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View Full Version : Did the 2nd amendment originally apply to the Fed govt only... or not?



Little-Acorn
06-30-2010, 12:02 PM
This question is a spinoff from another thread, which deserves a separate thread of its own.

One of the most important results of the recent Supreme Court decision McDonald vs. Chicago (the gun-ban case), is the Court's statement that the 2nd amendment applies to city and state governments ACROSS THE COUNTRY, as well as the Federal govt.

This whole idea that "The 2nd amendment originally was meant to restrict only the Fed govt, not the states or cities", and which this USSC decision has finally changed, has always baffled me. The amendments themselves, have always specified which government(s) they are supposed to apply to. And where they don't name specific governments, that means the Framers meant them to apply to ALL governments in the country: Federal, state, and local.

The amendments (at least in the Bill of Rights) are, of course, restrictions on GOVERNMENT, not restrictions on people. Government isn't allowed to restrict this, or that right cannot be infringed BY GOVERNMENT, etc.

But look at the first two amendments. The first one starts by saying, "Congress shall make no law...." restricting or mandating religion, restricting freedom of speech, and several other things. That clearly says that it was originally a restriction on ONLY THE FEDERAL government - that's what it's plain language explicitly says. And a look at history shows that the Framers had good reasons to confine the 1st amendment's restrictions to only the Fed. In fact, when the Constitution and BOR were written and ratified, most states had official, state-sponsored religions! Often a different one for different states. And the 1st amendment was carefully written to NOT mess with that! It was designed to prevent the FED from mandating an official religion for the entire country, and to prevent it from restricting or banning any particular religion anywhere in the country. The States were to have the ability to do those things, but not the Fed. Same deal for the freedom of speech, freedom of the press, etc.

The 2nd amendment, however, is not like that. It is a flat ban on government restrictions on ordinary people's right to own and carry personal guns, swords, etc. (and it even provdes an explanation of why)... and it does NOT confine that ban to any particular government like the 1st does. And since it doesn't say which government(s) in the U.S. it applies to, that means it applies to ALL of them: Federal, state, city, etc. (Does anyone think it was supposed to apply to NO governments? Then what was the point in writing it at all?). That was the clear intention of the people who wrote and ratified it. Most of them were lawyers, and were keenly aware of the importance of such wording in a legal document. Specifying on "Congress" in the 1st, and not specifying any target govt in the 2nd, was no accident.

The Framers abhorred a powerful central government controlling large parts of societies. Their philosophy was that if something had to be controlled by government, it should be done on the smallest, most local level possible. Hence the design of the Constitution, which provided for a central government whose powers were limited to those listed, while state and local government's powers were NOT limited, except for a few things specifically listed in the Constitution.

The Framers weren't blind to the idea that SOME things should be universally banned throughout a country, whether the states liked it or not, and the Bill of Rights was designed to do this. Indeed, most amendments in the BOR named things govt was restricted from doing in criminal trials... and it was the State and local govts who conducted the vast majority of criminal trials. Those amendments do not say what govt they are supposed to restrict... but clearly they were intended to restrict state and local governments, as well as the Fed.

Does anyone think that the Framers intended to say that Federal courts could not put people in jeopardy twice for the same crime, but state and local courts COULD??? Of course not - they meant that NO govt (Fed, state, local) could impose double jeopardy in a criminal trial. Especially since nearly all criminal trials at the time, were conducted by state and local governments. But the 5th amendment contains no language specifying "all governments" - the Framers considered it obvious that that's what it meant, and so it does.

Or do you think that the Framers wanted criminal suspects to be provided with lawyers, only for trials in Federal courts, but people could be DENIED a laywer when being tried in state or local criminal courts? Of course not - the 6th amendment means that a suspect must have a lawyer provided whether his trial is in Fed, state, or local courts. Yet the 6th includes no language saying so - it merely says that the trial must be held in the area where the crime was committed. But it was clearly intended to apply to ALL courts, not just the Fed courts. Does anyone disagree?

Do suspects in significant crimes get jury trials only in Federal courts, but they can be denied jury trials in state or local courts? Again, of course not - but the 7th amendment doesn't say it includes state and local govt courts. The framers simply and clearly intended this amendment to apply to states and local govts, as well as the Fed, and we have always taken it that way... correctly.

Can anyone claim that state and local courts CAN impose cruel and unusual punishments, and that only the Fed is forbidden to do so? Again, of course not. Fed, state, and local governments are ALL forbidden by the 8th amendment from doing that... though the 8th doesn't explicitly say that it applies to state and local.

The 2nd amendment is no different. Like the 4th, 5th, 6th, 7th, and 8th amendments, it does not explicitly say which govt(s) it applies to. But jumping to the conclusion that it does NOT apply to the state and local govts while all the others DO apply, is farfetched to the point of being silly.

So where do people get the notion that the 2nd amendment didn't apply to state and local governments? Sure, it's "generally accepted". Just as "black people are inferior" was generally accepted, or "Only landowners can vote". Does "general acceptance" make it true, or even a good idea?

Certainly not.

Supreme Court Justice Sam Alito wrote into his Opinion in the recent case McDonald vs. Chicago, that "The 2nd amendment originally applied only to the Federal government,", before going on to state that the 14th amendment now changed that. But he never offered any citation or other support for his idea of the 2nd's original jurisdiction... because there is none, aside from "other people said so", with an equal lack of justification or backing.

In fact, the 2nd amendment has always been a ban on ANY government in the U.S. restricting the right to own and carry personal weapons. To consider it anything else, flies in the face of the clear meaning of nearly every other amendment in the BOR. In fact, only amendments that specifically declare particular government(s), are the ones that don't apply to ALL governments. And there is only one such amendment in the BOR: the 1st, which explicitly says "CONGRESS shall make no law....".

The 1st amendment's restriction to only "Congress", does not extend to the 2nd, any more than it extends to the 4th, 5th, 6th, 7th, or 8th amendments. The 2nd amendment has ALWAYS forbidden state and local governments from infringing on the right to keep and bear arms, as well as the Federal government.

This fact has been important (and ignored) for hundreds of years... until yesterday, June 28, 2010. On that date, the Supreme Court finally acknowledged that the 2nd applies to State and Local governments too. I guess all's well that ends well, even if the Supremes arrived at the right conclusion by the wrong route. They have finally gotten it right... that's the important part.

revelarts
06-30-2010, 12:34 PM
Good points I'll need to look at more closely. But I think there was a supreme court case, way back in time that, gave many the impression if not the reality to the idea that the bill of rights only applied to the feds.

But the point comes up a again here.
the Gov't has no rights but those loaned to them by the people.
All rights are derived from the people.
SO NO one has the right to take your gun unless you say so. Feds state or locals. Unless you've committed a crime or by due process of law.

They can't take your gun or property or look through your papers etc etc.. They are human rights. Not state federal or local rights.

the Bill of Rights of the U.S. And of the individual states Bill's of rights and constitutions just codify some of them so the gov't is clear on it's limits. Not the other way around.
that how it's suppose to be at least, but I'm an idealistic dreamer.





like some of the founders


.

Little-Acorn
06-30-2010, 01:14 PM
I think there was a supreme court case, way back in time that, gave many the impression if not the reality to the idea that the bill of rights only applied to the feds.
Yes, there was, and it is mentioned in the Opinion for the McDonald case. I don't remember the case name, but would like to look at it.



the Gov't has no rights but those loaned to them by the people.
All rights are derived from the people.
I think you meant government powers, not "rights". People have rights, Govt has powers.
But I understand your point, and agree.


SO NO one has the right to take your gun unless you say so. Feds state or locals. Unless you've committed a crime or by due process of law.
Ummm... well, that's yet another issue, deserving of yet another thread of its own.

Does the 2nd say, "...shall not be infringed, except by due process of law." ?

The 4th, 5th, and even the 3rd amendment DO say "except by due process of law" (or similar language with the same meaning), for parts of their restrictions on government. But the 1st, 6th, 7th, and 8th do not... nor should they.

And neither does the 2nd.

Is it a GOOD IDEA that a convicted murderer be denied the right to own and carry guns, by government? Certainly. And governments frequently do exactly that.

But is it LEGAL for government to pass a law denying that murderer his RKBA? Keep in mind that the 2nd says, "...shall not be infringed." PERIOD.

The Framers, again, were mostly lawyers, and knew well the vital importance of including - or omitting - certain phrases in the laws they were writing. And they were careful to include language such as, "Except by due process of law", in several places in the BOR.

And they were equally careful to LEAVE IT OUT of the 2nd amendment.

And again, that was no accident.

Why, do you suppose?

(Hint: The main purpose of the 2nd, was to make sure citizens had the tools to fight against GOVERNMENT and win, if they needed to. Did the Framers want to leave the smallest loophole for that government to take away ANYONE's firearms? Knowing government's tendency to take the tiniest loophole and turn it into something big enough to drive a truck through?)

So, what did the Framers intend, for cops who were called to the scene of a murder and found a wild-eyed guy brandishing several (reloaded, single-shot flintlock) pistols, with people dead and dying at his feet, and other terrified people cowering in various corners? The cops are government agents. Did the Framers intend to give them the power to take away the wild-eyed guy's guns?

"...shall not be infringed." PERIOD.

What did they intend???"

This is a question for a different thread. And it has a reasonable answer.

Kathianne
06-30-2010, 02:56 PM
I'm unsure what case you are referring to; but the principle is based on social contract theories.

Yes, under all versions the people allow limitations or even give up certain 'rights' for social order, rather than go with a total system of natural rights or a state of nature.

Usually the first to go is the right to kill, with only very few exceptions. Same with acquiring property without the owner's permission or agreed compensation. 'Just because I can, is not reasonable.'

Little-Acorn
06-30-2010, 03:14 PM
Kathianne, I pointed out in another thread, that all of our "inalienable rights" derive from just one fundamental right: The right to be left alone. Also known as the Right to be Independently Sovereign.

Doesn't mean you have to be lonely all your life, of course. Just means other people can't mess with you against your will. But you and they can interact all you AND THEY want.

Keeping that fundamental right in mind, there is no "right to kill" or "right to steal" to give up. There has never been a "right to do absolutely anything you want", because the people around you have that same right to be left alone, that you do.

You've heard the line, "Your right to swing your fist ends where my nose begins." Same deal. Nobody says you don't have the right to swing your fist. BUT....

Kathianne
06-30-2010, 03:18 PM
Kathianne, I pointed out in another thread, that all of our "inalienable rights" derive from just one fundamental right: The right to be left alone. Also known as the Right to be Independently Sovereign.

Doesn't mean you have to be lonely all your life, of course. Just means other people can't mess with you against your will. But you and they can interact all you AND THEY want.

Keeping that fundamental right in mind, there is no "right to kill" or "right to steal" to give up. There has never been a "right to do absolutely anything you want", because the people around you have that same right to be left alone, that you do.

You've heard the line, "Your right to swing your fist ends where my nose begins." Same deal. Nobody says you don't have the right to swing your fist. BUT....

In practice, perhaps you have a point. In theory, not so. Medieval times, at their darkest hours, came pretty close to state of nature. Kill or be killed. Strongest wins.

The Enlightenment and political theories along with good ole George the German, helped to bring theory and practicality together.

Little-Acorn
06-30-2010, 03:52 PM
In practice, perhaps you have a point. In theory, not so. Medieval times, at their darkest hours, came pretty close to state of nature. Kill or be killed. Strongest wins.



Rousseau misnamed his "state of nature", which was in reality the "state of animalism". It stands in contrast to the "state of humanism", which is similar except for its recognition of intrinsic rights - a concept unique to the human species.

If you were the only human on earth, the concept of "rights" would be useless, and even alien, since no other HUMAN is trying to take them from you or violate them. If a lion attacks you and tries to kill you, he is not violating your rights, he is just being an animal - a creature that cannot conceive of rights.

Some political people (including Rousseau himself) hijacked the "state of nature" (really animalism), and tried to assert it's the way all humans are before government is invented. In fact, it's the way all animals and homo sapiens are before the concept that rights can exist, is invented.

Remember the basic American tenet that our fundamental rights exist BEFORE government showed up to start protecting (or violating) them (I know, other societies held that tenet before America showed up, but I digress). The Declaration of Independence says our "Creator" gave them to us. Some people don't believe in a "Creator", but the fact remains that, even to those people, our rights come from the fact simply that we are human, and have NOTHING TO DO with government or its absence.

Kathianne
06-30-2010, 03:54 PM
Rousseau misnamed his "state of nature", which was in reality the "state of animalism". It stands in contrast to the "state of humanism", which is similar except for its recognition of intrinsic rights - a concept unique to the human species.

If you were the only human on earth, the concept of "rights" would be useless, and even alien, since no other HUMAN is trying to take them from you or violate them. If a lion attacks you and tries to kill you, he is not violating your rights, he is just being an animal - a creature that cannot conceive of rights.

Some political people (including Rousseau himself) hijacked the "state of nature" (really animalism), and tried to assert it's the way all humans are before government is invented. In fact, it's the way all animals and homo sapiens are before the concept that rights can exist, is invented.

Remember the basic American tenet that our fundamental rights exist BEFORE government showed up to start protecting (or violating) them (I know, other societies held that tenet before America showed up, but I digress). The Declaration of Independence says our "Creator" gave them to us. Some people don't believe in a "Creator", but the fact remains that, even to those people, our rights come from the fact simply that we are human, and have NOTHING TO DO with government or its absence.

Ok, animalism it is. In any case, the premises that you all were originally referring to have to do with limits on rights. I agree to only murder in war, to preserve my own life/property, and a cheating spouse. ;) Nah, I just divorced him.

revelarts
06-30-2010, 04:50 PM
Yes, there was, and it is mentioned in the Opinion for the McDonald case. I don't remember the case name, but would like to look at it.


I think you meant government powers, not "rights". People have rights, Govt has powers.
But I understand your point, and agree.


Ummm... well, that's yet another issue, deserving of yet another thread of its own.

Does the 2nd say, "...shall not be infringed, except by due process of law." ?

The 4th, 5th, and even the 3rd amendment DO say "except by due process of law" (or similar language with the same meaning), for parts of their restrictions on government. But the 1st, 6th, 7th, and 8th do not... nor should they.

And neither does the 2nd.

Is it a GOOD IDEA that a convicted murderer be denied the right to own and carry guns, by government? Certainly. And governments frequently do exactly that.

But is it LEGAL for government to pass a law denying that murderer his RKBA? Keep in mind that the 2nd says, "...shall not be infringed." PERIOD.

The Framers, again, were mostly lawyers, and knew well the vital importance of including - or omitting - certain phrases in the laws they were writing. And they were careful to include language such as, "Except by due process of law", in several places in the BOR.

And they were equally careful to LEAVE IT OUT of the 2nd amendment.

And again, that was no accident.

Why, do you suppose?

(Hint: The main purpose of the 2nd, was to make sure citizens had the tools to fight against GOVERNMENT and win, if they needed to. Did the Framers want to leave the smallest loophole for that government to take away ANYONE's firearms? Knowing government's tendency to take the tiniest loophole and turn it into something big enough to drive a truck through?)

So, what did the Framers intend, for cops who were called to the scene of a murder and found a wild-eyed guy brandishing several (reloaded, single-shot flintlock) pistols, with people dead and dying at his feet, and other terrified people cowering in various corners? The cops are government agents. Did the Framers intend to give them the power to take away the wild-eyed guy's guns?

"...shall not be infringed." PERIOD.

What did they intend???"

This is a question for a different thread. And it has a reasonable answer.

Good Corrections .. thanks.

Granted Powers is the correct way to put it.


When I said "OR due process of law", I should have said "AND due process of law".

AS far as cops go.

were there cops in colonial days. a Sheriff in a lot of towns maybe. But some Guy drunk on Mead and some Indian mushrooms with a flintlock and a lets give him a pistol and broad sword terrorizing people.

The sheriff or any of the people have the RIGHT to defend themselves and protect others from this clown. Yes they can take his GUN KNIFE and SWORD. Then just punishment meeted out.

Having guns against the gov't is true but they were also against the gov't having standing armys (which wasn't written in but often mentioned) and at this point we have a Standing Army , Navy and Airforce. Plus a militarized Police. Which is in fact a local standing army that can --(see riot police videos) be turned against the people.

but that's another thread too.

DragonStryk72
06-30-2010, 10:17 PM
You know, it occurs to me that the Framers would actually be really surprised about all these issues over gun control. Seriously, think about it: When they were framing the constitution, the big thing they worried about was the government deciding to come and round up everyone's guns. They could not have foreseen a day when large swaths of the citizenry would be trying to take the guys away. They would think us certifiably insane, most likely.

Little-Acorn
07-07-2010, 03:47 PM
Does the 2nd say, "...shall not be infringed, except by due process of law." ?

The 4th, 5th, and even the 3rd amendment DO say "except by due process of law" (or similar language with the same meaning), for parts of their restrictions on government. But the 1st, 6th, 7th, and 8th do not... nor should they.

And neither does the 2nd.

Is it a GOOD IDEA that a convicted murderer be denied the right to own and carry guns, by government? Certainly. And governments frequently do exactly that.

But is it LEGAL for government to pass a law denying that murderer his RKBA? Keep in mind that the 2nd says, "...shall not be infringed." PERIOD.

The Framers, again, were mostly lawyers, and knew well the vital importance of including - or omitting - certain phrases in the laws they were writing. And they were careful to include language such as, "Except by due process of law", in several places in the BOR.

And they were equally careful to LEAVE IT OUT of the 2nd amendment.

And again, that was no accident.

Why, do you suppose?

(Hint: The main purpose of the 2nd, was to make sure citizens had the tools to fight against GOVERNMENT and win, if they needed to. Did the Framers want to leave the smallest loophole for that government to take away ANYONE's firearms? Knowing government's tendency to take the tiniest loophole and turn it into something big enough to drive a truck through?)

So, what did the Framers intend, for cops who were called to the scene of a murder and found a wild-eyed guy brandishing several (reloaded, single-shot flintlock) pistols, with people dead and dying at his feet, and other terrified people cowering in various corners? The cops are government agents. Did the Framers intend to give them the power to take away the wild-eyed guy's guns?

"...shall not be infringed." PERIOD.

What did they intend???"

This is a question for a different thread. And it has a reasonable answer.

Two words: Jury nullification.

Revelarts makes a good point, that the cops WERE allowed to take the wild-eyed guy's guns away. Not as a function of their official power as government agents, but on the simple (and universal) grounds of their right to defend themselves, as humans, from a clear threat.

But if some prosecutor takes the 2nd as an exact, literal ban on ANY government agent taking ANYONE'S guns away for ANY reason (even including self-defense), and arrests the cops (!) and puts them on trial for violating the wild-eyed murderer's 2nd amendment rights...

...the jury in the trial DOES have the absolute right to declare that the 2nd amendment was not meant to apply in this case. Despite its direct, unequivocal wording as a no-exceptions ban on govt taking guns away. A jury has the right to declare ANY law null and void for a particular case, though of course their declaration does not extend to any other cases. It's called "jury nullification".

And that, I believe, was the Framers' last resort, for protecting people in extreme situations such as the murderer I described above. The cops CAN take his guns away, confident that no jury will ever convict them for violating the murderer's 2nd amendment rights.

And so, the Framers wrote the 2nd as an absolute, unequivocal, no-exceptions ban on govt taking away ANY person's personal weapons. Because they knew that, in the rare instances where it was RIGHT for govt agents taking someone's weapons away, the jury would see it that way too, and refuse to convict the cop who did it. At the same time, that jury would NOT spare a govt agent who tried to take away a dissident's gun, no matter how much a threat the dissident was to a tyrannical government, if that dissident had NOT murdered an innocent person, injured one etc. Because the Framers, and presumably the jury, knew that the 2nd was intended to protect that dissident, and restrict that agent.