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  #31  
Old 11-21-2007, 05:55 PM
AlexM AlexM is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

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The Second Amendment, as written by the Constitutional Convention of 1787, states:
A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

That was 1787. That entire part of the constitution doesn't really apply to 2007.

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If you think so, feel free to amend it. Until then it applies.

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It applies legally, but that doesn't mean it SHOULD apply (which I believe was his point).

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Which is the whole point of the amendment process! Use it!
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  #32  
Old 11-21-2007, 05:57 PM
AlexM AlexM is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

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Should the federal government be able to tell a state (or in this case DC) that it can't ban guns?

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Yes, the federal government should be able to intervene anytime the Constitution is being trampled on. What if a state decided to disregard the 13th?

I'm sure most (reasonable people, not ACists) would agree that if, for example, Tennessee decided to round up all black people and enslave them tomorrow, the federal government should get involved.

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They can't because the 13th, 14th and 15th Amendments all specifically apply to the states.

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So does the 2nd. Unlike the 1st, the 2nd doesn't say it applies only to Congress.

On the other hand, I don't think the Feds should be involved regardless and wouldn't mind seeing an amendment that let states ban guns if they want and more clearly barred the federal government from doing so (although I dunno how it could be more clear).

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Only those Amendments that have been incorporated into the due process clause of the 14th Amendment apply to the states. Note that few of the original bill of rights specifically refer to the Federal government even though none of them have applied to the states until incorporation through the 14th Amendment began.

Examples:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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All of those things applied to the states from the very beginning as far as I know. If you have evidence otherwise, I'd like to see it.
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  #33  
Old 11-21-2007, 06:12 PM
elwoodblues elwoodblues is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

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Should the federal government be able to tell a state (or in this case DC) that it can't ban guns?

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Yes, the federal government should be able to intervene anytime the Constitution is being trampled on. What if a state decided to disregard the 13th?

I'm sure most (reasonable people, not ACists) would agree that if, for example, Tennessee decided to round up all black people and enslave them tomorrow, the federal government should get involved.

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They can't because the 13th, 14th and 15th Amendments all specifically apply to the states.

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So does the 2nd. Unlike the 1st, the 2nd doesn't say it applies only to Congress.

On the other hand, I don't think the Feds should be involved regardless and wouldn't mind seeing an amendment that let states ban guns if they want and more clearly barred the federal government from doing so (although I dunno how it could be more clear).

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Only those Amendments that have been incorporated into the due process clause of the 14th Amendment apply to the states. Note that few of the original bill of rights specifically refer to the Federal government even though none of them have applied to the states until incorporation through the 14th Amendment began.

Examples:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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All of those things applied to the states from the very beginning as far as I know.

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Nope. In fact, several of them still don't. You still don't have, for example, the right to a Grand Jury indictment in state criminal cases.

As far as wanting evidence, your best bet would be to do a search on the incorporation doctrine (the doctrine by which many of the rights found in the bill of rights were incorporated into the due process clause of the 14th Amendment.) The process began in the 1920's. A decent overview is found in wikipedia or here

*Just a note of politics, the incorporation doctrine is generally one area where liberals and conservatives disagree. Conservatives generally believe that 14th Amendment was never meant to extend Bill of Rights protections to the states(which is why, for example the Honorable Dr Grand Poobah Paul is against the civil rights act.)
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  #34  
Old 11-21-2007, 06:37 PM
andyfox andyfox is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

Judge Silberman of the Circuit Court stated in his opinion that "'Keep' is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use."

The word "keep" implies ownership or possession by an individual for private use? That's quite an implication.
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  #35  
Old 11-21-2007, 06:55 PM
AlexM AlexM is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

Hmm, you're definitely right about the Grand Jury clause it seems. Weird that that stuff didn't apply to the states, but then I'm all for that anyway. [img]/images/graemlins/tongue.gif[/img] OTOH, I would say the selectivity of what is and is not applied just makes the incorporation doctrine look even more contrived and stupid.
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  #36  
Old 11-21-2007, 07:00 PM
elwoodblues elwoodblues is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

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Hmm, you're definitely right about the Grand Jury clause it seems. Weird that that stuff didn't apply to the states, but then I'm all for that anyway. [img]/images/graemlins/tongue.gif[/img] OTOH, I would say the selectivity of what is and is not applied just makes the incorporation doctrine look even more contrived and stupid.

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I tend to agree that it should be all or none. Basically the courts have said that fundamental liberty interests are incorporated. The first question they ask is whether the interest to be protected is fundamental. In the case of grand jury indictments, they explicitly ruled that it is not. So far, they have not ruled one way or the other on gun rights (to my knowledge.)
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  #37  
Old 11-21-2007, 09:58 PM
wacki wacki is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

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So if Scalia really wants our laws to reflect the reality of what they meant when they were passed, he will not vote to uphold the right of an individual to own guns based on the 2nd amendment.

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There are a lot of letters, articles, quotes etc from the founding fathers and reporters of the time that strongly disagree with your reading of the 2A. Some of their opinions are documented in this documentary DVD:

http://www.secondamendmentdocumentary.com/

It would be dishonest to claim Patrick Henry, Thomas Jefferson or Alexander Hamilton supported the regulation of arms. As for each and every individual signor of the constitution well there is room for debate. But even James Madison seems to read the Constitution differently than you do:

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46

http://www.gmu.edu/departments/econo...otes/arms.html

Here are a lot of law professors that flat out disagree with your reading of the the 2A:
http://www.youtube.com/watch?v=TxwNeViNW0Q

I also don't read the 2A the same way you do. It appears to me that your argument is based mostly off of a semicolon and not expressed opinions of those who drafted the Constitution. So until new information comes to light I guess we will simply have to agree to disagree.
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  #38  
Old 11-21-2007, 10:29 PM
wacki wacki is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

And just in case Andyfox still doesn't believe the "father of the Constitution" here are some more fun quotes:

"The people are not to be disarmed of their weapons. They are left in full possession of them."
-- Zacharia Johnson, delegate to Virginia Ratifying Convention, Elliot, 3:645-6



And then there is this little timeline:

Following the revolution but previous to the adoption of the Constitution, debates over militia proposals occupied a large part of the political scene. A variety of plans were put forth by figures ranging from George Washington to Baron von Steuben. 32 All the proposals called for a general duty of all citizens to be armed, although some proposals (most notably von Steuben's) also emphasized a "select militia" which would be paid for its services and given special training. In this respect, this "select militia" was the successor of the "trained bands" and the predecessor of what is today the "national guard". In the debates over the Constitution, von Steuben's proposals were criticized as undemocratic. In Connecticut on writer complained of a proposal that "this looks too much like Baron von Steuben's militia, by which a standing army was meant and intended." 33 In Pennsylvania, a delegate argued "Congress may give us a select militia which will, in fact, be a standing army or Congress, afraid of a general militia, may say there will be no militia at all. When a select militia is formed, the people in general may be disarmed." 34 Richard Henry Lee, in his widely read pamphlet "Letters from the Federal Farmer to the Republican" worried that the people might be disarmed "by modeling the militia. Should one fifth or one eighth part of the people capable of bearing arms be made into a select militia, as has been proposed, and those the young and ardent parts of the community, possessed of little or no property, the former will answer all the purposes of an army, while the latter will be defenseless." He proposed that "the Constitution ought to secure a genuine, and guard against a select militia," adding that "to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them." 35

The suspicion of select militia units expressed in these passages is a clear indication that the framers of the Constitution did not seek to guarantee a State right to maintain formed groups similar to the National Guard, but rather to protect the right of individual citizens to keep and bear arms. Lee, in particular, sat in the Senate which approved the Bill of Rights. He would hardly have meant the second amendment to apply only to the select militias he so feared and disliked.

Other figures of the period were of like mind. In the Virginia convention, George Mason, drafter of the Virginia Bill of Rights, accused the British of having plotted "to disarm the people that was the best and most effective way to enslave them", while Patrick Henry observed that, "The great object is that every man be armed" and "everyone who is able may have a gun". 36

Nor were the antifederalists, to whom we owe credit for a Bill of Rights, alone on this account. Federalist arguments also provide a source of support for an individual rights view. Their arguments in favor of the proposed Constitution also relied heavily upon universal armament. The proposed Constitution had been heavily criticized for its failure to ban or even limit standing armies. Unable to deny this omission, the Constitution's supporters frequently argued to the people that the universal armament of Americans made such limitations unnecessary. A pamphlet written by Noah Webster, aimed at swaying Pennsylvania toward ratification, observed.

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Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. 37

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In the Massachusetts convention, Sedgewick echoed the same thought, rhetorically asking an oppressive army could be formed or "if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" 38 In Federalist Paper 46, Madison, later author of the Second Amendment, mentioned "The advantage of being armed, which the Americans possess over the people of all other countries" and that "notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."


and much more here:
http://www.constitution.org/mil/rkba1982.htm

The more I read about the people who were involved in the drafting and ratification of the constitution the more convinced I am that your position is flat out wrong.
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  #39  
Old 11-21-2007, 11:41 PM
andyfox andyfox is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

We had some good discussion about this back in March. I'm sure we will again as the Court hears the case. The more I delve into it the more I'm convinced you are wrong.

When Johnson said "the people" he did not mean an individual. He meant the people in their capacity as the resisters to either armed insurrection from the poor or slaves or attack by Indians or foreign invasion. And the people who would do that were the member of the militia, service in which was generally required of all able-bodied male adults.

As for Madison, his initial formulation of the right to bear arms read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

The discussion of religious objection to bearing arms shows that the idea of keeping and bearing arms in Madison's mind involved militia service. Quakers, for example, opposed bearing a gun for military purposes, not to hunt for food. Madison wrote this with the intention of it being inserted in the Constitution in the section dealing with militias.

Antifederalists claimed the Constitution was dangerous without a Bill of Rights. Two of the dangers they foresaw were a standing army in peacetime and federal control of the militia. The Second Amendment was designed to address those two issues, especially the militia. In fact, ardent Antifederalists were bitterly disappointed by the amendment. "Centinel" (Samuel Bryan) said that the amendment did not restrain "the absolute command vested by other sections [of the Constitution] in Congress over the militia."

In the debate in the House over how to treat religious pacifists, reference to the militia was paramount. Elbridge Gerry said that "whenever government means to invade the rights and liberties of the people, they always attempt to destroy the militia." The British had "used every means in their power to prevent the establishment of an effective militia to the eastward." Gerry, one of the few Anti-Federalists to be elected to the House, did not mention any threat to the rights of individuals to use guns outside militia service.

From your timeline:
"All the proposals called for a general duty of all citizens to be armed, although some proposals (most notably von Steuben's) also emphasized a 'select militia' which would be paid for its services and given special training."

So von Steuben was distinguishing between the regular militia--composed of the body of the citizenry--and a "select militia." Everything else in your timeline either explicitly refers to the militia when discussing arms or is clearly referring to it. Absolutely nothing there refers to an individual right to arms. Note that many were fearful of the government resorting to tyranny. The deterrent to that was an armed citizenry--a "well regulated militia."

In 18th century usage, the preamble to a law states the purpose of the text, and is not simply a justification clause as some modern scholars have suggested. Here is what Blackstone said about preambles:

"If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the fame point."

As for "bearing arms," apart from an odd usage of this term by Pennsylvania Anti-Federalists, there is little historical evidence to support the claim that this term was typically associated with the private use of arms. In fact, in virtually every use of the term tracked by scholars, which includes over a hundred examples, the phrase has a clear military meaning. And most early commentators on the 2nd amendment referred to it as a military right. Here is Joseph Story:

"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."

In 18th century lawmaking, the "people" means in their collective, civic sense. Here is the 1776 Pennsylvania constitution:

"That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good."

Bearing arms meant militia service. The Pennsylvania Constitution provided a separate provision protecting the right to hunt. If the arms bearing provision protected hunting there would have been no need to include this other provision.

Here is Madison:
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe , which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone, they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it."

The Founding fathers knew the difference between an armed mob and a well regulated militia. It was citizens organized as a militia under the control of their states that is the proper check on tyranny.

All this said, I don't really care what the original meaning of the 2nd amendment was. Because the world has changed and the framers clearly intended that the Constitution should change with it. Both through amendments and through interpretation. But if one wants to take an originalist approach, the collective, civic right to bear arms is clearly what was meant by the 2nd amendment, not an individual's right to have weapons for personal use.

Maybe we should argue the case in front of SCOTUS [img]/images/graemlins/grin.gif[/img].
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  #40  
Old 11-22-2007, 01:40 AM
John Kilduff John Kilduff is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

As you know, Andy, I disagree with your interpretation of the 2nd Amendment; but we needn't rehash those points of dispute now.

Perhaps more importantly: the underlying principle of the Bill of Rights is not to grant rights to people or states, but rather to reiterate and emphasize those rights which already inherently exist, as per the principles upon which the USA was founded.

If there were no Bill of Rights, or 4th Amendment, the right of people to be secure against unreasonable searches would still exist in the USA.

If there were no Bill of Rights or 1st Amendment, the right of the people to peacably assemble would still exist in the USA.

So: the 2nd Amendment does not confer the right to keep and bear arms; it merely re-affirms it. It does not limit that right, either, because it cannot limit without also having conferred in the first place.

Whether your interpretation of the militia clause is correct or not, is immaterial, because the right to keep and bear exists irrespective of the Bill of Rights and 2nd Amendment. It is like the inherent right to the pursuit of happiness, or like the right to freedom of expression, or like the right of freedom of association.

As the 9th Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

As the 10th Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The Constitution is essentially a timeless document, because history repeats itself, and in spans even much longer than the 200+ years of the USA: the founders knew well the dangers of government tyranny, and did their best to prevent it with the drafting of the Constitution.

It would be folly to presume that civilization, or America, have now so far advanced that the masses no longer need the means to resist potential government tyranny.

Also, the militias of that era past were NOT under control of the state governments in the manner in which today's National Guards are.

The most basic purpose of the Constitution is to prevent government tyranny. The most essential means of preventing tyranny is for the people, in widespread fashion, to have the means to resist it. Therefore it would be ludicrous to think that the founders intended for the common people to be deprived of their inherent right to freely bear arms.

They went so far as to reiterate this right in the Bill of Rights, but as one founder feared, the Bill of Rights may have been a bad idea, because people would take it to mean that rights not expressed in it, did not exist; or would take it to mean that it in itself conferred rights: but those rights of the people exist independently and inherently. IMO this is exactly the trap people into which politicians and courts have fallen regarding the Bill of Rights: first they erroneously presume it confers rights, then they try to interpret the rights which it "confers". IMO this is what you are doing with your interpretation of the 2nd.

You don't really think that there would be no right to keep and bear if there were no 2nd Amendment, do you? How about the right to peacably assemble, or to petition government for redress of grievances? You don't think the wording of the Bill of Rights defines or limits those rights, do you? Or that it was intended to define or limit any such rights?

Thanks for reading.
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