re:2nd amend from el diaablos

[elwoodblues]

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Maybe the framers only wished to list one of the most important rationales, instead of attempting to provide an exhaustive list (providing a completely exhaustive list might have proved an impossible task; hence they chose only to list the foremost rationale).


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I'll ask a question I've asked before in threads about the second amendment. If we took an eraser to the constitution and deleted the first clause of the second amendment would anything be different (i.e. would you interpret the clause in a different way?) Would the clause have greater reach, less reach, or exactly the same?

If your answers are, as I suspect, that nothing would change --- could you show me other completely superfluous clauses in the Constitution?

[Zeno]

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One wonders what the Framers would have thought about the Second Amendment in light of life in the United States in 2007.

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I submit the following:

A well protected household, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Or how about this combination:

A right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, the right of the people to keep and bear Arms, shall not be infringed.


Or, how about this statement (call it pseudo-Jeffersonian):

Banning guns shows the same proclivities as those that would ban books.

Discuss.


-Zeno

[andyfox]

I doubt it was intended as a limitation. There's little reason to assume the Framers felt a need for limiting possession of firearms. And good reasons for assuming they felt the need for encouraging possession. Such as the importance of the state militias.

I'm saying we should apply the words to today's world, not that of 1789. Which is exactly what the Framers expected we would do. That is, to consider not only the compelling reasons for free-armed citizens, but also compelling reasons to the contrary.

[AlexM]

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On ewonders what the Framers would have thought about the Second Amendment in light of life in the United States in 2007.

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They would think "wow, it's a good thing we included a way to amend the Constitution if people feel like it needs to be amended."

[andyfox]

A good case can be made that the original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.

There is no other case in the Constitution where the Framers listed "one of the most important rationales." The Framers clearly believed that liberty without regulation was anarchy; and that an armed body of citizens unregulated by law was a mob, not a militia.

The militia statutes that each colony enacted show how the militias were a vital institution that were enmeshed in the everyday lives of most colonists. Failure to appear properly armed at a muster resulted in stiff penalties, and governments kept close tabs on the weapons citizens owned to meet this vital public obligation.

No, the mention of the militia at the beginning of the Second Amendment (though in a subordinate clause) shows how vital the militias were in the thought of the time and how the amendment was intended to concern itself with this vital institution. The first clause is not a rationale, not one of several rationales, for an individual to be able to keep arms as he saw fit, but rather a defining clause for the right to keep and bear arms within the obligation people had to participate in the militia.

That said, I don't really care much what the Framers intended for the world of 1789. Their standards of cruel and unusual punishment, for example, were, I'm sure, different from those most of us would hold today. As Edmund Randolph said, the Constitution focused on "essential principles which ought to be accomodated [sic] to times and events."

BTW, thanks for the kind words. You make excellent points in your posts in this thread.

[andyfox]

Nobody's talking about banning. The Framers knew about mobs and their dangers.

[Zeno]

[ QUOTE ]
I doubt it was intended as a limitation. There's little reason to assume the Framers felt a need for limiting possession of firearms. And good reasons for assuming they felt the need for encouraging possession. Such as the importance of the state militias.

I'm saying we should apply the words to today's world, not that of 1789. Which is exactly what the Framers expected we would do. That is, to consider not only the compelling reasons for free-armed citizens, but also compelling reasons to the contrary.

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Well said. So I will submit the following articles as amendments (or replacements) to the constitution:


Society being inheritably dangerous from those that abuse freedoms no matter how well regulated the government and subordinate authorities, and the right of free citizens to be secure in their property and protective of their families and neighbors, the right of the people to keep and bear Arms, shall not be infringed.



Because the government provides all needed security to its free Citizens, the possession of firearms shall not be a right among the people and shall be considered a privilege to be regulated by legislative authority.


Because the world is infested with morons, religious terrorists and fanatics, government goon squads, anti-Semites, racists in general, the terminally inept, the credulous, the ethical impure, and other assorted imbeciles, mountebanks and demagogues too numerous to elucidate, the right of the people to possess any firearm necessary for the security of a free citizens household shall not be infringed upon, ever.


I really like that last one. [img]/images/graemlins/wink.gif[/img]

-Zeno

Added in edit (to be serious): The right of the people to keep and bear Arms shall not be infringed.

Is the above an objectionable article to the constitution?

[andyfox]

The ideal that Americans venerated was not the unrestrained liberty of the state of nature, but the ideal of well-regulated liberty. John Joachim Zubly, in The Law of Liberty, published in Philadelphia in 1775 said that "Well regulated liberty of individuals is the natural offspring of laws, which prudentially regulate the rights of whole communities." And that, by contrast, "all liberty which is not regulated by law, is a delusive phantom." Outside of a well-regulated society governed by the rule of law, liberty was licentiousness and anarchy.

By far the largest body of law in early America dealing with firearms was that dealing with militias. These were often lengthy statues enacted by the individual colonies and then revised by the states after they gained independence.

These regulations could be quite intrusive, allowing governments not only to keep track of who had firearms, but also requiring citizens to report to muster or face stiff penalties. The individual colonies used their broad police powers to regulate the non-military use of firearms in a variety of ways.

Regulations governing the storage of gunpowder were among the most common. States also prohibited the use of firearms on certain occasions and in certain locations. A 1786 statue, for example, forbade Boston residents from storing loaded firearms in any domestic dwelling. It empowered the town's fire wardens to confiscate weapons and impose stiff fines for violating this law.

Governments also retained the right to disarm groups deemd to be dangerous. In Pennsylvania, under the so-called "Test Acts," citizens who refused loyalty oaths were to be disarmed. Laws disarming groups such as slaves, freed blacks, Indians, and those of mixed-race ancestry were common.

There was a distinction between laws regulating civilian gun use and laws pertaining to bearing arms. The states enjoyed far greater authority over civilian gun use. The young James Madison once authored, when he was a legislator in Virgina, a "Bill for the Preservation of Deer," in which he proposed a stiff penalty for individuals who hunted out of season. It penalized people who "shall bear a gun out of his inclosed ground, unless whilst peforming military duty."

This language shows the difference in the way Madison viewed bearing a gun for personal use and for the common defense. The state clearly retained the right to regulate the use of firearms and differentiated between the level of restrictions that might be placed on bearing a gun for individual use and bearing arms.

[andyfox]

Jefferson was well outside the mainstream on most constitutional matters in colonial and Revolutionary America. Jefferson did indeed agree with Cesare Beccaria's observation that laws prohibiting individuals from carrying firearms only worked to the benefit of criminals. Beccaria was the first modern theorist to argue that when firearms are outlawed, only outlaws will have firearms.

When Virginia was drafting a declaration of rights, Jefferson wanted it to say that "no free man shall be debarred the use of arms." This language was anathema to Jefferson's contemporaries. Jefferson then changed his proposal to "No free man shall be debarred the use of arms within his own lands or tenements."

But neither draft was included in the Virgina Declaration of Rights. Instead the Declaration said:

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty, and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

None of the early state constitutions adopted language protecting an individual right to keep or carry arms for personal self-defense. All of the language concerning the right to bear arms centered around militias.

[wacki]

[ QUOTE ]
[ QUOTE ]
Maybe the framers only wished to list one of the most important rationales, instead of attempting to provide an exhaustive list (providing a completely exhaustive list might have proved an impossible task; hence they chose only to list the foremost rationale).


[/ QUOTE ]

I'll ask a question I've asked before in threads about the second amendment. If we took an eraser to the constitution and deleted the first clause of the second amendment would anything be different (i.e. would you interpret the clause in a different way?) Would the clause have greater reach, less reach, or exactly the same?

If your answers are, as I suspect, that nothing would change --- could you show me other completely superfluous clauses in the Constitution?

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And I will ask you a question I have asked you before. I challenge you to find a single pre-20th century quote that refers to the 2A as anything but an individual right. Please find me 1 single quote. You have 2 centuries of quotes available to you (end of 1700s, 1800s). So if your hypothesis is correct then finding one single quote shouldn't be that hard.

Here is a video to watch:
http://www.youtube.com/watch?v=jAQRaXkTjoI

I could write tons more but I really don't think the people that insist the 2A applies to individuals have a case. Just look at the versions of the 2A that were voted down. Also, there are just way too many quotes from our founding fathers that say the complete opposite.

God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. ... What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

-Thomas Jefferson