Negative Rights/ The Bill of Rights

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Today Thom was talking about the bill of rights as negative rights, to limit what the gov. can do. I am assuming he means all ten of them? I couldn't agree more.

So why is it so hard for him to accept the rights of people to own guns as a fundamental concept. I truley believe that the placement of this amendment tells us all we need to know about the Founders intention.

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forgotten_man
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another way of looking at this issue could be "those who would sacrifice liberty for temporary safety, deserve neither liberty nor safety".

weather you agree with the second amendment granting individual rights or not, you do have to admit that owning guns is a liberty.

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forgotten_man
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Quote forgotten_man: I am assuming he means all ten of them? I couldn't agree more.
What "ten" rights? Some rights are enumerated but the REAL intent of the Constitution is to protect ALL rights, including those which were not enumerated. Granted these guarantees were not originally intended for everyone. The People sounds all inclusive but the People never meant everyone… and the systematic erosion of those rights continues.

So why is it so hard for him to accept the rights of people to own guns as a fundamental concept. I truly believe that the placement of this amendment tells us all we need to know about the Founders intention.
I don't know about Thom. I'm a gun owner and I don't believe my right comes from the Second. I belong to no militia. I believe my right come comes from the Ninth. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Because THESE rights were never specified, they have been swept under the rug and even you don't seem to believe they exist when you mention only ten. This was Madison's greatest fear in having a Bill Of Rights.

The Ninth has been swept under the rug and neither Party wants to open this Pandora's Box. For instance is the Right to Choose protected by the Ninth? Social conservatives seem to instinctively avoid the Ninth even though it's a Rosetta Stone of sorts to interpret the Constitution. Bork famously said it's like an ink blot on the Constitution beneath which we'll never know the Framer's intent. Nonsense. Scalia's interpretation is even more radical. He believes only enumerated rights are protected... and if that means he has to bastardize the Second to find a personal right to own a gun, that's fine. He also believes government isn't restricted to the powers granted it in the Constitution but can do anything not prohibited.

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Scalia also believes in the state's right to execute innocent, known and proved innocent citizens. Their only right [seems to overlook life as being a right] is to a trial. Killing citizens occassionally helps maintain order. Like Saudi amputations based on accusations, guilty or innocent, doesn't matter.

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If you haven't seen Bowling For Columbine, I highly recommend it. Michael Moore points the finger at root causes of gun violence in this country and why our per capita numbers look SO different from Canada -- a country which, like the U.S., also has a strong hunting tradition, a "Wild West" tradition, and a high level of gun ownership among the populace.

And don't miss his 2003 Oscar acceptance speech, given in solidarity with the other Documentary nominees, if you want to see what pushback against "cowboy diplomacy" looks like. I think history has vindicated this speech beyond a shadow of a doubt.

http://www.youtube.com/watch?v=fc2dMHNk-1Q

OK, switching perspective: "Right to bear arms" -- can you own and brandish ANY weapon, or are there limits to this? I am glad that Wal-Mart isn't selling full auto AK-47's or RPG's.

Thom often brings up that central to this debate (at the time) was the question of whether the U.S. should have a "standing army." Maybe someone could expound upon this.

think_r
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i believe the term militia to mean the populace, the founders were proponents of the power being in the hands of the people. to be truly independant of the government an armed populace would have a certain amount of power in it's own right, as a mode of protection against foreign armies and from within as a check/balance on the central government becoming oppressive.

the problem is that now we think of the national gaurd and instantly want to consider them the militia that the founders spoke of. the problem with that is that they are now just an extension of federal power, this is not what the founders had in mind. not to mention, most importantly, the text does not say "the states". it says "the people".

Ultrax, you make a very good point about the ninth amd. i also think that is severely overlooked when it comes to ind rights and to limits of the gov.

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Quote forgotten_man:...the problem is that now we think of the national guard and instantly want to consider them the militia that the founders spoke of. the problem with that is that they are now just an extension of federal power, this is not what the founders had in mind.
The state militias could ALWAYS be federalized. It says so in the Constitution and that's all fleshed out in the Militia Acts.

Despite what the USSC said, I don't think the right to bear arms in the Second can be separated from the Militia clause. This is rewriting the Constitution to suit a key constituent group of the GOP.

But since no one stands up for the Ninth, it was so much easier for the Gun Nuts to bastardize the Second with its clear right to bear arms language than it was to force an argument about the Ninth with its more encompassing language on rights but with nothing specific to say about guns.

By doing so the Gun Nut groups have helped undermine unenumerated Ninth amendment rights for all of us by implicitly supporting the position that only enumerated rights are protected.

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Quote forgotten_man:i believe the term militia to mean the populace, the founders were proponents of the power being in the hands of the people.
Who is "the populace"? As I wrote earlier, "The People" sounds all inclusive. But "The People" never meant everyone. Just look at the Preamble to the Constitution.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The blessings of liberty they hoped to protect clearly didn't apply to slaves. As for who are the militia? Again, it's a subset of the population as fleshed out by the Militia Acts. Working from memory it's white men between about 18-40. The Second Amendment never intended to be universal right to bear arms simply because not everyone was required to be in the Militia. And even while the Ninth appears a more expansive declaration of rights… again, it never was originally meant to apply to everyone.

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generally speaking, i believe that anytime "the people" is cited it should be interpreted as broadly as possible. when in doubt i would defer to the general philosophy of the founders that the power was left in the hands of the citizens of this country, of course they would not want the gov. to be able to limit the powers of it's citizens to own guns.

as far as those rights being tied to the militia clause, why would it? they didn't qualify any other rights, in fact i don't think that the founders believed in qualified rights whatsoever. if it is in the bill of rights it is meant to limit the government, not to limit the rights of people. the very placement of this amendment should tell us all we need to know.

as far as the ninth goes, i do not disagree with you. but if i were the nra, i think i would pick the amd that says "...the right of the people to keep and bear arms shall not be infringed."

this should not be a left or right issue, i cannot for the life of me understand why the left doesn't just give up on this one. as much as i hate to give liberals advice, i think that it would help them out quite a bit at the ballot box.

like i said earlier, if there is any doubt at all, interpret broadly.

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Quote forgotten_man:to be truly independant of the government an armed populace would have a certain amount of power in it's own right, as a mode of protection against foreign armies and from within as a check/balance on the central government becoming oppressive.
Nice theory. It's like those who claim the US was meant to be a Christian nation. But where is either actually written into law?

The Constitutional Convention was held in large part as a response to Shays Rebellion 1786-1787 http://en.wikipedia.org/wiki/Shays'_Rebellion where more than a thousand rebels attacked the federal armory in Springfield MA. Imagine what might have happened if they were successful. The notion that the Framers trusted the masses or wanted them to be an armed wild card that might threaten their new government is laughable. The Articles of Confederation were dysfunctional enough. What's actually written into law is that these militias would be controlled by the states and at times could be federalized. Have you ever even read the Militia Acts?

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

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Quote forgotten_man:generally speaking, i believe that anytime "the people" is cited it should be interpreted as broadly as possible. when in doubt i would defer to the general philosophy of the founders that the power was left in the hands of the citizens of this country, of course they would not want the gov. to be able to limit the powers of it's citizens to own guns.
You want have your cake and eat it too. Today, perhaps, after the 14th Amendment, "The People" are everyone. But that was NOT the intent of the Framers.

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Quote forgotten_man:if it is in the bill of rights it is meant to limit the government, not to limit the rights of people. the very placement of this amendment should tell us all we need to know.
If you're interested in the opinion of the Framers... as if there even is "one opinion" then it was NOT to have a Bill Of Rights. Madison's argument prevailed that to enumerate SOME rights placed the unenumerated rights in jeopardy. He was correct.

Given this context, your placement theory doesn't hold much water. The Constitution was barely ratified by the states and one condition by some of the states was that there be a formal Bill Of Rights. While many of the participants were the same, these first 10 amendments reflect the opinions more of the First Congress than those at the Constitutional Convention. Technically at this point they cannot be considered the Framers.

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Separating the personal right to bear arms from the ability to maintain a well ordered militia is typical of our Constitutional Originalists and Fundamentalists. They keep saying how much they love the Constitution, but there are these bothersome words, and those other Amendments like the 9th.

As pointed out, the response to Shay's Rebellion was not likely to be an endorsement of independent armed groups, much less vigilantes. There is a strong sense of state v. federal in the sense that militias are the base force, but as also stated above, in case of national peril, the militias could be federalized. It seems clear to me that the Founders/Framers were setting up a security force for the states and nation and were not establishing any "check on government" in the 2nd Amendment.

Scalia is a perfect example of an unprincipled Fundamentalist. He tends to use the law to support power rather than any concept of justice. He puts himself above the law and due process all the time.

What would we do had the Founders limited rights to those enumerated? Would we be guilty of practicing democracy without a license if we went beyond such a limited and cautious venture into the edges of democracy?

If being for the rights of the people to practice democracy is wildly progressive or "liberal," so be it. If some want to call it socialism, I cannot prevent their ignorance or free speech. What I want to see stopped is the insane idea that limited government means that we cannot use democracy to govern ourselves and must leave ourselves open to predators in the name of freedom.

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I think inherent in our Framers ideas of proper government is the issue of how much it can coincide with the premise of 'natural law'--a concept that has been skewed even here in thomland to mean something like 'no government intervention despite organized oppression passed off as voluntary acts through corporate functions'. After reading some of Locke, that's not what was meant by 'natural law'--either in the terms of its use in government nor in terms of its use in economics.

Economically, using the premises of 'natural law', Locke stated that private property and economic value were based on the labor to enhance or produce it respectively. Politically and socially, Locke used the concept of 'natural law' to mean something of the order of social function made by agreement through government than by impositions from government. As others here have stated, 'natural law' was the premise that rights weren't granted by government (that would be 'positive law')--but were 'granted at birth' and to be protected by government against any impositions--even impositions of 'the law'. The legal scholar and historian, Akhil Reed Amar, makes a point in his book, The Bill of Rights, that the Framers originally intended that jury trials and grand juries were there to judge the law as much as the perpetrator--up to the point of even jury nullification where they acknowledge the specifics of the law but still claim that in the circumstances of the case at hand it doesn't apply. All of this has its basis in 'natural law' where, as my wife's West's Business Law book describes it as 'a system of moral and ethical priniciples that are inherent in human nature and that people can discover through the use of their natural intelligence'--endorsing Aristole's principle that 'natural law applies universally to all humankind'.

Scalia appears to contradict this basis for natural law in emphasizing the position that rights are only those granted by government--not protected by government against oppressive intervention (even by government--but, nowadays, especially by corporations). While it is true that our Framers did not apply such tenets to 'natural law' evenly across the board, it is also true that they saw their start up in government in expanding such a premise to 'natural law' as 'the culture and the progression of knowledge promoted it'--which with respect to the races and gender identities, history has at least partially confirmed it.

But, today, as the discussion about Scalia indicates at least to me, the premise of 'natural law' being the right of every thinking individual intent on confirming it is gradually being subdued by the more impositional and authoritarian 'positive law' promotion being directed by those in position to reap its advantages. Even the way in which the 'anti-government' fervor is being promoted (and, as 'American Revolutionaries' instead of 'English Loyalists', we do have a historical basis for 'anti-government' sentiments), in making government the object of derision instead of the instrument of social action, it divisiveness in function does appear to paradoxically promote 'positive law' impositions to 'contain such divisiveness' by the policing action of government....something that I believe those in position to do so are purposely endorsing. And, all of this is intent on removing the remnants of 'natural law' for the impositions of 'positive law' through what remains of government as a 'policing action' I believe....

I think that we need to recognize what we are up against.....the historical context of 'natural law' against the impositional restrictions of 'positive law'....

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Quote forgotten_man:this should not be a left or right issue, i cannot for the life of me understand why the left doesn't just give up on this one. as much as i hate to give liberals advice, i think that it would help them out quite a bit at the ballot box.
Yes, this isn't a Left or Right issue. It's a CONSTITUTIONAL issue... and the Second is clear that the right to bear arms mentioned there is inextricably tied to the Well Regulated Militia. Those who want guns for unenumerated purposes like self-protection or hunting or just shooting up junked cars are protected by the Ninth. So are you suggesting that to "do better at the ballot box" Liberals should join the Right in bastardizing the Second to appease Gun Nuts? I thought the Right claimed to cherish the Constitution.

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Quote ulTRAX:
Quote forgotten_man:this should not be a left or right issue, i cannot for the life of me understand why the left doesn't just give up on this one. as much as i hate to give liberals advice, i think that it would help them out quite a bit at the ballot box.
Yes, this isn't a Left or Right issue. It's a CONSTITUTIONAL issue... and the Second is clear that the right to bear arms mentioned there is inextricably tied to the Well Regulated Militia. Those who want guns for unenumerated purposes like self-protection or hunting or just shooting up junked cars are protected by the Ninth. So are you suggesting that to "do better at the ballot box" Liberals should join the Right in bastardizing the Second to appease Gun Nuts? I thought the Right claimed to cherish the Constitution.

that theory only holds water if you hold the opinion that the 2nd is not a individual right. i disagree, and luckily so do 5 supreme court justices. it is most certainly NOT clear that the 2nd is inextricably linked to militias. it may be a reason for having the 2nd, but it is not limited to that reason. sorry i have not read the militia acts that i can recall, but i have read most of the federalist papers, i can certainly understand your argument for ninth, and don't necessarily disagree.

as far as the term "check on government" please allow me to clarify. if the government is "the people", the people should hold the power, no? allowing the individual right to own guns is most definately allowing the people to retain power. this is consistent with the constitution. as is the concept of a militia not so much meaning a formal entity, but meaning a force made up of the people. all through the constitution are protections of individual rights and limits on government. if the second amd. was put in place to protect the powers of the states to have militias it would have been worded differently, and the term "the people" would not have been used.

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Quote forgotten_man:that theory only holds water if you hold the opinion that the 2nd is not a individual right. i disagree, and luckily so do 5 supreme court justices. it is most certainly NOT clear that the 2nd is inextricably linked to militias.
Just because a Right wing court delivered for people like you doesn't mean their decision wasn't strictly political as was Citizens United. The militia clause is THERE FOR A REASON. If you care about Original Intent it can NOT be ignored. But then trying to find that right to bear arms in the Ninth is more problematic since the Ninth has been swept under the rug by both parties. No one wants to peek under the rug... especially social conservatives who want to stick with enumerated rights as a means of suppressing social rights they abhor. Even Democrats who we might expect would look at the Ninth as the basis for the Right to Choose, same sex marriage, etc, prefer to stick with stare decisis. There is so little case law on the Ninth.
sorry i have not read the militia acts that i can recall, but i have read most of the federalist papers, i can certainly understand your argument for ninth, and don't necessarily disagree.
They can be read in about 5 minutes. The Constitution and the Militia Acts make it CLEAR what the Framers intended the function of the militia to be. NO WHERE is there any mention they intended it to be a force that could threaten their new government. Yes "the People", chosen as they were, had power… the power to vote.
as far as the term "check on government" please allow me to clarify. if the government is "the people", the people should hold the power, no? allowing the individual right to own guns is most definitely allowing the people to retain power. this is consistent with the constitution.
Please read the Constitution to see how much tolerance the Framers had for insurrection or rebellion. None.
as is the concept of a militia not so much meaning a formal entity, but meaning a force made up of the people.
Perhaps some states permitted rag tag militias, but the Well Regulated Militia mentioned in the Constitution and the Second Amendment have a separate purpose. One of those purposes was to insure states had well regulated militias that could be called on to defend the nation, or to suppress rebellion or insurrection... not to the SOURCE of rebellion or insurrection. I've asked you to support your position by showing me any LAW from this period that backs up what you claim. All you're doing is reclaiming what you did before and not providing any proof of anything. I tire of this discussion. BTW, the Federalist Papers may make for interesting reading, but they are NOT law.

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Quote forgotten_man: the very placement of this amendment should tell us all we need to know.
Have any evidence to back up your theory that the order of the Bill Of Rights means those with the lowest numbers are more important than the others?

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Quote ulTRAX:
Quote forgotten_man: the very placement of this amendment should tell us all we need to know.
Have any evidence to back up your theory that the order of the Bill Of Rights means those with the lowest numbers are more important than the others?

i meant that it is within the bill of rights, not necessarily because it is in the 2 slot. the bill of rights is commonly accepted to be a limit on the federal gov, and to protect certain rights, not to clarify rules to the states. if it were i do think that it would have been worded differently and placed elsewhere. the framers were very careful and thoughtful about organizing the const. they didn't just throw stuff in any old spot. i also did not say that the federalist papers were law, they are a good source of context, however.

i do not believe that the framers intended the owning of guns to cause rebellion in any way, but more as an insurance policy. voting is a power, true, but so is an armed populace. no longer wishing to be subjects, but citizens, they were sensitive to this. i will try to locate some better evidence in the meantime. but as far as theory goes i think my views are quite consistant with the concept of individual liberty that the framers had in mind with the const.

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Quote forgotten_man: the very placement of this amendment should tell us all we need to know.
Have any evidence to back up your theory that the order of the Bill Of Rights means those with the lowest numbers are more important than the others?
if it were i do think that it would have been worded differently and placed elsewhere. the framers were very careful and thoughtful about organizing the const. they didn't just throw stuff in any old spot.
Translation, you have no proof the order of the Bill Of Rights means some are more important than others? When Madison first proposed amendments to the Constitution the militia & gun rights was tossed in with a number of other rights and were 4th on his list. First was rewriting the Preamble. http://www.usconstitution.net/madisonbor.html#Sec4 When Congress formally passed on to the states the first 12 amendments, the first had to do with apportionment of Congress. So by your logic THAT was the most important issue?
http://www.usconstitution.net/first12.html
I don't think your theory holds water, any more than your other empty claims.
i also did not say that the federalist papers were law, they are a good source of context, however.
Just heading you off at the pass. Many like to make claims about what the Constitution means using select quotes from some of the Framers as proof of their own position even though those positions were never adopted and are not law. The Federalist Papers are interesting not always an honest explanation of the purpose of the Constitution. For instance in the notes from the Constitutional Convention Madison says the true purpose of the Senate is to protect "the minority of the opulent against the majority" while as we know the official rationale we learned in grade school is the Senate represents states.

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Quote think_r:

Thom often brings up that central to this debate (at the time) was the question of whether the U.S. should have a "standing army." Maybe someone could expound upon this.

At the time of the formation of the new republic, many saw 'standing armies' as promoting empire more so than providing for the common defense. That's why Article 1, Section 8, Clause 12 of the U.S. Constitution stipulates that '....no Appropriation of Money to that Use (for raising and supporting Armies) shall be for a longer Term than two Years'.

The presence of British standing armies in the American colonies just confirmed the point that standing armies were there to endorse and promote the interests of empires--usually in a manner that restrained personal freedom. Here's how Akhil Reed Amar explains it at the beginning of chapter 3 (titled 'The Military Amendments') in his book, The Bill of Rights:

....We have already noted the populist and collective connotations of the rights of people to petition and assemble in conventions (in the previous Amendment), rights intimately bound up with the people's transcendent right to alter or abolish their government. Whenever self-interested government actors abused their powers or shirked their duties, "the people" could "assemble" in convention and reassert their sovereignty. "Who shall dare to resist the people?" asked Edmund Pendleton with flourish in the Virginia ratifying convention.

To many Anti-Federalists, the answer seemed both obvious and ominous. An aristocratic central government, lacking sympathy with and confidence from ordinary constituents, might dare to resist--especially if that government were propped up by a standing army of mercenaries, vagrants, convicts, aliens, and the like. Only an armed populace could deter such an awful spectacle. Hence the need to bar Congress from disarming freemen......

History also connected the right to keep and bear arms with the idea of popular sovereignty. In Locke's influential Second Treatise of Government, the people's right to alter or abolish tyrannous government invariably required a popular appeal to arms. To Americans in 1789, this was not merely speculative theory. It was the lived experience of their age. Beginning with the shot heard round the world, when British soldiers met armed Massachusetts minutemen at Lexington and Concord, Americans had seen the Lockean words of the Declaration of Independence--affirming "the Right of the People to alter or abolish" oppressive government--made flesh (and blood) in a Revolution wrought by arms. Thus when Pendleton trumpeted to right of the people to assemble in convention as the answer to any federal misbehavior, Patrick Henry rose up to offer a more bleak assessment: "O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone...."

As Amar later is to explain, it was the Civil War and its subsequent Constitutional Amendments that tied personal rights to federal authority (even against the states) that 'personalized' arms bearing even beyond the militias. Prior to the Civil War, many Southern states fearing a slave insurrection passed laws that not only prevented slaves from owning and bearing guns but even free blacks in their states from doing so (for the same reason, blacks also had no right to assemble in most Southern states). After the Civil War, many blacks used the federal authority of the 'national citizen to bear arms' (for personal protection) in usurping the Southern states' Black Codes that forbid it. Later in Amar's book, he quotes a Southern black newspaper (the 'Loyal Georgian') in that period as saying this:

Have colored persons a right to own and carry fire arms?.....(Blacks) are not only free but citizens of the United States and as such entitled to the same privileges granted to other citizens by the Constitution....

Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms and states that this right shall not be infringed. Any person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons, but no military or civil officer has the right or authority to disarm a class of people, thereby placing them at the mercy of others. All men, without distinction of color, have the right to keep arms to defend their homes, families or themselves.

As this seems to indicate, 'bearing arms' is intrinsic to the American notion of 'popular sovereignty' and its presence is at least symbolic of such sovereignty being able to rein in any tyrannical or oppressive imposition--including, as the American Revolution did do, 'standing armies' for 'oppressive empires'......

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History also connected the right to keep and bear arms with the idea of popular sovereignty. In Locke's influential Second Treatise of Government, the people's right to alter or abolish tyrannous government invariably required a popular appeal to arms. To Americans in 1789, this was not merely speculative theory. It was the lived experience of their age. Beginning with the shot heard round the world, when British soldiers met armed Massachusetts minutemen at Lexington and Concord, Americans had seen the Lockean words of the Declaration of Independence--affirming "the Right of the People to alter or abolish" oppressive government--made flesh (and blood) in a Revolution wrought by arms.

The problem with this is the same with Right wing fundies claiming the US was meant to be a Christian nation. One can find a lot of historical threads and quotes. The only issue is what was written into law. Madison proposed a number of amendments to the Constitution during the First Congress and his FIRST was to modify the Preamble of the Constitution to read more like the Declaration of Independence. http://www.usconstitution.net/madisonbor.html

First, That there be prefixed to the constitution a declaration, that all power is originally rested in, and consequently derived from, the people.
That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

If that language had been adopted and become part of the Constitution, you might have a case. But cleary this language was NOT adopted. So what in LAW is one left with to support your position? A well regulated militia that could be federalized to put down insurrections?

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Here's the rub. The Constitution presumes change and adaptation in its design, so when does that design fail and if it is so judged how is the failure addressed? The context of the Constitution v. the Articles of Confederation make the idea of spontaneous populist rebellions as the Founder's Way ridiculous on the face. What does appear is a "state's rights" relationship of militias to the Federal government with the idea that a threat to the nation is also a threat to the states and requires a collective rather than a local response. National Guards could protect the states from local threats without bringing in the feds.

The issue of sovereignty and authority is about political legitimacy more than guns. The Founders would not like our standing army and empire any more than they loved the British East India Co. The militia vision of national security fit their sense of national interest. We could learn a lot from that, and it would have a lot to do with taking popular control back over foreign policy. Cutting the Pentagon deeply is the way to fiscal sanity among other forms of mental health.

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Quote ulTRAX:

If that language had been adopted and become part of the Constitution, you might have a case. But cleary this language was NOT adopted. So what in LAW is one left with to support your position? A well regulated militia that could be federalized to put down insurrections?

What Amendment II did specify was the it was 'the right of the people (my emphasis) to keep and bear arms'. To now claim that such a right is under 'federal authority' misses the entire point of the American colonists distrusting 'central authority' at the time--as 'standing armies' to 'promote empire' against 'the people'. So, when you claim anachronisms in the present 'Right wing', you might need to look at your own anachronism. 'Federal authority'--especially one that actually was used in conjuction with endorsing 'personal rights'against 'state government rights'--didn't materialize to any significant degree until after the Civil War and the institution of Amendment XIV brought forth the predominance of the 'national citizen' (vs. any of the various 'state citizens') in confirming 'the privileges and immunities of citizens of the United States' against being 'abridged by any State'. Without recognizing that point of history, the rather fundamentalist idea that the original Constitution was meant to 'elevate state governments over the federal government' misses many points of contention as to how both the federal government and state governments are to relate to 'the rights of the people'.....and how 'the people' as a grouping privilege was transformed into 'the person' as a private privilege......

After all 'that language' was in the Declaration of Independence--and even founders at the time recognized that the Constitution was not to confine all 'rights to the people' by the declarations made within it--that, again, would have been 'positive law' instead of trying to confirm and function more under the confines of 'natural law' as consistant with much of what John Locke wrote....including the right to usurp an oppressive government.....

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Quote DRC:

The issue of sovereignty and authority is about political legitimacy more than guns.

That doesn't remove the point in American history that the 'right to bear arms' was intrisically linked to 'popular sovereignty'--especially in at least symbolically set against 'centralized oppressive authority'.....or, with respect to the Southern blacks before the Civil War, any 'oppressive authority'--even the Southern whites that had no restrictions in their right to 'bear arms'....

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Quote Kerry:What Amendment II did specify was the it was 'the right of the people (my emphasis) to keep and bear arms'. To now claim that such a right is under 'federal authority' misses the entire point of the American colonists distrusting 'central authority' at the time--as 'standing armies' to 'promote empire' against 'the people'. So, when you claim anachronisms in the present 'Right wing', you might need to look at your own anachronism.
Again, you're quoting the second half of the Second pretending the Militia context doesn't exist. Yet when looks at what the Framers intended to be the Well Regulated Militia, it is NOT a force meant to threaten the government. So let's skip the Civil War stuff and deal with Original Intent... which is what we're talking about, right? And let's be clear here Original Intent does NOT even include the Second Amendment. Where in LAW... either the Constitution or the laws passed by the first few Congresses do you find ANY support for a citizen militia to be a check on the powers of the federal government? Here's what the Constitution envisions for the Militia:

ARTICLE 1, section 8: Congress has the authority "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

ARTICLE 2 section 2: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"

The MILITIA ACTS of 1792 flesh out the concept of the militia and states:

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall receive the same pay and allowances, as the troops of the United States, who may be in service at the same time..."

Quote Kerry:After all 'that language' was in the Declaration of Independence--and even founders at the time recognized that the Constitution was not to confine all 'rights to the people' by the declarations made within it--that, again, would have been 'positive law' instead of trying to confirm and function more under the confines of 'natural law' as consistent with much of what John Locke wrote....including the right to usurp an oppressive government.....
The D of I has NO weight in law. And as we see with Madison's attempt to include some of its sentiments in a revised Preamble, it went nowhere. We simply did NOT get the government promised in the D of I.

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Quote Kerry:That doesn't remove the point in American history that the 'right to bear arms' was intrisically linked to 'popular sovereignty'--especially in at least symbolically set against 'centralized oppressive authority'.
Is this a discussion on threads in historical American thought or about which were enshrined in early LAW? You seem determined to blur that line.

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To sum up my position it's that when it comes to the Constitution the pressure groups on the Right created a schizophrenic GOP that claims to cherish the Constitution while trying to undermine it.

There are the gun extremists who want EXPAND gun rights but social conservatives who want to RESTRICT social rights. How can the GOP make them ALL happy? Simple. By bastardizing the Second to create an individual right to bear arms outside the context of a Well Regulated Militia, and by undermining the Ninth where unenumerated everyday rights like marriage, having kids, owning a business, and that individual right to bear arms for hunting and self protection should be included. NEITHER position is defensible from the vantage of Original Intent.

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If you are going to approach this as the 'original intent of the Constitution', I suspect that you are going to have to associate it with its historical context--something that I DON'T see the fundamentalist Constitutionalists doing today--most specifically concerning the founders problems with 'standing armies' being used more to promote empire than provide for the common defense and, then, the 14th Amendment subjugating state's rights to federal authority ostensibly for the securing of rights to 'national citizens'--this becomes an important part to the declaring of 'personhood rights' to corporations during the First Gilded Age.

Secondly, with your insistance on how 'the Constitution enacts law', you are missing the very point of 'natural law' that, according to Locke and the Declaration of Independence, is to preclude all written laws--and be the foundation for any interactive government in a society of 'free citizens'. Thomas Jefferson has a quote concerning this that I have posted many times--the Constitution was never meant to be 'etched in stone' as if it was 'positive law' that was to be inforced against any presumption of 'rights' apart from 'positive law'. It was to be adjusted to meet the times as long as the tenets of 'individual liberty' against 'oppressive authority' was maintained--something that 'positive law' seldoms does nowadays......yet, all we can argue about is whether each individual can 'bear arms' or not without regard to why 'bearing arms' was so important at the time (ie. 'against oppressive regimes'..).....

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Quote Kerry:If you are going to approach this as the 'original intent of the Constitution', I suspect that you are going to have to associate it with its historical context--something that I DON'T see the fundamentalist Constitutionalists doing today-
WHAT CONTEXT!!! If I quote all those who were against the Senate in principle that doesn't mean the Senate didn't become part of the Constitution. All the threads of American thought don't count. This is a discussion of what made it into LAW.

Secondly, with your insistence on how 'the Constitution enacts law', you are missing the very point of 'natural law' that, according to Locke and the Declaration of Independence, is to preclude all written laws--and be the foundation for any interactive government in a society of 'free citizens'.
I will take that as a concession you can't prove your position ever was enacted into LAW. You can quote the D of I all you want. We did NOT get a government that enshrined those rights for everyone nor did we get a government that derived its just powers from the consent of the governed. The politics of the time would not allow it. And that seems to be what you're missing. Theory is one thing, practical politics is another. Much that was idealistic in the D of I was bargained away.

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Quote ulTRAX:

Quote forgotten_man: the very placement of this amendment should tell us all we need to know.
Have any evidence to back up your theory that the order of the Bill Of Rights means those with the lowest numbers are more important than the others?
if it were i do think that it would have been worded differently and placed elsewhere. the framers were very careful and thoughtful about organizing the const. they didn't just throw stuff in any old spot.
Translation, you have no proof the order of the Bill Of Rights means some are more important than others? When Madison first proposed amendments to the Constitution the militia & gun rights was tossed in with a number of other rights and were 4th on his list. First was rewriting the Preamble. http://www.usconstitution.net/madisonbor.html#Sec4 When Congress formally passed on to the states the first 12 amendments, the first had to do with apportionment of Congress. So by your logic THAT was the most important issue?
http://www.usconstitution.net/first12.html
I don't think your theory holds water, any more than your other empty claims.
i also did not say that the federalist papers were law, they are a good source of context, however.
Just heading you off at the pass. Many like to make claims about what the Constitution means using select quotes from some of the Framers as proof of their own position even though those positions were never adopted and are not law. The Federalist Papers are interesting not always an honest explanation of the purpose of the Constitution. For instance in the notes from the Constitutional Convention Madison says the true purpose of the Senate is to protect "the minority of the opulent against the majority" while as we know the official rationale we learned in grade school is the Senate represents states.

didn't say that the position of the amd was necessarily what made it important, just the fact that it was within the bill of rights at all. if you read a little more carefully, i stated that. i am a little short on time, so unable to do enough reading to supply you with specific citations, but, i believe the founders vision included a desire for an armed populace. again, not to cause rebellion, but to allow for accountability in future generations. they were not worried about themselves abusing the new const/gov they had just set up, but were thinking down the line.

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Quote forgotten_man:i am a little short on time, so unable to do enough reading to supply you with specific citations
Since this is a discussion about actual LAW, not someone's opinion, there's not much to cite... there's the Constitution and whatever laws Congress made in those early years regarding the militias. Getting into the 1800s and we start to lose sight of Original Intent.

Surely those first few Congresses knew best what the intent of the "well regulated militia" would be. Again, that's NOT to say Congress ever intended there to be NO right to bear arms outside of the militia. It would be covered by the Ninth.

but, i believe the founders vision included a desire for an armed populace.
Do you seriously believe the Framers intended slaves to have the right to keep and bear arms or have them serve in the Militia? The Militia Acts are clear that they consist of able bodied WHITE men from 18-45. Therefore the Second doesn't even protect the rights of women and older men to keep and bear arms. Yet in a young undeveloped nation where there was no speedy law enforcement, self-defense was a given as were other unenumerated rights. Why would there need to be a specific amendment to guarantee self-defense any more than other rights like to have kids or get married?

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Quote forgotten_man:didn't say that the position of the amd was necessarily what made it important, just the fact that it was within the bill of rights at all. if you read a little more carefully, i stated that.
You don't just like rewriting US history, but your own as well. In TWO posts you stated that the placement of the Second Amendment meant the Founders... (First Congress), thought it was of more importance than other rights. Trying to muddy the waters later without conceding the point doesn't change that fact. You wrote:
Quote post#0:So why is it so hard for him to accept the rights of people to own guns as a fundamental concept. I truley believe that the placement of this amendment tells us all we need to know about the Founders intention.

Quote post#8: the very placement of this amendment should tell us all we need to know.
BTW, you really don't have to repost everything you're responding to. Among its other problems, this forum can't display long quotes without scrolling forever. Maybe one of these days the powers that be will provide a decent forum.

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Quote ulTRAX:

We did NOT get a government that enshrined those rights for everyone nor did we get a government that derived its just powers from the consent of the governed. The politics of the time would not allow it. And that seems to be what you're missing.

But, we DID get a history that professed 'those rights for everyone' and a history that to some extent obtained it. Jury trials that could claim nullification and grand juries that judged the WRITTEN LAW as much as the perpetrator follow the premise for 'natural law'. And, up until recent times, many court cases still honored it. The Roe vs. Wade decision had elements of 'those rights for everyone' in it when the Supreme Court had to consider that the 'right to abort all the way to term' had already been allowed in two states (California and New York) before Roe vs. Wade--and, at the time, the Supreme Court acknowledged that 'individual rights' preempted both state and federal authority per se (in other words, the Supreme Court justices had to consider abortion in the terms of the 'individual rights' of 'life, liberty and the pursuit of happiness' from the angle of both the pregnant mother and the fetus BEFORE considering the 'right' of the state and federal authorities to 'govern against it').

Recent times have seemed to restrain such an interpretation--but not always. The Texas sodomy case of Lawrence vs. Texas struck down such laws that the previous decision of Bowers vs. Hardwick upheld--all based on 'individual rights' to privacy. So, your little distinction of 'theory vs. practical politics' isn't quite that distinct except in those minds that believe that an adult person on their own cannot reasonably consider what is right in any given situation and require WRITTEN LAW to dictate their every move....Which one is it for you, by the way?

And, then again, you don't seem to be too consistent on your stand either:

Yet in a young undeveloped nation where there was no speedy law enforcement, self-defense was a given as were other unenumerated rights. Why would there need to be a specific amendment to guarantee self-defense any more than other rights like to have kids or get married?

Is that 'theory or practical politics' that guides your statement here, ulTRAX? 'Natural law' vs. 'positive law'.....

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Guns were tools for hunting as well as for the militia function of citizen soldiers. If we say that the Founders expected American citizens to possess guns, no problem. They framed the 2nd Amendment to formalize the militia functions, but not to make a big deal out of personal gun ownership rights. That is a modernist accretion and is very political and symbolic because the idea of citizen gun possession as a check on tyrannical government is absurd. The guns the government has are so much better and more powerful that the romantic guns in the woods crowd would not last a week.

Unless the military turns against the government and for the people instead of to defend the empire against us and our government, we have no use for guns. Our resistance needs to be non-violent because the empire does not know how to play that game and we do. If we play violence we are on their turf and under their rules. Ridicule and non-violence continues to be the path of best resistance.

Organizing on food security is one good place to begin the new paradigm. We ought to be opposing the foreclosures in our neighborhoods and doing everything we can to keep people from being uprooted. Calling out the duplicity of the duopoly on fiscal conservativism, deficits, etc. is also part of the organizing strategy. Humor takes the helium out of the power balloon.

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Quote Kerry:
Quote ulTRAX:We did NOT get a government that enshrined those rights for everyone nor did we get a government that derived its just powers from the consent of the governed. The politics of the time would not allow it. And that seems to be what you're missing.
But, we DID get a history that professed 'those rights for everyone' and a history that to some extent obtained it.
AGAIN, most of your examples are NOT from the early days of the Republic, and that's what I thought we were discussing... FM's original claims on the Original Intent of the Second.

Your argument is because some laws that reformed the Constitution were passed 80-200 years after the Constitution was ratified, or there were some legal cases that "found" new rights, that we can retroactively apply the new standards to the Original Intent… or somehow that later law negates Original Intent. Your argument is as disingenuous as those who claim the Original Intent of the Second Amendment had nothing to do with a Well Regulated Militia but was an INDIVIDUAL right to own a gun for EVERYONE... all because the definition of the People was later expanded in the 14th amendment and in 1903 a new unregulated reserve militia was created expanding the definition.

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Quote ulTRAX:
Quote forgotten_man:didn't say that the position of the amd was necessarily what made it important, just the fact that it was within the bill of rights at all. if you read a little more carefully, i stated that.
You don't just like rewriting US history, but your own as well. In TWO posts you stated that the placement of the Second Amendment meant the Founders... (First Congress), thought it was of more importance than other rights. Trying to muddy the waters later without conceding the point doesn't change that fact. You wrote:
Quote post#0:So why is it so hard for him to accept the rights of people to own guns as a fundamental concept. I truley believe that the placement of this amendment tells us all we need to know about the Founders intention.

Quote post#8: the very placement of this amendment should tell us all we need to know.
BTW, you really don't have to repost everything you're responding to. Among its other problems, this forum can't display long quotes without scrolling forever. Maybe one of these days the powers that be will provide a decent forum.

again, sir, in niether post did i state that the position in the bill of rights was what was important. in both examples cited i was refering to the fact that it is in the bill of rights AT ALL. i have pondered whether or not the position was, in fact, of importance. but, given no evidence i would have to say, more than likely, no.

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Quote forgotten_man:generally speaking, i believe that anytime "the people" is cited it should be interpreted as broadly as possible. when in doubt i would defer to the general philosophy of the founders that the power was left in the hands of the citizens of this country, of course they would not want the gov. to be able to limit the powers of its citizens to own guns.
Again you're trying to have you cake and eat it. If this is a discussion on Original Intent, then it's clear the term "The People" never meant everyone, for instance slaves were in the populace but not considered The People. The meaning of the term changed LATER. But then this isn't a discussion on amendments from the 1800's but the Constitution and the first 10 Amendments made in the 1700's. It's also a red herring to suggest that the Second was the only guarantee of gun ownership. But your claim that the Framers or the First Congress meant an armed populace to be a check on government power is just a claim. You've presented no proof in the early Constitution or the laws to follow that would indicate this was the intent. In fact you've cited NO sources to back up any of your claims on anything. This should be a discussion on LAW not faith.

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Quote forgotten_man:again, sir, in niether post did i state that the position in the bill of rights was what was important. in both examples cited i was refering to the fact that it is in the bill of rights AT ALL.
As I said, feel free to rewrite history if you want. I've cited your own words and acknowledges that you tried to back peddle without retracting. Your words are pretty clear that you thought the placement of the Militia amendment was put up front because you believed the Framers thought it was more important than others. As I said, I tire of this discussion with you. Your sloppy typing shows no respect for readers. You've done no homework. You've cited no sources. You make nothing but empty claims. And now you're determined to rewrite the history of your own words. Why do you even think you have anything worthwhile to say?

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Quote ulTRAX:

Quote forgotten_man:again, sir, in niether post did i state that the position in the bill of rights was what was important. in both examples cited i was refering to the fact that it is in the bill of rights AT ALL.
As I said, feel free to rewrite history if you want. I've cited your own words and acknowledges that you tried to back peddle without retracting. Your words are pretty clear that you thought the placement of the Militia amendment was put up front because you believed the Framers thought it was more important than others. As I said, I tire of this discussion with you. Your sloppy typing shows no respect for readers. You've done no homework. You've cited no sources. You make nothing but empty claims. And now you're determined to rewrite the history of your own words. Why do you even think you have anything worthwhile to say?

just because your reading comprehension is inadequate, do not put that on me. where did i say, that the placement within the bill of rights had anything to do with anything? the simple fact is that i didn't. please stick with what i ACTUALLY TYPED and not what you read between the lines.

for someone who is so caught up in hard copy, and not theory when it comes to the law, you sure play fast and loose with a messageboard.

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and who in the world says things like "i tire of this discussion"? what makes you think that anyone gives a honk about what you have to say? that cuts both ways, buddy.

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Quote forgotten_man: just because your reading comprehension is inadequate, do not put that on me. where did i say, that the placement within the bill of rights had anything to do with anything? the simple fact is that i didn't. please stick with what i ACTUALLY TYPED and not what you read between the lines.
Yawn. Your first post is still up and quite clear. The idea of "placement" makes no sense except if things are ordered. You backed up that interpretation when you said in your defense the Framers were very careful about placement and ordering.
Quote #18: if it were i do think that it would have been worded differently and placed elsewhere. the framers were very careful and thoughtful about organizing the const. they didn't just throw stuff in any old spot.
So even as you're denying in that post that placement in the Bill of Rights means anything, you were still saying it did… which is consistent with two of your earlier posts. You didn't start to backpedal on your stated position until I started presenting the evidence that what is now the Second was once just part of numerous provisions in amendment #4 in Madison's original draft, and that the actual First Amendment passed by Congress to the States had nothing to do with the Bill of Rights.The problem here isn't my reading comprehension, it's your intellectual honesty in owning up to your own positions.
But feel free to rewrite history if you want.

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Quote DRC:

They framed the 2nd Amendment to formalize the militia functions, but not to make a big deal out of personal gun ownership rights. That is a modernist accretion and is very political and symbolic because the idea of citizen gun possession as a check on tyrannical government is absurd. The guns the government has are so much better and more powerful that the romantic guns in the woods crowd would not last a week.

Is anyone here paying attention to what has been going on in Mexico for the past two years? Warring drug cartels are fighting over turf and many innocent people are being killed in the process. Most people in Texas on the other side of the border are glad they own guns....

Quote ulTRAX:

Your argument is because some laws that reformed the Constitution were passed 80-200 years after the Constitution was ratified, or there were some legal cases that "found" new rights, that we can retroactively apply the new standards to the Original Intent…

What are you really railing on about here, ulTRAX? I'm really having a hard time following what your point really is. Is it that you think that the 'Original Intent' of the Constitution was to have every aspect of 'the people's lives' controlled by positive law--or were they more adherents of the natural law format that government AND ITS WRITTEN LAWS should basically leave most people's actions alone and, when necessary to intervene, be specific with respect to their intent. THAT'S the 'natural law' format that I do believe that the originators of the Constitution were contending with. As Akhil Reed Amar points out in his book, The Bill of Rights, 'the people' meant every citizen--the right to vote and the right to hold office was restricted to propertied white males but, then, even some of the propertied white males knew that that could change and that their approach to the Constitution was to allow such change. But, the point of the issue behind this change was their belief--based in natural law--in restricting government's (and any oppressive authority's) impositions on each individual--not requiring endorsement through some positive law. And, some of American law has kept to that philosophy--there were no laws on abortion at the time of the founding fathers because the act of aborting, itself, was an unsafe option that was relatively rare at the time. When abortion's were made safer, the 'right to abort' (as a 'natural law individual right') had to be addressed--and was.

I'm not quite sure what you are trying to point out, ulTRAX. Are you saying that the 'Original Intent' of the Constitution was as confined by positive law to restrict personal action only to those WRITTEN LAWS that confined them--or was it to restrict government's interference into such personal action as what natural law deems necessary? I don't have a problem with ranting--however, you rant more than you explain. What's your point? Was the possession of guns a positive law grant of government--or a natural law restriction on what government could do?

And, as far as historical bases go, I am aware that when the Constitution was written, many have reservations about putting in a 'Bill of Rights' because they didn't want that seen as government restricting individual rights only to those enumerated in the Bill of Rights. So, as far as how our founding fathers approached written law, I think that I have an historical basis founded here that they were not for positive (written) law defining every aspect of personal action.

ulTRAX bounces around with rants and no consistent point like Ulysses.....

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Good eye Kerry.

Sometimes our "new" friends are really NO DIFFERENT from our "old" friends.

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Quote Kerry:What are you really railing on about here, ulTRAX? I'm really having a hard time following what your point really is.
I'm not bouncing around. I think I was pretty clear. First, FM's original point was looking at the original intent of the Second Amendment… and since this can't be discussed outside the context of the Constitution… its Original Intent is also critical. The doctrine of Natural Law is only relevant to this discussion to the extent it was enacted or guaranteed in law.

While inspired by the doctrine of Natural Law, this concept was NOT fully implemented in the Constitution. Whatever happened after the Civil War or later doesn't change this fact. The idea that all men were created equal was politically inconvenient and Natural Law was selectively applied mostly to Whites… especially White males. But for those Natural Law was applied to, then the Bill of Rights is unnecessary. Madison was clear that the new Federal government only had the powers granted to it and in that context all rights were secure. No Bill Of Rights was necessary and one was NOT included in the Constitution until some states forced such guarantees to be included. In that ORIGINAL constitutional context the individual right of to own a gun was automatically protected. NO additional written legal guarantee of that right was necessary. But there was no guarantee that the concept of a citizen militia was protected in this manner... so we got the Second.

Madison was correct that a written Bill Of Rights might actually jeopardize unenumerated rights... and that's the position we find ourselves in now. With the two major parties each having a collection of interest groups, the GOP especially has become schizophrenic on this issue... wanting to find an individual right to own a gun for the powerful gun lobby but to do so without resorting to the Ninth because to look there opens the door to all sort of social rights the social conservatives are opposed to. I've argued the Ninth enough on hard Right boards to know most think we need no more rights than those enumerated. So the Right, especially, seems to want to bury the Ninth even though it's the Rosetta Stone of sorts to interpret the original Natural Law basis of the Constitution.

Does that make it clear?

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Quote ulTRAX:

I'm not bouncing around. I think I was pretty clear. First, FM's original point was looking at the original intent of the Second Amendment… and since this can't be discussed outside the context of the Constitution… its Original Intent is also critical. The doctrine of Natural Law is only relevant to this discussion to the extent it was enacted or guaranteed in law.

I'm not sure why you say 'this can't be discussed outside the context of the Constitution'--nor what you actually mean in saying that. Are you approaching 'the Constitution' in a positive (written) law format--or as a guide to any positive law implementers trying to restrict our basis for natural law any more? Is the Declaration of Independence and its premise of the individual rights to life, liberty and the pursuit of happiness 'outside the context of the Constitution'? From what you've said before, it is--which makes you a positive law adherent to personal actions and NOT one who believes in 'natural law' (if you need a definition of 'natural law', I've given one from my wife's West's Business Law book many times--once on this very thread)....

While inspired by the doctrine of Natural Law, this concept was NOT fully implemented in the Constitution.

Well, wasn't that the point that 'implementation in the Constitution' amounted to restricting rights to written (positive) law that was exactly the opposite of its natural law premise? The real point of 'natural law' was that 'any thinking person could determine it'.....'written law' can endorse or totally contradict what 'any thinking person' can determine as right in any situation--that was the point with Amar and his book about jury nullification and grand juries at one time used to judge the written law as much as the perpetrator of such a law....all with their premises in 'natural law' as 'any thinking person' can determine....

The idea that all men were created equal was politically inconvenient and Natural Law was selectively applied mostly to Whites… especially White males.

That's when 'theory' doesn't meet 'practical politics'--but, then again, many of the originators knew that that could change--in fact, some (such as Thomas Jefferson) hardily endorsed such change as representing 'the progression of man' into full realization of their 'natural law premises'. While there have been some gains in that measure, that has not been as fully materialized as perhaps some of our founding fathers had envisioned--with one of the biggest restraints coming from those who claim that 'the Constitution' was meant to be a 'positive law enhancement' rather than a 'natural law endorsement'....including you, ulTRAX/Ulysses/or whatever you call yourself....

But for those Natural Law was applied to, then the Bill of Rights is unnecessary. Madison was clear that the new Federal government only had the powers granted to it and in that context all rights were secure. No Bill Of Rights was necessary and one was NOT included in the Constitution until some states forced such guarantees to be included.

'Some states' forced such guarantees because they didn't see the new Constitution restricting the interference of an oppressive central authority as much as they would have liked--something they felt the American Revolution was to remove. They didn't want an oppressive domestic authority any more than they wanted an oppressive foreign authority.

With the two major parties each having a collection of interest groups, the GOP especially has become schizophrenic on this issue... wanting to find an individual right to own a gun for the powerful gun lobby but to do so without resorting to the Ninth because to look there opens the door to all sort of social rights the social conservatives are opposed to.

I don't have any problem with the Ninth--it is the most 'natural law' bill in the first ten amendments I believe. In either the ninth or the tenth amendments, very few are stressing the point of 'the people' when it comes to 'federal and state authority' (implemented by 'positive law').....and, as Madison pointed out in Federalist #10 (I've posted it here before--you can google it to get it), 'local authorities' can be just as restrictive, just as oppressive, and just as disregarding of 'individual rights' as a 'central authority' can--with, of course, the basis for both in a representative republic/democracy based on 'free citizens' (as the Declaration of Independence stipulates) being 'guaranteeing individual rights by government' as the primary purpose of all government....

Natural law vs. positive law. Don't confuse the two--or you'll be playing the same game with 'individual rights defined by law' that you claim against 'the conservatives'......

Does that make it clear?

Read above....

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Kerry
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Quote Kerry:From what you've said before, it is--which makes you a positive law adherent to personal actions and NOT one who believes in 'natural law' (if you need a definition of 'natural law', I've given one from my wife's West's Business Law book many times--once on this very thread)....

What you STILL don't seem to grasp is that I'm NOT debating a doctrine of Natural Law… only what BECAME law… positive law to use your term. That WAS the topic of this thread, right… the legal meaning of the Second Amendment? Trying to understand the Second or the Constitution doesn't make me an adherent of anything anymore than trying to understand anti-drug laws I disagree with make me a proponent of them. I'm NOT a fan of the Constitution. I don't like the concept of state suffrage because it undermines democracy. I don't believe the Constitution created a morally legitimate government by the moral standards stated in the D of I. I'm NOT here defending the Constitution or the Original Intent of the Framers or the First Congress. I'm ONLY here trying to understand that original legal intent of the Constitution and the Bill Of Rights. I consider it a side discussion of what moral principles in the D of I were negotiated away at the Constitutional Convention... or even the Articles of Confederation for that matter. But it's not relevant to this discussion.

In the end, the Original Intent is was what the Framers wrote into law. As far as the courts are concerned, Natural Law is doctrine and doesn't negate positive law. So given the historical time period I'm trying to confine my remarks to, whatever room the Framers left to modify Original Intent and what happened 80-100 years later is also irrelevant. NOW am I clear????

So bringing this back to the topic of this thread… what the hell are you even trying to say in regards to the Second Amendment? You've gone off on so many tangents I've no idea.

PS... sorry if the editing of my stupid mistakes bounces a thread back to the top. In a normal forum this would not be a problem. Unfortunately, this forum software sucks. In a world with so many DECENT forum software choices... who in hell picked this one????

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ulTRAX
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Jul. 31, 2007 3:01 pm

OK, in part, this is what my wife's West's Business Law book says with respect to natural law and positive law:

The Natural Law School. An age-old question about the nature of law has to do with the finality of a nation's laws, such as the laws of the United States at the present time. For example, what if a particular law is deemed to be a "bad" law by a substantial number of that nation's citizens? Must a citizen obey the law if it goes against his or her conscience to do so? Is there a higher or universal law to which individuals can appeal? One who adheres to the natural law tradition would answer this question in the affirmative. Natural law denotes a system of moral and ethical principles that are inherent in human nature and that people can discover through the use of their natural intelligence.

The natural law tradition is one of the oldest and most significant schools of jurisprudence. It dates back to the days of the Greek philosopher Aristotle (384-322 B.C.E.), who distinguished between natural law and the laws governing a particular nation. According to Aristotle, natural law applies universally to all humankind.

The notion that people have "natural rights" stems from the natural law tradition. Those who claim that a specific foreign government is depriving certain citizens of their human rights implicitly are appealing to a higher law that has universal applicability. The question of the universality of basic human rights also comes into play in the context of international business. Should rights extended to workers in this country, such as the right to be free of discrimination in the workplace, be applied to a U.S. firm doing business in another country that does not provide for such rights? This question is rooted implicitly in a concept of universal rights that has its origins in the natural law tradition.

The Positivist School. In contrast, positive law, or national law (the written law of a given society at a particular point in time), applies only to the citizens of that nation or society. Those who adhere to the positivist school believe that there can be no higher law than a nation's positive law. According to the positivist school, there is no such thing as "natural rights." Rather, human rights exist solely because of laws. If the laws are not enforced, anarchy will result. Thus, whether a law is "bad" or "good" is irrelevant. The law is the law and must be obeyed until it is changed--in an orderly manner through a legitimate lawmaking process. A judge with positivist leanings probably would be more inclined to defer to existing law than would a judge who adheres to the natural law tradition.

My addition: This page in West's Business Law goes on to describe two other 'schools of jurisprudential thought'; the 'historical school' where 'legal thought emphasizes the evolutionary process of law by concentrating on the origin and history of the legal system', and 'legal realism' that is 'based on the idea that law is just one of many institutions in society and that is shaped by social forces and needs'--but these to me both seem to be variations of natural and positive law. At any rate, I guess it does some good to occasionally define the terms we are using to enhance the conversation--or not, as the case may be....

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Kerry
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Jul. 31, 2007 3:01 pm

I've written it before and I'll quote it again. It's Thomas Jefferson's statements that I believe relate to this question as to the extent of the authority of 'written law' in light of the 'natural law' premise that I do beleive our founders were endorsing. This comes from the booklet 'Thomas Jefferson--The Man, In His Own Words' edited by Robert C. Baron:

Some men look at constitutions with sanctimonious reverance and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.

I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with because, when once known, we accomodate ourselves to them and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times.--Letter to Samuel Kercheval, July 12, 1816

Men by their constitution are naturally divided into two parties: 1.) Those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes. 2.) Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depository of the public interests. In every country these two parties exist; and in every one where they are free to think, speak, and write, they will declare themselves.--Letter to Henry Lee, August 10, 1824

Still one thing more, fellow citizens--a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.--First Inaugural Address, March 4, 1801

All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppressive.--First Inaugural Address

I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not (to) take it from them, but to inform their discretion.--Letter to William Charles Jarvis, September 28, 1820

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Kerry
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Jul. 31, 2007 3:01 pm

Quote Kerry:I've written it before and I'll quote it again. It's Thomas Jefferson's statements that I believe relate to this question as to the extent of the authority of 'written law' in light of the 'natural law' premise that I do believe our founders were endorsing.
Just for clarification... I use the term Founders to mean those who signed the Declaration of Independence. That document does endorse Natural Law. I used the term Framers... often the same people, who wrote the Constitution some years later. I don't believe that document created a government that fully enshrined Natural Law. I've given examples elsewhere in this thread. Jefferson was a Founder but not Framer. He was in France during the Constitutional Convention.

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ulTRAX
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Jul. 31, 2007 3:01 pm
Quote ulTRAX:

Just for clarification... I use the term Founders to mean those who signed the Declaration of Independence. That document does endorse Natural Law. I used the term Framers... often the same people, who wrote the Constitution some years later. I don't believe that document created a government that fully enshrined Natural Law. I've given examples elsewhere in this thread. Jefferson was a Founder but not Framer. He was in France during the Constitutional Convention.

You say that this is all about 'what was put into the law'. You seem to approach this from the postivist perspective that if it's not 'put into law', it doesn't exist as a legal principle. I've tried to point out that the very principle upon which the Constitution--especially the Bill of Rights--was based on was the concept of 'natural law' that isn't 'put into law' but exists in 'every thinking person intent on determining what is right'. And, I've tried to point out that even our Founders and Framers were working from the same perspective of positive law endorsing and not negating natural law--and, throughout American history, it has in one way or the other held its precedence in court procedures and court procedings at times (including the present) against formidable opposition to its premise.

I've even mentioned that Thomas Jefferson pointed out the 'distinction', the 'point of departure' as it were, between 'natural law rights' and potential 'positive law impositions' against it as being determined by how much faith is being positioned for 'the people' up against 'the ruling classes'--and I believe that has always been the distinctive element (at least through American history) between the emphasis being placed on 'natural law' (with its incumbent 'natural rights') and 'positive law' (with its reliance on the authoritarian intervention of those who implement it). And, I have stated before that while Antifascist's thread on Neo-Liberalism does a good job in describing philosophical positions on this, I have a tendency to view this in the more politico-religious sense of Original Sin vs. 'innocent until proven guilty'. In other words, the distrust (Original Sin) vs. the trust (innocent until proven guilty) of each actor as an individual on a stage that still contains implementations from an authoritarian point of view. The 'theory' does not meet the 'practical politics' because positive law has not yet been aligned with natural law despite our founder's rather valid attempts to realize such a possibility with our Constitution and Bill of Rights.

Some, such as ulTRAX, appear to look at the Constitution and American history and justify the restraints of positive law against natural law. Others, such as myself, look in the same area and see the opportunities attempted by our founders in correlating positive law with natural law--especially with respect to the Bill of Rights and in considering the influence of the Declaration of Independence (something that ulTRAX said had 'nothing to do with the Constitution'). And, what is most distressing to me, is that there does, indeed, seem to be a systematic approach to undermining our basis for 'natural law' and, instead, creating all legal acquiescence to 'what is written at the time'--something that I don't ever believe was a part of American history since the inception of America--except by the revisionist attempts being done now....

Keep the faith....

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Thom plus logo Colonel Vindman's testimony pretty much proves that Trump was trying to shake down Ukraine for information on Biden, and that the Republicans are doing everything they can to cover up this extortion attempt.
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