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  #41  
Old 11-22-2007, 02:55 AM
wacki wacki is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

Ok lets try to find something we can agree on. Would you agree that Alexander Hamilton, a man that signed the original constitution, believes it is (or at least should be) a natural and individual right?

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
-- Alexander Hamilton, Federalist No. 28



Now to pin down the conversation to a manageable size. Madison said:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation,

Now in order to understand this statement it would be prudent to analyze the firearm laws of other European countries and assume that Madison believes American gun laws are far more relaxed. Would you disagree or agree with this simple statement?



Also regarding Madison's statement on RKBA:
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 <u>additional</u> advantages of local governments chosen by themselves.... 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.

This phrase is something that no sane person would disagree with. A revolting army attempting to overthrow a tyrannical government would greatly benefit another it from some form of government help. That help can come from another nation, state governments or a simple small town council that's willing to feed local guerrilla troops. That statement of Madison's you quoted is something I agree with in full. Since I agree with this statement in full your claim that Madison's statement proves that the 2A is an not an individual right is the same as claiming I do not believe the 2A is an individual right. And that simply is not the case. And since you seem to fixate on grammatical specifics I would like to point out that he claims government direction of the militia is an "additional" meaning which is equivalent to separate advantage. This "additional" advantage, using his words, is merely something that increases the success rate of the militia from "not certain" to "affirmed with the greatest assurance".

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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.

[/ QUOTE ]

Well you've made it clear in the past that you don't care what the intent of the founding fathers was. A state of mind that carks me but whatever, this country is still free enough to allow people to have their own opinions. But if you are going to have an opinion on what the "originalist approach" is and criticize people who deviate from that philosophy then I hope I don't need to tell you that it is pretty important that do you know what the intent of our founding fathers was. But I suspect I'm simply jumping on you for not wording your posts carefully.

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Maybe we should argue the case in front of SCOTUS.

[/ QUOTE ]

That would be fun as well as didactic. I'm sure you would be a formidable opponent. Unfortunately lack of formal training would more than likely make the trial look like the beginning of My Cousin Vinny. :-D
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  #42  
Old 11-22-2007, 04:13 AM
andyfox andyfox is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

The basic purpose of the Constitution was not to prevent government tyranny. In fact, the most beloved portions of the Constitution, I'm sure we all agree, appear in the Bill of Rights. The Constitutional Convention made a conscious decision not to give the new federal charter a Bill of Rights. It was when the Constitution was sent out to the states for ratification that many Americans were aghast that the document enumerated the powers of government but not the rights of citizens. And they were aghast that as the ratification battle continued, the supporters of the Constitution continued to resist the idea of a Bill of Rights.

The supporters of the Constitution were afraid that the effort to amend it with a Bill of Rights in order to protect civil and states' rights would cancel the purpose of their effort--to strengthen the federal government. The most compelling motive for the framers of the Constitution was not to safeguard liberty from the tyranny of the federal government. As Alexander Hamilton said, he and many other Americans were growing "tired of an excess of democracy."

The discussion at hand is whether the 2nd amendment is referring to an individual right to keep and bear arms of the right to do so collectively for military purposes, whether one accepts your argument that the individual right is inherent and thus cannot be granted by the Constitution or not.

The framers did not venerate unrestrained liberty. What they sought was "well regulated" liberty. The individual states had lengthy militia statues; these constituted the largest body of law dealing with firearms. These regulations could be quite intrusive, allowing government 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 police powers to regulate the nonmilitary 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. And the states retained the right to disarm groups deemed to be dangerous.

The states considered their authority over civilian gun use to be greater than that over "bearing arms." During his time as a legislator in Virginia, James Madison proposed a stiff penalty for individuals who hunted out of season. Madison proposed that a person who "shall bear a gun out of his inclosed ground, unless whilst performing military duty" should be penalized. As Madison's language clearly shows, he understood the differences between bearing a gun for personal use and for the common defense; and he felt 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 (i.e., for personal use) and bearing arms (i.e, for defense in a militia).

It is not ludicrous to think that "the founders intended for the common people to be deprived of their inherent right to freely bear arms." In fact, the right to travel armed was severely constrained under common law. The author of English Liberties, of the Free-born Subject's Inheritance, a popular English legal text reprinted in the colonies, defined an affray as a crime against the king's peace and that "constables may take away the Arms of them who ride or go armed in Terror of the People."
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  #43  
Old 11-22-2007, 04:24 AM
andyfox andyfox is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

"if you are going to have an opinion on what the 'originalist approach' is and criticize people who deviate from that philosophy . . ."

It's not a philosphy that I am criticizing. I'm criticizing the idea that the wording of the second amendment, and the idea behind it, was considered, at the time of its composition, to refer to an individual right. Almost all of the discussion and debate about it was carried on in the context of militias and standing armies.

I fail to see how the quoted passage from Federalist 28 shows that Hamilton believes gun ownership to be an individual right enumerated in the 2nd amendment. But it' late and I'm tired so I'll re-read it tomorrow.

Have a good night, and a great Thanksgiving.
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  #44  
Old 11-22-2007, 06:28 AM
Metric Metric is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

Andy, just what "right of the people" does the 2nd amendment protect, in your mind? I certainly agree that "bearing arms" could be used in many contexts to mean "military action," but the concept of protecting the government's right to perform military action seems ridiculous to me -- it's certainly not some fragile "right of the people" that needed a specific constitutional amendment in order to protect.

Additionally, "keeping" arms doesn't seem to imply any military action. If we're also acknowledging that the 2nd amendment protects the right of the people to keep arms, I find it very difficult to force this into a "military action only" context -- the concept of "keeping arms" seems to specifically imply that they're not going to be in active use all the time.

Also, citing the fact that books on English common law were reprinted in the colonies to provide support for interpreting the 2nd amendment as a right of the government doesn't seem very convincing, to me.
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  #45  
Old 11-22-2007, 10:06 AM
abatis abatis is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

[ QUOTE ]
Poster: elwoodblues

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

[/ QUOTE ]

The Constitution promises to the states to forever provide a Republican form of government. The classical republic the framers embraced has as an inseparable component, an armed citizenry. Those armed citizens comprise the means of security for both the state and the federal government, thus the national government can not allow a state to disarm those citizens the nation relies on. See US v Presser:

<ul type="square">" It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."[/list]
Notice this protection of the citizen's arms exists without any reference to the 2nd Amendment and is immune to any argument centered on incorporation.
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  #46  
Old 11-22-2007, 11:11 AM
wacki wacki is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

In my last post had a few typos:

[ QUOTE ]
A revolting army attempting to overthrow a tyrannical government would greatly benefit another it from some form of government help.

[/ QUOTE ]

was supposed to be:

[ QUOTE ]
A revolting army attempting to overthrow a tyrannical government would greatly benefit from some form of government help.

[/ QUOTE ]

sorry about that. Have a good Thanksgiving AndyFox.
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  #47  
Old 11-22-2007, 12:04 PM
John Kilduff John Kilduff is offline
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Default Clearest and Most Lucid Explanation I Have Found...

...as the author explains how to interpret the 2nd Amendment (for the benefit of "illiterate morons" lol [img]/images/graemlins/laugh.gif[/img] ) - but seriously, this guy is spot on with his explanation of how to read the 2nd Amendment, and this one page read is well worth following.

By the way, I think the argument presented in the linked page targets and effectively refutes Andy Fox's perspective on the matter.

Thanks for reading.

disclaimer: if liberal usage of the F-word, A-word and S-words in written material seriously offends you, you might wish to skip this link. I don't know anything else about this guy's site; found it early in Google. This article impressed me based on its reasoned reading of the 2nd Amendment, and by its plentiful usage of swear words to emphasize key points [img]/images/graemlins/cool.gif[/img] .

Clear Explanation
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  #48  
Old 11-22-2007, 12:18 PM
natedogg natedogg is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

Scalia has already shown time and time again that his putative originalism only randomly coincides with his actual decisions.

natedogg
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  #49  
Old 11-22-2007, 01:30 PM
abatis abatis is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

[ QUOTE ]
Poster: andyfox

I'm criticizing the idea that the wording of the second amendment, and the idea behind it, was considered, at the time of its composition, to refer to an individual right.

[/ QUOTE ]
What then is the explanation of Tench Coxe's writings 10 days after Madison's introduction of the proposed amendments explaining what they meant? Why would Madison offer Coxe a rousing approval for his published sentiments if they were so opposite to what you say was actually embraced in the proposed 2nd Amendment? Coxe explained the 4th article of amendment this way:
<ul type="square">"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private
arms."

Remarks on the First Part of The Amendments to the Federal Constitution, FEDERAL GAZETTE, June 18, 1789, at 2, col. 1[/list]Coxe sent a copy of his commentary to Madison on the same date and as Halbrook and Kates write:
<ul type="square">Madison wrote back acknowledging “Your favor of the 18th instant. The printed remarks inclosed in it are already I find in the Gazettes here [New York].” Madison approvingly added that ratification of the amendments “will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.”

Madison apparently saw Coxe’s defense of the amendments in the New York Packet the day before he wrote to Coxe. The Coxe article was also prominently displayed on the first page of the July 4 celebration issue of the Massachusetts Centenial, and was no doubt reprinted elsewhere.

Tench Coxe and the Right to Keep and Bear Arms, 1787-1823, 7 William &amp; Mary Bill of Rights Journal, Issue 2, 347-99,(Feb. 1999) [pgs, 16 - 17, footnotes removed, link goes to a pdf file][/list]
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  #50  
Old 11-22-2007, 02:05 PM
andyfox andyfox is offline
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Default Re: Supreme Court to Overturn DC Gun Ban once and for all

"just what 'right of the people' does the 2nd amendment protect, in your mind?

The right of the people to keep and bear arms to use in a well-regulated militia. Just what it says. During the ratification debates, anti-federalists were concerned that without their militias to protect them, the states would be at the mercy of a strong national government which would soon consolidate all power within its orbit. State control of the militia, they said, was necessary to prevent encroachments by the national government on the rights of the states, which should be the true guardians of citizens' rights. All discussion of the right to bear arms was carried on within the contexts of concern over the issue of a standing army and the question of federal control of militias. It was precisely to allay anti-federalists' concerns about the militia that Congress A) rejected Madison's original idea to place what became the 2nd amendment in Article I, Section 9 of the Constitution, next to other restraints on federal power; and B) recast his language to include the well-regulated militia as a preamble, preamble commonly understood by eighteenth-century lawyers to hold the key to the design and meaning of a law. This reframing of the language (Wacki's pooh-poohing of this notwithstanding) clearly signaled to anti-federalists that the purpose of the amendment was to protect the militia.

Elbridge Gerry was one of the few antifederalists elected to the House of Representatives. When worrying about arms, Gerry never mentioned the threat the government might pose to the rights of individuals to use guns outside militia service. He warned that "whenever government means to invade the rights and liberties ofhte 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." The inclusion of an amendment protecting the right to keep and bear arms was designed to ameliorate the worries Gerry and other antifederalists had about possible future efforts at disarming the militia.

The 2nd amendment doesn't protect the right of the federal government. It protects the people's right to keep and bear arms in a well-regulated militia, which they felt important for a number of reasons, among which was protection from the federal government should it turn tyrannical. The Constitution would result in a much stronger federal government; all parties understood this.
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