense.

Umm...you are reading into the documents things that are simply not there. The documents are clear: self-defense, as constitutionally protected, was in the context of the defense of country via a "well-regulated militia." The Constitution does not preclude defense in other contexts, or hunting, or sport shooting. But it does not protect these things explicitly - it protects the right to bear arms in support of a well regulated militia.

That does not mean I think arms should be taken away unless they are for a "well regulated militia." But it DOES mean that the argument that the 2nd Amendment is some kind of "universal protection" and that any gun control laws are "anti-second amendment" simply fails.

I also do not think we should be randomly implementing gun control laws. I do not believe ANY freedom should be impinged upon without due cause. The problem here is, the research required to determine what the appropriate action is has been essentially prohibited. It does not matter to me if the research shows the solution to be "more guns for everyone" or "limit access to certain types of weapon" or "increase penalties for gun use in the commission of a crime." The problem is, we have close to zero data to tell us the best way to proceed. All we have are the talking-point correlations of the gun lobby spearheaded by the NRA, and the gun-control lobby not spearheaded by any one organization.

The situation would be funny, if it were not so damned serious and impacting so many lives.

[Teallaura]

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.
Federalist 28

It's about the self-defense of the state, Lil - read it. It has zero to do with defending home and hearth - it's about defending God and country. (okay, state).

[Teallaura]

What did they see as the right of self defense? I am building this case as the idea that the militia was seen as a guard from threats from within and outside and was ultimately an extension of your right self defense. Of course, the only way to defend yourself is by banding together and forming an army aka a militia. In this way, the justification for self defense goes beyond merely individual protection.

Lil, you need to reread this stuff more carefully - they aren't arguing individual self defense. They didn't particularly care about individual ownership other than to supply a ready militia rather than a standing army.

Also, the Federalist Papers do give us insight into the Founders intentions - but they don't equate to case law. If you are correct, we should see it in case law - but you're arguing the exact opposite of what the early case law shows.

Also, if you're arguing to prevent the dis-incorporation, this won't work. The passages you keep citing do not support your conclusions.

[Teallaura]

Um, Lil, you're defending the first, not the second. The only rational reason to look at the Founders now is the issue of dis-incorporation or the issue of abolition - neither of which is actually being argued by anyone else.

[rogue06]

Time to repost this bit on whether the private ownership of firearms was intended to be a collective or individual right. It was originally written after Starlight declared that the idea that the 2A covered the right of the individual to keep and bear arms was concocted by the NRA in recent years and reposted when Sam declared it was a "very modern interpretation"

Another example of ignorance based historical revisionism that is in the words of the famous theoretical physicist Wolfgang Pauli, Das ist nicht nur nicht richtig, es ist nicht einmal falsch! ("That is not only not right, it is not even wrong"). Or as put in what is sometimes called "Asimov's axiom": "Not even wrong."

In his 400-page The Bill of Rights: Creation & Reconstruction
And when the U.S. Supreme Court overturned the 32 year long ban on handguns in Washington D.C., in June 2008 (District of Columbia v. Heller) in a 5-4 decision. It was "an inevitable ruling," explained George Washington University Law Professor Jonathan Turley. "Even though I'm an advocate of gun control, it's very hard to read the Second Amendment and not see an individual right."

And the claim that "The Second Amendment wasCommentaries became nearly universally regarded as being the leading American authority on both Blackstone and American law.

Tucker addressed the Second Amendment at several points, clearly stating that it protected the individual, natural right of self-defense. After quoting the amendment he wrote:

"This may be considered as the true palladium of liberty... The right of self defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever prohibited, liberty, if not already annihilated, is on the brink of destruction."

View of the Constitution of the United States of America in 1825 with a second edition printed in 1829. In it, especially in the second edition, he made it clear that the right to keep and bear arms belonged to the ordinary citizen, writing that, "No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people."

This same view can again be seen in the highly influential 1833 Commentaries on the Constitution of the United States by Supreme Court Justice and law professor Joseph Story, as well as in his later Familiar Exposition of the Constitution. By paraphrasing the "right of the people" as the "right of the citizens" -- not of States or members of a militia -- Story left no doubt that he meant the right to belong to individuals. He unequivocally stated that "the right of the citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic."

Story was even more direct in his [i]Familiar Exposition[/u]purchased by state or local legislatures, or supplied by the King^[1], any pre-1900 case or commentary shows that none of them thought of the Second Amendment was established to preserve a collective right or right of the states. IOW, while the Second Amendment was meant to preserve and guarantee an individual right for a collective purpose that does not in any way suddenly somehow transform that right into a collective right. There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-20th century Supreme Court decisions, indicating that the Second Amendment was intended to apply solely to members of well-regulated militias. The "collective right only" theory is exclusively an invention of the 20th century "gun control" debate.













1. In the Federalist No. 29 Alexander Hamilton clearly and unambiguously states that membership in a well-regulated militia is not required for the right to keep arms.

The simple fact of the matter is that the concept of an individual right to own and bear firearms is anything but a modern idea. Those who promote this codswallop are seeking nothing less than to rewrite history to suit their agenda.

The idea that the Second Amendment (2A) protects the right of the states rather than the individual was utterly alien until the 20th century and despite diligent research by many hopeful liberals they could never find the concept ever mentioned until then. To show just how ridiculous the idea that the 2A was meant to allow states to establish a National Guard (an argument offered by several gun control advocates) is, one needs to simply note that it took Congress 130 years to establish the National Guard (from 1787 to 1917).

Just for giggles I'll also cite the late renowned historian Leonard Levy who specialized in the history of basic American Constitutional freedoms and authored several highly regarded books on various parts of the Bill of Rights. In his The Origin of the Bill of Rights Levy unequivocally wrote:

"Believing that the amendment does not authorize an individual's right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights...The very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause. Rather the right is an independent one, altogether separate from the maintenance of a militia. Militias were possible only because the people were armed and possessed the right to be armed. The right does not depend on whether militias exist."

Levy also noted that the state constitutions of the revolution and early national period also acknowledged it as an individual right.

[carpedm9587]

Time to repost this bit on whether the private ownership of firearms was intended to be a collective or individual right. It was originally written after Starlight declared that the idea that the 2A covered the right of the individual to keep and bear arms was concocted by the NRA in recent years and reposted when Sam declared it was a "very modern interpretation"

The simple fact of the matter is that the concept of an individual right to own and bear firearms is anything but a modern idea. Those who promote this codswallop are seeking nothing less than to rewrite history to suit their agenda.

The idea that the Second Amendment (2A) protects the right of the states rather than the individual was utterly alien until the 20th century and despite diligent research by many hopeful liberals they could never find the concept ever mentioned until then. To show just how ridiculous the idea that the 2A was meant to allow states to establish a National Guard (an argument offered by several gun control advocates) is, one needs to simply note that it took Congress 130 years to establish the National Guard (from 1787 to 1917).

Just for giggles I'll also cite the late renowned historian Leonard Levy who specialized in the history of basic American Constitutional freedoms and authored several highly regarded books on various parts of the Bill of Rights. In his The Origin of the Bill of Rights Levy unequivocally wrote:

"Believing that the amendment does not authorize an individual's right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights...The very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause. Rather the right is an independent one, altogether separate from the maintenance of a militia. Militias were possible only because the people were armed and possessed the right to be armed. The right does not depend on whether militias exist."

Levy also noted that the state constitutions of the revolution and early national period also acknowledged it as an individual right.

• which firearms are OK to ban and which ones are not
• when the state can reasonably prohibit a citizen from owning a gun and when it cannot
• what requirements the state can place on a person wanting a firearm

Reasonable people can debate and disagree on these issues. But the argument that any gun regulation constitutes "grabbing our guns" is just fear mongering, and serves no-ones interests. This is my primary objection to the NRA: it's myopic focus on protecting "guns rights" using any means possible.

[Teallaura]

Sigh...

The question is really 'can it be regulated'? Pre-incorporation, the answer was 'yes, by the states but not by the Federal government' which eventually morphed into 'well, except in certain cases'. Abolition was possible until incorporation - but would have had to be done state by state. The actual issue with gun control is Federal gun control. The myriad of gun control laws exist only because they are by jurisdiction, not because the Federal government issued them.

Post incorporation, it's murkier by far - what can the Federal government regulate? That's now got to be fought out - and frankly won't begin in earnest until the next party shift (assuming we're looking at Number Six which is debatable).

The Founders were NOT creating an unlimited personal right - which has been the historic Second amendment argument and the reason we debate the thing. Case law and the Federalist papers do not support that argument. The question now, post incorporation, is can the Federal government regulate effectively? Which was the pre-incorporation question. I'm honestly not sure what the Court will do - incorporation may well turn into a double edged sword, cutting opponent and proponent alike.

[carpedm9587]

Sigh...

The question is really 'can it be regulated'? Pre-incorporation, the answer was 'yes, by the states but not by the Federal government' which eventually morphed into 'well, except in certain cases'. Abolition was possible until incorporation - but would have had to be done state by state. The actual issue with gun control is Federal gun control. The myriad of gun control laws exist only because they are by jurisdiction, not because the Federal government issued them.

Post incorporation, it's murkier by far - what can the Federal government regulate? That's now got to be fought out - and frankly won't begin in earnest until the next party shift (assuming we're looking at Number Six which is debatable).

The Founders were NOT creating an unlimited personal right - which has been the historic Second amendment argument and the reason we debate the thing. Case law and the Federalist papers do not support that argument. The question now, post incorporation, is can the Federal government regulate effectively? Which was the pre-incorporation question. I'm honestly not sure what the Court will do - incorporation may well turn into a double edged sword, cutting opponent and proponent alike.

OK - now I need education. What is "incorporation" in reference to this subject? You've used the term several times...and I have lazily glossed over it. I realize now that, without an understanding of this, I cannot truly understand your point.

[Teallaura]

Incorporation is the application of the BoR amendments to the states via the 13th (14th?) amendment.

[carpedm9587]

Incorporation is the application of the BoR amendments to the states via the 13th (14th?) amendment.

14th. The 13th abolished slavery.

[Teallaura]

Yeah, I knew I was gonna get it wrong off the top of my head like that.