What Was The Legal Status Of The Right To Bear Arms BEFORE The Second Amendment?

100 posts / 0 new

Madison is clear in his introduction to his draft for what became the Bill Of Rights that there are different classes of rights. He already believed the Constitution protected Natural Right because the new government was given delegated powers and no more. He believed in that context all retained rights were secure. He also worried to enumerate some rights in a Bill Of Rights wold place the unenumerated rights at risk. Madison also mentions rights he did not believe were Natural Rights but might be desirable given the powers the new government had. He gives the example of a trial by jury. He refers to them as positive rights.

The Bill of Rights is mostly positive rights...rights that need not exist if not for the powers of the new government. The Second falls into this category. The Constitution created the new militia... Congress could set standards and discipline it, but there were fears Congress could disarm its creation. Who might worry? The slave states that used the militia to protect slavery. Those who may have feared the militia might be needed to counter a standing army might also have wanted this protection. And while the Second sounds like it protects an individual right, it's clear from the language itself, a well-regulated militia is central to its meaning.

I'm not one who believes the Second Amendment protects the individual right to own a gun outside the context of this well-regulated militia. If there was a right to own a gun for other purposes such as self-protection, hunting etc... I believe it's protected by the greater Constitution and reaffirmed in the Ninth Amendment... at least that right was protected for The People... the freemen of the day who wrote the Constitution for themselves. Clearly the right to own guns was never intended for slaves any more than were any of the other rights in the Bill Of Rights.

But in District of Columbia v Heller the USSC ruled the Second Amendment protects an individual right to own a gun. Later in McDonald v Chicago, this ruling was applied to the states. If that's the case... what in the minds of these conservative justices was the status of this individual firearm right in those 42 months between the ratification of the Constitution in June 1788, and the ratification of the Bill Of Rights in Dec 1791? The USSC rulings seem to indicate this individual right was NOT protected until the Second was ratified.

Has the USSC has unwittingly undercut the argument that the construction of the Constitution itself protected Natural Rights such as the right to own a firearm for personal protection by the very nature of limited government... and now only enumerated, positive, rights deserve protection? I suspect the Right wing would prefer to bastardize the Second to invent an individual right there than look to the Constitution or the Ninth lest they find those unenumerated rights which the Right loathes: same sex marriage, birth control, abortion etc. As one Right winger once wrote in a discussion... we don't need any more rights than the enumerated ones. This may explain the Right's war on the Ninth. Better to declare it an ink blot on the Constitution rather than the Rosetta Stone to interpret the Constitution... all because they so cherish the Framers and the Constitution itself.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

Comments

Here's Madison's discussing the various forms of rights to be protected :

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.

In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring that the Legislative, Executive, and Judicial branches shall be kept separate and distinct. Perhaps the best way of securing this in practice is, to provide
such checks as will prevent the encroachment of the one upon the other. But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the
abuse of the Executive power, sometimes against the Legislative, and, in
some cases, against the community itself; or, in other words, against the
majority in favor of the minority.

Madison believes those retained Natual Rights were already secure, but added what became the Ninth for greater caution

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

The 2nd amendment.

The second amendment to the constitution had nothing to do with individual rights to own guns. It was all about the right of state militias to be operated within the states.

This was a carefully crafted amendment for stated rights, not personal rights.

I can break this down in part so that each part is made clear.

First of all, it state: “ A well regulated Militia,…
This is talking about an organization set forth by the state and under state statues.

Next: “Being necessary to the security of a free state…
This is to state that each state has some freedom from federal laws toward the militia they form as a state, not individuals, but the state government.

“The right of the people to keep and bear Arms,
Meaning that the rights of the people within the state regulated militias have the rights set forth by the states to keep militia arms and to use them as a show of force when needed.

At the time what was called arms was limited to muskets and swords. When a call to arms was set forth, all men with rifles and swords were to force. Pistols were not part of what they believed as an arm.

Next part:
Shall not be infringed.
Meaning the rights of the federal government to call to arms would not be limited to the federal government, but under those of the states as the states set forth for their militia. And that if the state decided the action was not in the interest of the state, they could withhold their militia from the action.

Nowhere within the 2nd amendment does it give the right for an individual to own a weapon, only to keep and bear them in times of need and only when they are a member of the regulated state militia.

I was a member of the military during the Vietnam ‘war’. I was ‘given’ a weapon and the ammunition for it. When my time was ended for the use of the weapon, it was not mine to keep, but went back into the armory of the military. As did all the ammunition I had not used.

When this amendment was written, many people did not own an “arm” as defined by the times and were ‘issued’ them and the ammunition. In many cases these people were able to “keep” the weapon so that they were ready upon call to service. But when the time came for them to leave that called service, the weapon and ammunition also was recalled.

Also, at the time, both military and civilian rifles were basically the same. The premiere rifle (musket) was a British rifle called the ‘Brown Bess’. It was not only sold as a military weapon, but also to sportsmen. It was NOT an assault weapon, everyone with the money could buy them. The assault weapon of the time was a cannon, by law and money. Only a government could own them.

History does not lie, only the people who tell it.

edcat01's picture
edcat01
Joined:
Apr. 16, 2012 8:20 pm
Quote edcat01:When this amendment was written, many people did not own an “arm” as defined by the times and were ‘issued’ them and the ammunition. In many cases these people were able to “keep” the weapon so that they were ready upon call to service. But when the time came for them to leave that called service, the weapon and ammunition also was recalled.

Actually, when Congress finally fleshed out the constitutional requirement for a militia in the Militia Acts of 1792, militia members were mandated to provide their own weapons and ammunition.

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

http://www.constitution.org/mil/mil_act_1792.htm

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

It does not say "The right of the state to keep and bear arms". It's kind of funny that they wouldn't have stated it that way if the purpose was solely for a state army. There are two sides to the coin. The people can be called forth to protect the government of the people from insurrection and rebellion and the people can be called forth to stave off tyranny from a government against the people. It's all about "We The People". We the people are responsible for both sides of the coin, not just one.

Bush_Wacker's picture
Bush_Wacker
Joined:
Jun. 25, 2011 7:53 am
Quote Bush_Wacker:

It does not say "The right of the state to keep and bear arms". It's kind of funny that they wouldn't have stated it that way if the purpose was solely for a state army. There are two sides to the coin. The people can be called forth to protect the government of the people from insurrection and rebellion and the people can be called forth to stave off tyranny from a government against the people. It's all about "We The People". We the people are responsible for both sides of the coin, not just one.

You're missing the point... or evading it. The question is in the title... what was the legal status of the right to bear arms BEFORE the Second. If Scalia is going to say Heller found a individual right to bear arms in the Second... then there's 3.5 years between the ratification of the Constitution and the Second. Did this right not exist during this time? Or was it merely another Natural Right already assumed to be covered?

As for the People being called forth to stave off tyranny against the government... I'm still waiting for anyone to show me ANY proof this thought was written into any law of the time. It's neither in the Constitution nor the Militia Acts.

Just because some historical figures believed this was a role for the Militia doesn't mean it made it into law. By that standard we can say slavery never existed by only quoting abolitionists.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

The entire first paragraph of your OP is based on your opinion of some historical figures beliefs and how they support your argument. Why do you not allow for anyone responding to do the same?

Slaves were considered property and were not considered people except for where they added value to a state in terms of representation based on population. Property cannot be expected to defend itself and so there is no way that the right to bear arms was meant for slaves. The right for "people" to bear arms in terms of a militia makes pretty clear that every able bodied person has a right to defend themselves , their family, and their neighbors for the good and the security of the state. They are after all a part of the state.

You should quit making your own rules as you go when it comes to a debate. I'm not very good at following rules anyway.

Bush_Wacker's picture
Bush_Wacker
Joined:
Jun. 25, 2011 7:53 am
Quote Bush_Wacker:The entire first paragraph of your OP is based on your opinion of some historical figures beliefs and how they support your argument. Why do you not allow for anyone responding to do the same?
It's not just any historical figure. Madison played a key role in the drafting of the Constitution and the Bill of Rights. His understanding of whether the Constitution protected rights... and which ones, are a tad more relevant here than say Scalia's highly partisan bastardization of the Second.

Anyway you're still evading the question if Heller finds an individual right to firearm ownership in the Second... then what was the status of this right for those 3.5 years BEFORE the Second was ratified?

Slaves were considered property and were not considered people except for where they added value to a state in terms of representation based on population. Property cannot be expected to defend itself and so there is no way that the right to bear arms was meant for slaves. The right for "people" to bear arms in terms of a militia makes pretty clear that every able bodied person has a right to defend themselves , their family, and their neighbors for the good and the security of the state. They are after all a part of the state.

Quote Bush_Wacker:You should quit making your own rules as you go when it comes to a debate. I'm not very good at following rules anyway.
Which is why you seem determined to evade the question... right there in the title of the thread, a thread no one made you join.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

You don't understand. You require "proof" of everyone else's opinion but offer non for your's. If you want "proof" based on the key player of the Constitutions writing then there are many quotes from Madison himself speaking of the importance of guarding against domestic government tyranny. Must they be posted again?

Bush_Wacker's picture
Bush_Wacker
Joined:
Jun. 25, 2011 7:53 am

The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms. "James Madison".

If that doesn't tell you all you need to know about what Madison found important about all Americans having the ability to stand up to their own government then nothing will.

Bush_Wacker's picture
Bush_Wacker
Joined:
Jun. 25, 2011 7:53 am
Quote Bush_Wacker:

You don't understand. You require "proof" of everyone else's opinion but offer non for your's. If you want "proof" based on the key player of the Constitutions writing then there are many quotes from Madison himself speaking of the importance of guarding against domestic government tyranny. Must they be posted again?

So you have no desire to actually address the question asked in the title of this thread?

Yup, Madison in trying to sell the Constitution in Federalist 46 has some thoughts on the Militia. But we never saw that encoded in actual law. On the other hand We DO see Madison's thoughts on Natural Rights encoded into law with the Ninth Amendment. Feel free not to consider that proof of anything... while the ABSENCE of proof of your claim is the opposite?

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote Bush_Wacker:

The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms. "James Madison".

If that doesn't tell you all you need to know about what Madison found important about all Americans having the ability to stand up to their own government then nothing will.

You're STILL evading the question. READ THE TITLE OF THE THREAD AGAIN.

Here's your problem. If this individual right to a firearm is only protected by the Second, then it didn't exist before the Second was ratified. If it DID exist before the Second was ratified it was IMPLICITLY protected by Natural Rights before the B Of Rs was ratified and then by the Ninth. Madison is clear that positive rights vs Natural Rights arise from the fact the Constitution was given powers that might have to be protected against. Since the Constitution created the militia... then a NEW right had to be created to stop Congress from ever disarming it... and last I heard the National Guards have plenty of weapons. Unless you're saying The National Guards can be disarmed but not the People?

But we stray: READ THE TITLE OF THE THREAD AGAIN.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

The early British colonists, imbued with the English distrust for standing military establishments as a threat to civil liberties, incorporated the tradition of the citizen-soldier. In 1636, the first militia unit, the North Regiment of Boston, was formed, followed two years later by the Ancient and Honorable Artillery Company, the oldest American military unit in existence.

One of the first acts of Parliament following the accession of William and Mary to the throne of England as a result of the Glorious Revolution of 1688 was to restore the old constitution with its provision that every man may arm for self-defense.

In 1760, Britain began adopting mercantilist policies toward her American colonies. By 1768, these had produced such hardships and a reversal of the previous prosperity that British troops had to be sent to suppress riots and collect taxes.

Between 1768-1777, the British policy was to disarm the American colonists by whatever means possible, from entrapment, false promises of safekeeping, banning imports, seizure, and eventually shooting persons bearing arms.

By 1774, the British had embargoed shipments of arms to America, and the Americans responded by arming themselves and forming independent militia companies.

On the night of 18 April 1775, General Gage, Governor of Massachusetts, dispatched several hundred soldiers of the Boston garrison under the command of Major Pitcairn to seize the arms and munitions stored by the illegal colonial militias in Concord.

When Pitcairn encountered the Minutemen on the Lexington common blocking his way, he demanded that they throw down their arms and disperse. Although willing to disperse, the Minutemen were not willing to surrender their arms. The rest is history.

Three days after the British retreat from Concord, General Gage refused to allow Bostonians to leave the city without depositing their arms and ammunition with a Selectman at Faneuil Hall, to be returned at a suitable time after their return. When the citizens of Boston foolishly complied, Gage seized the arms and refused to permit their owners to leave the city. ("Declaration of the Causes and Necessity of Taking up Arms," July 6, 1775.)

The news of Gage's seizure of the arms of Bostonians not engaged in hostilities and rumors of British troops sailing from England to seize the arms of the colonists swept the colonies.

The colonists considered these actions a violation of their constitutionally guaranteed right to have and use arms for self-preservation and defense, as indeed they were.

In 1777, William Knox, Under Secretary of State for Colonial Affairs, advocated for the American colonies the creation of a ruling aristocracy loyal to the Crown, the establishment of the Church of England, and an unlimited power to tax. To prevent resistance to these measures, Knox proposed disarming all the people:

The Militia Laws should be repealed and none suffered to be re-enacted & the Arms of all the People should be taken away, & every piece of Ordnance removed into the King's Stores, nor should any Foundry or manufacture of Arms, Gun-powder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without License; they will have but little need of such things for the future, as the King's Troops, Ships & Forts will be sufficient to protect them from danger.

That's the best answer I can come up with to the original question. At some points in time it was considered a natural right to own arms for protection and self defense and for a short time before the revolution it was not seen as a natural right by English Parliament whom at the time ruled the American colonies. If right before the Constitution was written it was known that the right to bear arms was considered not a natural right then I can see why it was explicitly put into the Constitution as it was. That's my opinion. I believe the right lies in both the second and the unenumerated rights of the Constitution.

Bush_Wacker's picture
Bush_Wacker
Joined:
Jun. 25, 2011 7:53 am
Quote Bush_Wacker:

The early British colonists, imbued with the English distrust for standing military establishments as a threat to civil liberties, incorporated the tradition of the citizen-soldier. In 1636, the first militia unit, the North Regiment of Boston, was formed, followed two years later by the Ancient and Honorable Artillery Company, the oldest American military unit in existence.

One of the first acts of Parliament following the accession of William and Mary to the throne of England as a result of the Glorious Revolution of 1688 was to restore the old constitution with its provision that every man may arm for self-defense.

In 1760, Britain began adopting mercantilist policies toward her American colonies. By 1768, these had produced such hardships and a reversal of the previous prosperity that British troops had to be sent to suppress riots and collect taxes.

Between 1768-1777, the British policy was to disarm the American colonists by whatever means possible, from entrapment, false promises of safekeeping, banning imports, seizure, and eventually shooting persons bearing arms.

By 1774, the British had embargoed shipments of arms to America, and the Americans responded by arming themselves and forming independent militia companies.

On the night of 18 April 1775, General Gage, Governor of Massachusetts, dispatched several hundred soldiers of the Boston garrison under the command of Major Pitcairn to seize the arms and munitions stored by the illegal colonial militias in Concord.

When Pitcairn encountered the Minutemen on the Lexington common blocking his way, he demanded that they throw down their arms and disperse. Although willing to disperse, the Minutemen were not willing to surrender their arms. The rest is history.

Three days after the British retreat from Concord, General Gage refused to allow Bostonians to leave the city without depositing their arms and ammunition with a Selectman at Faneuil Hall, to be returned at a suitable time after their return. When the citizens of Boston foolishly complied, Gage seized the arms and refused to permit their owners to leave the city. ("Declaration of the Causes and Necessity of Taking up Arms," July 6, 1775.)

The news of Gage's seizure of the arms of Bostonians not engaged in hostilities and rumors of British troops sailing from England to seize the arms of the colonists swept the colonies.

The colonists considered these actions a violation of their constitutionally guaranteed right to have and use arms for self-preservation and defense, as indeed they were.

In 1777, William Knox, Under Secretary of State for Colonial Affairs, advocated for the American colonies the creation of a ruling aristocracy loyal to the Crown, the establishment of the Church of England, and an unlimited power to tax. To prevent resistance to these measures, Knox proposed disarming all the people:

The Militia Laws should be repealed and none suffered to be re-enacted & the Arms of all the People should be taken away, & every piece of Ordnance removed into the King's Stores, nor should any Foundry or manufacture of Arms, Gun-powder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without License; they will have but little need of such things for the future, as the King's Troops, Ships & Forts will be sufficient to protect them from danger.

That's the best answer I can come up with to the original question. At some points in time it was considered a natural right to own arms for protection and self defense and for a short time before the revolution it was not seen as a natural right by English Parliament whom at the time ruled the American colonies. If right before the Constitution was written it was known that the right to bear arms was considered not a natural right then I can see why it was explicitly put into the Constitution as it was. That's my opinion. I believe the right lies in both the second and the unenumerated rights of the Constitution.

That's a great post Bush_Wacker.

mjolnir's picture
mjolnir
Joined:
Mar. 3, 2011 12:42 pm

you are reading way to much into things Pierpont. The right to keep and bear arms is a right of free person. under the constitution the federal government only has 18 jobs it can legally do. inorder to prevent overstep by the federal government they added the ten amendments. these amendments clarified and secured the rights they found most important, as well as protect others not named from the federal government. that was the reason for the 9th and the 10th to keep the feds doing those enumerated 18 jobs and nothing more.

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote mjolnir:That's a great post Bush_Wacker.

Except that colonial or British law had no legal standing on the federal level. Hell, the Constitution overturned the Articles. The constitutional militia was starting from scratch even if it used older models.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote Bush_Wacker:That's the best answer I can come up with to the original question. At some points in time it was considered a natural right to own arms for protection and self defense and for a short time before the revolution it was not seen as a natural right by English Parliament whom at the time ruled the American colonies. If right before the Constitution was written it was known that the right to bear arms was considered not a natural right then I can see why it was explicitly put into the Constitution as it was. That's my opinion. I believe the right lies in both the second and the unenumerated rights of the Constitution.

The militias were long standing traditions though for often for different reasons. None of the previous laws legally matter since the Constitution started essentially a new Militia from scratch.

As for an individual right, the English Bill Of Rights 1869 has been cited here as if English law has standing. If one reads it http://avalon.law.yale.edu/17th_century/england.asp one can see at once it can NOT legally apply to Americans... and its mention of weapons is to protect Protestantism against Catholics."That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;" So this right does NOT seem to apply to all The People.

I suspect you're falling into the trap that rights have to be written down to be protected. The concept of Natural Rights is too expansive and no exhaustive list can be made... the list would be as infinite as the number of choices free people have... minus whatever they surrender when delegating powers to government. No doubt it would include property and self-protection.

The question is did Americans give up the right to overthrow their government when the ratified the Constitution which called for peaceful transitions of power though elections, the courts, and checks & balances? We see the new government given the power to suppress insurrections. What we do NOT see is any right for individuals or the well-regulated militia, to be free to attack the federal government... even if it's taken over. There's no legal mechanism for determining this or to seize control of the Militias if federalized. It might be reserved as a states right... unless that right was also surrendered in ratifying the Constitution. If the states retained that right, where is it in their constitutions?

BTW, the Second uses the word "state" instead of nation. In the past I've thought it state = nation... but if the theory is correct that the slaves states feared Congress could disarm their militias to undermine their ability to keep slaves in line, the "state" makes sense.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote firearm owner:The right to keep and bear arms is a right of free person.
Ever hear me say different? But it was never meant for all adults. The term "the People" SOUNDS all inclusive, but it never included slaves... even if Capital1 thinks it did. But if this is a Natural Right, it's different from the right in the Second which is clearly about not disarming a well-regulated militia.

under the constitution the federal government only has 18 jobs it can legally do. inorder to prevent overstep by the federal government they added the ten amendments. these amendments clarified and secured the rights they found most important, as well as protect others not named from the federal government. that was the reason for the 9th and the 10th to keep the feds doing those enumerated 18 jobs and nothing more.

You are so naive. Borrowing money is a "job"? Do you seriously think to "constitute Tribunals inferior to the supreme Court" takes up much of Congress's time? How about calling up the Militia?

The federal government had a much BROADER mission your right wing tunnel vision blinds you to. It's again there in the Preamble... and at the beginning of Article 1. The government was created to both promote and provide for the General Welfare... and that is pretty open ended, left for each generation to define. Madison obviously found a power somewhere in the Constitution that in the very first days of the very First Congress he proposed taxing sailors to provide government hospitals for disabled seamen. Oops, it's only 1791 and we're up to job 19? The common defense is also open to interpretation. Where else is there any constitutional authority for the US to maintain a world wide military empire?

As for overstepping, the Second is clear the federal government can not disarm the militia it created. Nothing more. It's not a grant of power to the Militias to be an armed counterweight to the federal government. You've been given ample chance and have found NOTHING in law that permits that. Those militias were ALWAYS meant to be under tight civil control.

Any INDIVIDUAL right to own a firearm for self-protection, hunting, recreation, is covered by the Ninth... which as a natural right was already covered by the construction of the Constitution itself... at least for freemen.

Of course if you believe the individual right to own a firearm comes from the Second... then where was it before the Second was ratified?

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

where is the right to own pants? its not on the constitution so it must not be a right. back when the constitution was wrtten. everybody owned an assualt weapon. just like you own pants. i never said that the second allows you to own weapons i have always said you cant take them away because of the second. also tge second was in there so that the citizens would have protection against all enemies to the constitution foreign and domestic if you want to believe it or not, some of the founders even stated that the right to own weapons was to keep the feds from becoming tyranical.

firearm owner
Joined:
Jan. 18, 2013 9:52 am

Seriously... Another Thread, Your tenacity is impressive

Capital1's picture
Capital1
Joined:
Jul. 31, 2012 7:38 am

Please God, keep this topic alive for another 16 months.

Redwing's picture
Redwing
Joined:
Jun. 21, 2012 5:12 am
Quote Capital1:

Seriously... Another Thread, Your tenacity is impressive

Hey, I did start a thread just for you on another topic

http://www.thomhartmann.com/forum/2013/01/yikes-bill-rights-was-meant-in...

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote firearm owner:where is the right to own pants?
Apparently the idea of unenumerated natural rights escapes you no matter how many times it's explained.

Quote firearm owner:back when the constitution was wrtten. everybody owned an assualt weapon. just like you own pants.

No, the government MANDATED even those who DID NOT WANT a firearm to get one... buy one if necessary. Why aren't you protesting this government mandate as you are Obamacare?

Quote firearm owner: never said that the second allows you to own weapons i have always said you cant take them away because of the second.
You've said so many things who knows anymore. But the Second IS ABOUT THE MILITIA.

Quote firearm owner:also tge second was in there so that the citizens would have protection against all enemies to the constitution foreign and domestic if you want to believe it or not, some of the founders even stated that the right to own weapons was to keep the feds from becoming tyranical.

Don't show me quotes of what may NEVER have made it into law. SHOW ME THE LAWS THAT PERMIT THIS. How many f***ing times do I have ask you to back this claim? All you ever, Ever, EVER do is keep repeating it. There are intelligent gun nuts here. You're definitely not one of them.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote Redwing:

Please God, keep this topic alive for another 16 months.

How many off topic, substance-free posts in a row is it?

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

you will not believe it but it is the second amendment. can you show me a law that permits revolution.

the second amendment says that the peoples right to keep and bear arms shall not be infringed is the militia a person?

here is a situation. obama is president he enjoys a super majority in both houses of congress and has appointed judges that will not oppose him. he pushes threw a bill or executive order that suspends federal elections making himself ruler for life. being the comander and cheif of the military does he order the military to take him out of power? or do the people have to do it themselves. how is this accomished? under what law can they fight back?

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote firearm owner:

you will not believe it but it is the second amendment. can you show me a law that permits revolution.

Then why do most you gun nut extremists claim this is what the Second protects?

Quote firearm owner:the second amendment says that the peoples right to keep and bear arms shall not be infringed is the militia a person?
Gee Einstein... WHO OWNED THOSE GUNS AFTER THE GOVERNMENT MANDATED MILITIA MEMBERS BUY THEM? Technically THESE GUNS WERE PRIVATE PROPERTY.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

you keep saying that the second was about the militia and as such the government can limit what you buy and or take it away. if the second is about the militia what do we need the militia for? if you are honest, one reason isto keep the federal government from turning into a kingdom and abolishing our rights. but that might be to complicated for you to understand especially coming from a conservative. we are all mouth breathing knuckle dragers right.

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote firearm owner:here is a situation. obama is president he enjoys a super majority in both houses of congress and has appointed judges that will not oppose him. he pushes threw a bill or executive order that suspends federal elections making himself ruler for life. being the comander and cheif of the military does he order the military to take him out of power? or do the people have to do it themselves. how is this accomished? under what law can they fight back?

More of your Red Dawn wet dream fantasies? Leaving aside the probability the military would refuse to obey unlawful orders, SHOW ME THE LAW THAT PERMITS THE MILITIA TO TAKE ON THIS ROLE?

I'll follow the evidence if it's credible. What's the legal mechanism under which the state National Guards would be able to take on the military defending a dictator? I've asked others countless times... I've even started a thread asking if it could be a 10th amendment right. NO ONE has found any such state law. I've asked you 102 times now... and nothing.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote firearm owner:

you keep saying that the second was about the militia and as such the government can limit what you buy and or take it away.

If you can't comprehend English, don't make up stuff and attribute it to me.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote edcat01:

When this amendment was written, many people did not own an “arm” as defined by the times and were ‘issued’ them and the ammunition. In many cases these people were able to “keep” the weapon so that they were ready upon call to service. But when the time came for them to leave that called service, the weapon and ammunition also was recalled.

Also, at the time, both military and civilian rifles were basically the same. The premiere rifle (musket) was a British rifle called the ‘Brown Bess’. It was not only sold as a military weapon, but also to sportsmen. It was NOT an assault weapon, everyone with the money could buy them. The assault weapon of the time was a cannon, by law and money. Only a government could own them.

History does not lie, only the people who tell it.

Interesting.

Could you please provide sources for the above highlighted assertions?

For the first assertion either a primary or secondary source will do, but for the second could you pleas provide a primary source?

Nevermind, on closer inspection you seem to just be parroting the fradulent assertions of now disgraced historian hack Bellesiles

JoyceFinnigan's picture
JoyceFinnigan
Joined:
Jan. 10, 2012 8:40 pm
Quote Pierpont:
Quote firearm owner:here is a situation. obama is president he enjoys a super majority in both houses of congress and has appointed judges that will not oppose him. he pushes threw a bill or executive order that suspends federal elections making himself ruler for life. being the comander and cheif of the military does he order the military to take him out of power? or do the people have to do it themselves. how is this accomished? under what law can they fight back?

More of your Red Dawn wet dream fantasies? Leaving aside the probability the military would refuse to obey unlawful orders, SHOW ME THE LAW THAT PERMITS THE MILITIA TO TAKE ON THIS ROLE?

I'll follow the evidence if it's credible. What's the legal mechanism under which the state National Guards would be able to take on the military defending a dictator? I've asked others countless times... I've even started a thread asking if it could be a 10th amendment right. NO ONE has found any such state law. I've asked you 102 times now... and nothing.

I've read the Constitution many times. It is written as a rule book for the government, not the people outside of the government. There are no implied rules or laws in place that are required of anyone outside of government. Congress is given the power to write laws but the Constitution itself doesn't. The restraints implied by the Constitution are directed toward the government itself. There will always be a mandate for people to do what is right. If defending the Constitution is the right thing to do then it should be done by necessary means. Your arguments are the exact reason that many of the founders didn't want to enumerate certain rights. You seem to think that if the right isn't enumerated then it isn't there for your particular argument. There need not be a law or a "right" to oust a tyrannical body of government. On the contrary, it would be the American thing to do.

Bush_Wacker's picture
Bush_Wacker
Joined:
Jun. 25, 2011 7:53 am

I invite any and all of the participants in this thread to review it with attention to the formal argument being made about "rights" instead of any concern about the 2nd. I hope we will be able to agree that the "rights" framework fails to resolve the moral and ethical realities involved in this question, and that the 2nd Amendment not only does not directly address the issue of personal protection as a "right," it reflects the weaknesses of the Age of Reason along with the strengths of that time.

What the Founders shared as men of their times was an excitement at what Reason and Conscience could mean as the counter to Royalism and Theocracy where Obedience rather than Independent though and conscience spelled "responsibility." We celebrate that rejection of top/down authoritarianism as we proclaim "all persons being created equal" and "we, the people," as we embrace the duty to govern ourselves as a free people. We are committed to democracy instead of the rule of the "optimates" or "elites" who declare their own superiority. If we are to elect "our leaders, they will be accountable to "us" and not to the "principalities and powers of this world."

What the gave us in the Constitution was remarkable for its time, but has shown a lot of wear and tear in practice and as modified by crap like 'filibusters.' Democracy has shown some sleek newer models, and we need to appreciate instead of blaming the Founders for not seeing way beyond their time and place. We can find a whole lot of folks to blame for not caring for their legacy. We can see how our narcissism and vainglory has led us to the folly of Empire in the narrative of the New Rome. There can be no democracy and no republic in an Empire. The Constitution cannot be blamed for the American Empire. Nevertheless, it was not able to prevent it and did much to facilitate elite advantages over "the mob."

We can trust democracy a lot more than the Founders did.

BUT, we also have to appreciate the epistemological distance between then and now. The Founders were in love with the Age of Reason and thinking. They were not so far out of the past that they could conceive of a world without those obligations and the coherence felt about the moral responsibilities of society. Schizoid for slaveowners, but the idea of "Rights" and Nature as being a rationally coherent reality construct was part of their new scientific sense of the world. How to square their philosophy with their society was another matter.

We have seen Logical Positivism run its course. The Mystery of Reality leaves us not quite getting it into words or "names." Truth winds up being paradoxical and tautological and not linear and literal. Even if there is an Objective Reality out there, we cannot know it as it is and only in part. To treat the Constitution as if these words were objectively available to us is to become hermeneutical fundamentalists. It does not work with the Bible, so why would it do better with the Founders? We have to bring our A Game to both and allow the Spirit to guide us.

Jaroslav Pelikan said that "traditionalism is the dead faith of the living, but tradition is the living faith of the dead." You don't have to get religious to appreciate how we relate to our tradition. You do, however, need to appreciate that much has been read into the words of the Founders in this discussion of the 2nd, and that taking responsibility for our interpreting comes with the task.

I think that "rights" are a bit too definitional and linear to answer all the issues of moral and ethical reality. I question the interior distinctions at many points, allowing that there are basic aspects of our nature as human beings as opposed to social conventions of equal access involved. Justice needs a spark of the heart as well as the well-tempered clavier of the mind. Love is a power we tend to discount as we look 'objectively and dispassionately' at matters of logic. Do not misunderstand, what we repress does not go away or stay in its closet. What comes back, however, is not "love" or "justice." They have very dark shadows.

What seems abundantly obvious is that the Founders like citizen soldiers and thought that "self-defense" was ok. How that means assault weapons of war in the hands of citizens who do not demonstrate the maturity and care to operate them is another matter. I would suggest stepping back from the text and taking a deep breath. Democracy is worthy of greater respect.

drc2
Joined:
Apr. 26, 2012 12:15 pm
Quote Bush_Wacker:

I've read the Constitution many times. It is written as a rule book for the government, not the people outside of the government. There are no implied rules or laws in place that are required of anyone outside of government.

Sure there are. It might not be explicit IN the Constitution which is probably why you didn't see it... or it slipped right past you. If the Constitution is a government of delegated powers, then the People (and states) DO surrender some rights to create it hoping it will better protect rights, provide for the common defense and general welfare more than if the government was not created.

Just one quick example. If the People "grant" the power of taxation to government, and the ability to enforce laws made, they then lose the right to refuse to pay taxes. If the Constitution was given the power to create a militia, then the people lose the right not to be in one.

Quote Bush_Wacker:Congress is given the power to write laws but the Constitution itself doesn't. The restraints implied by the Constitution are directed toward the government itself.
Generally but the Constitution does require tolerance from the People... say if their side loses an election as well as acceptance of the laws passed. There IS a need for a civil culture. The system doesn't work if we're all Tim McVays.

Quote Bush_Wacker:There will always be a mandate for people to do what is right. If defending the Constitution is the right thing to do then it should be done by necessary means. Your arguments are the exact reason that many of the founders didn't want to enumerate certain rights. You seem to think that if the right isn't enumerated then it isn't there for your particular argument.

We've been through this how many times and you STILL don't understand my position on unenumerated Natural rights? They can't be listed because they are virtually as infinite as human choice. But the People did NOT retain all rights. Some were surrendered... and if the government is given the power use the Militia to suppress insurrections, and the power to tightly control that militia when federalized... then the counterpart to this is some surrender of rights by the People to go outside the system to change it. Just read the Militia Acts to see how much insurrection would be tolerated.

The reason you STILL can't make your case there was some LEGAL role for the constitutional militias to unseat a tyrant is because there doesn't seem to be any LEGAL mechanism for this to happen. It's not in the Constitution, the Second, or the Militia Acts. If it's reserved to the states, then it should be in their state constitutions. Fine, show me.

This has been going on for a MONTH now... and still no one can point to a single law from this time period?

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

What do you want to say the people have the right to overthrow a tyranical government if needed? if that is what you are looking for you are not going to fibd it in law any where ever, it was in the declaration of independence but that is not law.

you never did show me the law that makes revolution possible.

if the military did refuse his orders they are no longer the military they are organized cilivians acting outside of government control.

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote firearm owner:also tge second was in there so that the citizens would have protection against all enemies to the constitution foreign and domestic if you want to believe it or not, some of the founders even stated that the right to own weapons was to keep the feds from becoming tyranical.

So did the Second protect the rights of slaves to be armed and fight against what was a tyrannical government? At least it was tyrannical as far as they were concerned. After all, slavery was explicitly protected in the Constitution and for the first time slave owners go even go into free states to reclaim runaway slaves.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote firearm owner:you never did show me the law that makes revolution possible.

So you're now retracting your previous claim the Declaration of Independence was law and still in effect? You remember that post... when you quoted the D o I and said it was in the Constitution. I'll find it if you like.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

no i am not saying the declaration was law but i did maje a mistake and said that one line from it was in the constitution.

what kind of law do you want?

firearm owner
Joined:
Jan. 18, 2013 9:52 am

sure if they could gather enough guns and people to fight for their freedom.

again what do you want the law to say, under this law on this date we authorize the people to over throw the government if it becomes tyranical?

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote firearm owner:

sure if they could gather enough guns and people to fight for their freedom.

You really need to get off your goddamn phone and learn to quote what people are saying. I have no idea if you're responding to me. If you are you're claiming the Framers intended slaves to have the MORAL right to be armed and throw off their oppressors even if THEY were a key part of that oppression? Amusing.

Quote firearm owner: again what do you want the law to say, under this law on this date we authorize the people to over throw the government if it becomes tyrannical?

Isn't that what Gun Nuts claim for the Second? Should I look for YOUR posts where you claimed the same thing? Or are you denying you even made such a claim? You might have... my memory is poor. But I suspect you want it both ways. There IS a right and there's none.

As for slaves the Constitution ALREADY WAS TYRANNICAL. So either you're saying "the People" never meant "everyone"... and therefore there never was any universal, or natural right, to own a gun under the Second. Or that we already have here an example of where the Framers did NOT want some people to have the right... even a moral right, to be armed and take on their oppressors. But according to you they at least did want WHITE people to have that right. Even then, there's no law allowing it such rebellion.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

While I believe the right to own a firearm was a unenumerated right already protected by the Constitution... at least for freemen... this raises a secondary question: what was the status of any militia right not to be disarmed before the Second was ratified?

Madison argues in his introduction to the draft bill of rights in Congress there are other types of rights. For instance a right to a trial by jury could NOT be considered a natural right because it existed in a context of a government. In this light I'd argue any right the militias could not be disarmed was a NEW right created to prevent any abuse of power made possible by the very creation of the Constitution. It could not be considered a natural preexisting right since it was the Constitution itself that created these new constitutional militias.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm
Quote Pierpont:
Quote firearm owner:

sure if they could gather enough guns and people to fight for their freedom.

You really need to get off your goddamn phone and learn to quote what people are saying. I have no idea if you're responding to me. If you are you're claiming the Framers intended slaves to have the MORAL right to be armed and throw off their oppressors even if THEY were a key part of that oppression? Amusing.

yes most of them did want slavery to end but they understood that they would never get the constitution past if they did not have some compromise on slavery.

Quote firearm owner: again what do you want the law to say, under this law on this date we authorize the people to over throw the government if it becomes tyrannical?
Quote Pierpont:Isn't that what Gun Nuts claim for the Second? Should I look for YOUR posts where you claimed the same thing? Or are you denying you even made such a claim? You might have... my memory is poor. But I suspect you want it both ways. There IS a right and there's none.

As for slaves the Constitution ALREADY WAS TYRANNICAL. So either you're saying "the People" never meant "everyone"... and therefore there never was any universal, or natural right, to own a gun under the Second. Or that we already have here an example of where the Framers did NOT want some people to have the right... even a moral right, to be armed and take on their oppressors. But according to you they at least did want WHITE people to have that right. Even then, there's no law allowing it such rebellion.

Yes I have claimed and so did the founders of this nation that they people have a right to overthrow a tyrannical government. Yes slaves were not given the same treatments under the constitution however a large number of framers wanted that to change and figured it would die out on its own in time anyway. However there were several slave uprisings and revolts trying to secure their freedom. They were all put down by force but it did raise a lot of questions and debate. Especially with the slave owners as they would lose lots of slaves in these uprisings. Harriet Tubman has said that she could have freed more slaves if she could have convinced them they were slaves. The uprisings would have been more successful if they all would have joined in and had fire arms.

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote Pierpont:

We've been through this how many times and you STILL don't understand my position on unenumerated Natural rights? They can't be listed because they are virtually as infinite as human choice. But the People did NOT retain all rights. Some were surrendered... and if the government is given the power use the Militia to suppress insurrections, and the power to tightly control that militia when federalized... then the counterpart to this is some surrender of rights by the People to go outside the system to change it. Just read the Militia Acts to see how much insurrection would be tolerated.

See this is where you are incorrect the person still retains all of their rights, they have hired the federal government to do the work necessary to protect and expand those rights but you never surrender them. Think of the pact with the federal government similar to the relationship between you and your lawyer when you give him limited power of attorney. He is authorized to make some decisions but ultimately you are still the one with the rights.

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote Pierpont:

Hey, I did start a thread just for you on another topic

http://www.thomhartmann.com/forum/2013/01/yikes-bill-rights-was-meant-in...

Sorry, I'm in the middle of a full blown politcal war with the new city council trying to save the last festival our city does.

I'll take a look.

Capital1's picture
Capital1
Joined:
Jul. 31, 2012 7:38 am
Quote firearm owner:
Quote Pierpont:

We've been through this how many times and you STILL don't understand my position on unenumerated Natural rights? They can't be listed because they are virtually as infinite as human choice. But the People did NOT retain all rights. Some were surrendered... and if the government is given the power use the Militia to suppress insurrections, and the power to tightly control that militia when federalized... then the counterpart to this is some surrender of rights by the People to go outside the system to change it. Just read the Militia Acts to see how much insurrection would be tolerated.

See this is where you are incorrect the person still retains all of their rights, they have hired the federal government to do the work necessary to protect and expand those rights but you never surrender them. Think of the pact with the federal government similar to the relationship between you and your lawyer when you give him limited power of attorney. He is authorized to make some decisions but ultimately you are still the one with the rights.

You are clueless. Under the theory of our system, some rights are surrendered to grant powers to the government. This is why Madison refers to the natural rights protected by the Ninth Amendment as RETAINED RIGHTS.

In his draft of what became the Ninth Madison wrote:

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."

There is a direct correlation between grants of power from the People to the government and the rights the People retain. Madison feared if unenumerated rights were not protected, it would seem as if the powers of government were enlarged.

Rights created to protect us from the power of the new government are positive rights. They do NOT exist in nature. They exist ONLY because of the scope and power of the then new government. Madison describes the difference:

"In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

So AGAIN I bring up the simple concept of taxation. If the People grant the power of taxation to the government to provide for the general welfare and common defense... they give up any right to that money, our property, used to pay those taxes.

Any of this gettin' through yet Einstein?

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

personal attacks prove you already lost but here goes, i i try and shed some light ob the darkness. Madison referred to the rights we the people allow the government as delegaled not surrendered. even under the taxation example you keep giving those are delegated powers we the people are saying we want this government to provide for the common defense so we do not have to ourselves. we the people can over turn or take back those delegated rights any time we all agree to do so.

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote firearm owner:personal attacks prove you already lost
No... baseless claims and your REFUSING to post ANY credible sources to support those claims, not to mention your evasion, is proof you're not the brightest bulb in the lamp store.

Quote firearm owner:but here goes, i i try and shed some light ob the darkness.
Please do professor.

Quote firearm owner: Madison referred to the rights we the people allow the government as delegaled not surrendered.

I was hoping you'd speak English. Care to try again?

Quote firearm owner:even under the taxation example you keep giving those are delegated powers we the people are saying we want this government to provide for the common defense so we do not have to ourselves. we the people can over turn or take back those delegated rights any time we all agree to do so.
Do you even know what a delegated right is? Its a delegated POWER... not a right. And pray tell how can we the People take back these "delegated rights" that don't exist? If you mean delegated powers... SURE... but only through the system itself. While elections might minimize the government exercise of a power, the only way to ABOLISH a constitutional government power is through an amendment. Yup, seems "the People" surrendered the right to to reform government to what is essentially a reform-proof amendment process.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

the repelling of prohibition. yep we took the delegated power over are right to drink back from the government. even in the madison quote you posted he said the rights were delegated to the government not surrendered.

so if the rights do not exist how did we delegate them to the government?

keep calling me professor or einstien i know you are saying that because you know i am smarter than you.

firearm owner
Joined:
Jan. 18, 2013 9:52 am
Quote firearm owner:

the repelling of prohibition. yep we took the delegated power over are right to drink back from the government. even in the madison quote you posted he said the rights were delegated to the government not surrendered.

so if the rights do not exist how did we delegate them to the government?

keep calling me professor or einstien i know you are saying that because you know i am smarter than you.

I said DELEGATED RIGHTS don't exist. YOU are the one who can't even get straight that POWERS are delegated NOT rights. To borrow from a court decision United Public Workers v. Mitchell:

"The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people."

When the People delegate powers to government, at least in our system, they surrender some rights. One can play the game whether these rights still exist but are merely suspended. The net effect is they are gone.

Ya, you're a regular Einstein. Let me guess... you're 14? Perhaps you're our old buddy, the kid who called himself CollegeConservative.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

In the existential reality of now, our 'right' to defend ourselves against dangerous people with weapons of war gets run over by the crowd screaming about their "rights" to own a gun being as close to absolute as you can get. It is like we were born with guns.

What is also failing is the argument about "rights" as we quibble about natural, delegated, regulated, civil and human. I have a lot of respect for the human and civil rights approach to civil justice, but I think we need to get to the nub of our conflict instead of erecting this abstract 'right' to be a danger to others.

It is absurd to pin our present public policy responses to gun culture and mass killings on the Slave Patrols of the South or any theory of militia v. standing army related to individual weapons possession regulations. Banning weapons of war from civilian life seems a modest step. Requiring registration is also closer to common sense than any threat to gun ownership. Whatever "rights" are involved do not have the gravitas of liberty or justice. They belong to equal access for citizens to what we all get to do and be, not to some check and balance against government established in our Constitution.

drc2
Joined:
Apr. 26, 2012 12:15 pm
Quote Pierpont:
Quote mjolnir:That's a great post Bush_Wacker.

Except that colonial or British law had no legal standing on the federal level. Hell, the Constitution overturned the Articles. The constitutional militia was starting from scratch even if it used older models.

http://www.thomhartmann.com/forum/2013/01/what-was-legal-status-right-be...

Quote Pierpont:[...]Sure there are. It might not be explicit IN the Constitution which is probably why you didn't see it... or it slipped right past you.[...]

http://www.thomhartmann.com/forum/2013/01/what-was-legal-status-right-be...

Bush_Wacker said it best:

Quote Bush_Wacker:[...]You require "proof" of everyone else's opinion but offer non for your's. [...]

everything about the 9th is implicit not explicit. That very lack of specificity means that SOMEONE has to interpret it's meaning, and like it or not, that someone is sCOTUS. More often than not, at least in it's present iteration, sCOTUS takes an "originalist" stance. I've posted this before in our discussions but I'll do it once more so you can again turn a "blind eye" to it:
http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Consti...

Quote Professor Laurence Tribe:[...]It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.[8][...]

[8]:
Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998).

I, admittedly a "layman", rarely agree with Tribe about anything but here I think he's spot on.

From Heller pages (26-27) :
"Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee— it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation."

The 2nd guaranteed (codified) a pre-existing individual right as a counter-balance to the Federal plenary power to organize the collective. My opinion.

This is law (Heller) and sCOTUS used historical and contexual sources to reach the decision wether you, or I, or anybody, likes it or not.

mjolnir's picture
mjolnir
Joined:
Mar. 3, 2011 12:42 pm
Quote mjolnir:
Quote Bush_Wacker:[...]You require "proof" of everyone else's opinion but offer non for your's. [...]

everything about the 9th is implicit not explicit. That very lack of specificity means that SOMEONE has to interpret it's meaning, and like it or not, that someone is sCOTUS. More often than not, at least in it's present iteration, sCOTUS takes an "originalist" stance. I've posted this before in our discussions but I'll do it once more so you can again turn a "blind eye" to it:
http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Consti...

I responded to BW on that point. Some historical quotes are irrelevant because those ideas were not preserved in law. Other ideas were. To present any historical quote as "proof" it is the intent of the Constitution is laughable. By that standard we can "prove" the US is a Christian nation even of the Constitution is entirely secular. Others, like Cap, play the game pretending the Bill Of Rights was intended to include slaves.

As for the Ninth, as you might have gathered by now I'm more of a Ninth absolutist... at least from the vantage of original intent. No, I don't believe the current USSC is. Justices like Scalia use Originalism as their figleaf to DENY rights else he, and the Borks of the world would NOT be so eager to dismiss the Ninth as meaningless. While its language may seem implicit in not enumerating rights, it's intent is not. One can call it a rule of construction if one wants... that it preserves for the People the presumption of liberty over government power. But for various reasons, and unlike the Tenth, it was neglected because the federal government was a lesser player in preserving rights than the states, and the states were not subject to the Ninth at least not until nearly a century later. So where was the rich caselaw that fleshed out the Ninth? It didn't exist. And by the time the courts had to rule on such issues, they were timid decisions and often ruled in favor of government power over rights.

Which brings us to today. Do we try and salvage the Ninth... the core protection we have for unenumerated rights? Or do we give up? You seem to not give a damn... as long as your precious gun rights can be invented elsewhere... such as in the Second. Which brings me back to a point I've made before. Gun Nuts have done the nation a great disservice by foisting on the nation the hoax the Second was the protector of gun rights outside the militia. In doing so they put even another nail in the coffin of the Ninth. Of course the right wingers on the court jumped at the chance to find the right in the Second for political reasons. They certainly don't want to elevate the Ninth... but instead want to bury it.

Pierpont's picture
Pierpont
Joined:
Feb. 29, 2012 2:19 pm

Currently Chatting

It’s Time for Bill O’Reilly to Get Real about White Privilege

It’s time for white America to get real about white privilege. Last night, Bill O’Reilly came from back vacation early to host a special edition of “The Factor”, one that he said would “tell the truth” about what’s going on in Ferguson, Missouri.

Powered by Pressflow, an open source content management system