The Second Amendment

[ConHog]

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.

Here's one I have a beef with SOME conservatives about. Nowhere in that does it say the government can't outlaw certain types of weapons. It merely says that they can't keep us from owning weapons in general. Do I believe that means the government can outlaw ownership of everything but revolvers and lever rod rifles? No of course not; but where the line should be drawn is a separate issue from "can the government in fact draw a line?"

On a related note, I also don't believe the 2nd means the government can't restrict where we can carry guns. In the time frame the COTUS was written Bear Arms meant own weapons, and in fact in many colonial cities of the era it was illegal to carry a gun in town. That's why duels were legal but always took place outside city limits. It wasn't until the wild west where we seen gunfights happening on main street, and that was actually much less common than the movies would have you believe.

[logroller]

Well CH, Your argument seems to be revolve around how and, perhaps more importantly, by whom we define the terms 'arms' and 'infringed'.

Infringe carries two definitions. The first is to break or violate a treaty, law or right. As the Constitutional amendments are, in general, not to be broken, it would seem this definition would be inapplicable; as such wording could have been omitted were this to be the meaning. I think it would be dismissive of the legislative intent to assume this meaning.
The second definition for infringe, To break in or encroach upon something, would indicate that any transgression remotely related to the right of the People to keep and bear arms would be an infringement, and duly forbidden by this amendment. However, this invites speculation on, not only the meaning of arms, but also 'a well-regulated militia' and 'to keep and bear'.
As the colloquial use of what consititutes 'arms' have certainly expanded in their capabilities, I think it's necessary to define the latter two phrases in order to define the former.

The purpose of a well- regulated militia was to mount a defence against a standing army, which had elsewhere already been conveyed to Congress as a power to raise and support. The wording of the amendment, were it intended to be regulated by legislatures, rather federal or state, it assuredly would have been, but it was not. Therefore it would indicate the militia should bear the arms of those whom the founders feared would be used against the People: a domestic standing army; the national guard or police. This accounts for those argument of heavy weaponry, tanks, artillery etc.; that so long as the standing army shall neither keep nor bear any of these arms, nor shall the People. Clearly we have in this country a clear violation of the second amendment, with ripening conditions for tyranny that need not heed any other right of the People-- exactly as our founders has proscribed.

As for the meaning of 'to keep and bear', I look to my previous explanations. As the defense from tyranny is the primary intent, it would be a rational regulation of such a militia to bear arms at such a place or time such a tyranny would manifest. A private residence or business doesn't afford tyranny a public manifestation; thus, the right may be restricted by the coextensive right to privacy. Similarly, a government building would not be location which would manifest tyranny. As it is necessary for the government to express its views, no matter how egregious, it must have a place to express it; gov't acting upon those beyond the confines of the building would be a manifestation. Thus the limitation of bearing arms within the confines of the building would be limited; whereas outside in the public arena, that right of the People to keep and bear arms would be intact.

I Understand the meaning of ' to keep' gives each person a right to personal possession, as opposed to some central repository of said arms. That if the machine guns of the national guard, for example, were kept in such a manner as to be in the personal possession of its soldiers (as opposed to the base), than so shall the people have that right. Similarly, that as police officers may possess high-capacity magazines and assault weapons in perpetuity, outside their assigned time and place of their duties, they too keep arms wih the intent of being ever-ready to bear them. Respective of the proscribed intent of the second amendment, such actions by authorization of a legislature qualify as a standing army; and when such authorization coincides with a limitation of the people to keep such arms, there is an infringement upon the people's second amendment right.

[ConHog]

Well CH, Your argument seems to be revolve around how and, perhaps more importantly, by whom we define the terms 'arms' and 'infringed'.

Infringe carries two definitions. The first is to break or violate a treaty, law or right. As the Constitutional amendments are, in general, not to be broken, it would seem this definition would be inapplicable; as such wording could have been omitted were this to be the meaning. I think it would be dismissive of the legislative intent to assume this meaning.
The second definition for infringe, To break in or encroach upon something, would indicate that any transgression remotely related to the right of the People to keep and bear arms would be an infringement, and duly forbidden by this amendment. However, this invites speculation on, not only the meaning of arms, but also 'a well-regulated militia' and 'to keep and bear'.
As the colloquial use of what consititutes 'arms' have certainly expanded in their capabilities, I think it's necessary to define the latter two phrases in order to define the former.

The purpose of a well- regulated militia was to mount a defence against a standing army, which had elsewhere already been conveyed to Congress as a power to raise and support. The wording of the amendment, were it intended to be regulated by legislatures, rather federal or state, it assuredly would have been, but it was not. Therefore it would indicate the militia should bear the arms of those whom the founders feared would be used against the People: a domestic standing army; the national guard or police. This accounts for those argument of heavy weaponry, tanks, artillery etc.; that so long as the standing army shall neither keep nor bear any of these arms, nor shall the People. Clearly we have in this country a clear violation of the second amendment, with ripening conditions for tyranny that need not heed any other right of the People-- exactly as our founders has proscribed.

As for the meaning of 'to keep and bear', I look to my previous explanations. As the defense from tyranny is the primary intent, it would be a rational regulation of such a militia to bear arms at such a place or time such a tyranny would manifest. A private residence or business doesn't afford tyranny a public manifestation; thus, the right may be restricted by the coextensive right to privacy. Similarly, a government building would not be location which would manifest tyranny. As it is necessary for the government to express its views, no matter how egregious, it must have a place to express it; gov't acting upon those beyond the confines of the building would be a manifestation. Thus the limitation of bearing arms within the confines of the building would be limited; whereas outside in the public arena, that right of the People to keep and bear arms would be intact.

I Understand the meaning of ' to keep' gives each person a right to personal possession, as opposed to some central repository of said arms. That if the machine guns of the national guard, for example, were kept in such a manner as to be in the personal possession of its soldiers (as opposed to the base), than so shall the people have that right. Similarly, that as police officers may possess high-capacity magazines and assault weapons in perpetuity, outside their assigned time and place of their duties, they too keep arms wih the intent of being ever-ready to bear them. Respective of the proscribed intent of the second amendment, such actions by authorization of a legislature qualify as a standing army; and when such authorization coincides with a limitation of the people to keep such arms, there is an infringement upon the people's second amendment right.

You make a GREAT case for why the National Guard should always remain under state authority rather than federal.

But not much of one for why the 2nd says that individuals should be able to buy whatever weapons they want without any sort of registration nor limits.

[logroller]

You make a GREAT case for why the National Guard should always remain under state authority rather than federal.

But not much of one for why the 2nd says that individuals should be able to buy whatever weapons they want without any sort of registration nor limits.

Im not saying that at all; clearly the state police need a federal check to their authority; the national guard provides that. As to the second point, I didn't say whatever weapons, just those the state could bring to bear against its own people. For example, should the national guard possess heavy machine guns? I dont think so, but if they do, then so can I.

[ConHog]

Im not saying that at all; clearly the state police need a federal check to their authority; the national guard provides that. As to the second point, I didn't say whatever weapons, just those the state could bring to bear against its own people. For example, should the national guard possess heavy machine guns? I dont think so, but if they do, then so can I.

So you're saying that if the federal government can limit the weapons YOU can buy then they should also be able to limit the weapons that state national guards should be able to buy? That's just crazy talk, and in fact there is actually NOTHING in the COTUS which prevents the government from doing exactly what they are doing now.

If the 2nd specified that whatever limits were put on the people would also be put on states, you would have a valid point, but it doesn't mention limits at all and so the USG has the authority to set one limit for you and one limit for someone else.

[logroller]

So you're saying that if the federal government can limit the weapons YOU can buy then they should also be able to limit the weapons that state national guards should be able to buy? That's just crazy talk,

And you inverted what I mean. If certain arms are deemed unnecessary for a well-regulated militia; then neither should those arms be necessary for the state militia; i.e. domestic police. I mean, what is a militia, and why is it that the state militia has one rule, and the People's militia is designated differently under the second amendment. That is infringement.

in fact there is actually NOTHING in the COTUS which prevents the government from doing exactly what they are doing now.

Nothing... except the second amendment.

If the 2nd specified that whatever limits were put on the people would also be put on states, you would have a valid point, but it doesn't mention limits at all and so the USG has the authority to set one limit for you and one limit for someone else.

It doesn't mention limits....indeed it expressly forbids them; that's what shall not be infringed means.
I think we can bicker about what a well-regulated militia means, and rather all People who possess firearms do so pursuant to that reasoning; but to say the State can have one set of rules and the People another is clearly a recipe for tyranny CH--you can't honestly deny that?

[Tyr-Ziu Saxnot]

Short and sweet of it is the government saying we the government only are allowed have all the best weapons and we the government get to limit the citizens down to much inferior weapons. The "shall not infringe" part was put in to prevent that in my opinion. Now I dont need a nuke but its nobody's damn business if I want to own high caliber military rifles and damn fine automatic pistols. I may need those weapons to shoot damn pizz ants invading my property. Thats still my damn business not another citizen's, the fraking government or aliens from outer space..
Some people have a mighty strange definition of -freedom--!
Nobody is going to limit me down to having a single shot pistol and a muzzle loader!
They come at me with that shat I say-- "ffkkk 'em feed 'em fishheads"!---Tyr

[ConHog]

And you inverted what I mean. If certain arms are deemed unnecessary for a well-regulated militia; then neither should those arms be necessary for the state militia; i.e. domestic police. I mean, what is a militia, and why is it that the state militia has one rule, and the People's militia is designated differently under the second amendment. That is infringement.

[/B]
Nothing... except the second amendment.

It doesn't mention limits....indeed it expressly forbids them; that's what shall not be infringed means.
I think we can bicker about what a well-regulated militia means, and rather all People who possess firearms do so pursuant to that reasoning; but to say the State can have one set of rules and the People another is clearly a recipe for tyranny CH--you can't honestly deny that?

I disagree. I think that in times of tyranny from the fed then the states are to protect their people. Now i suppose a state govt and the fed could collude to be co tyrantw but that is unlikely.

For example. If the federal gov came to arkansas to collect everyones guns id fully expect the state gobt to intercede including with military force if neccesary. No reqson for me and my neighbors to do so on our own.

And i think that is what the framers had in mind as well

[Little-Acorn]

If government has the authority to ban some personal weapons, how does it NOT have the authority to (eventually) ban all weapons?

The fact that the above question cannot be answered, is the reason why government has NO authority to ban any personal weapon. As has been demostrated many times, if you give government an inch it will take a mile.

[Tyr-Ziu Saxnot]

If government has the authority to ban some personal weapons, how does it NOT have the authority to (eventually) ban all weapons?

The fact that the above question cannot be answered, is the reason why government has NO authority to ban any personal weapon. As has been deomstrated many times, if you give government an inch it will take a mile.

Was exactly my point as well. --
As my uncle used to say often, "freaking government, give 'em a single grain of sand and they take the whole damn beach"! He damn sure wasn't wrong..-Tyr

[ConHog]

If government has the authority to ban some personal weapons, how does it NOT have the authority to (eventually) ban all weapons?

The fact that the above question cannot be answered, is the reason why government has NO authority to ban any personal weapon. As has been deomstrated many times, if you give government an inch it will take a mile.

Which is why we need cwreful guidelines and a watchful eye on anything our government does. Including this

[Little-Acorn]

Which is why we need cwreful guidelines and a watchful eye on anything our government does. Including this

In this case what is in place is not a guideline. It is a Constitutional amendment that says government shall not mess with people's right to keep and bear arms. And that includes banning ANY personal weapons.

BTW, People seem to forget sometimes that the Federal government has NO AUTHORITY WHATSOEVER to do ANYTHING AT ALL... except for the powers explicitly named in the Constitution. If a power is not named in that document, then the Fed has no authority to do it.

And banning weapons is one of the things not listed.

The conclusion is left as an exercise for the class.

[Kathianne]

Since the Constitution doesn't deny certain rights in the 2nd amendment; the tenth amendment certainly seems to come into play:

Tenth Amendment

Text
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.

Without question then the states could enact laws that curtail 2nd amendment rights. However, the SCOTUS has repeatedly been striking down such laws for years now. In fact, many states are repealing laws that have been passed for years. Indeed, more legislators are acknowledging the data from FBI regarding open carry, concealed carry and lower crime statistics. It's not just robbery and such, rape and murder rates also fall.

[logroller]

Since the Constitution doesn't deny certain rights in the 2nd amendment; the tenth amendment certainly seems to come into play:



Without question then the states could enact laws that curtail 2nd amendment rights. However, the SCOTUS has repeatedly been striking down such laws for years now. In fact, many states are repealing laws that have been passed for years. Indeed, more legislators are acknowledging the data from FBI regarding open carry, concealed carry and lower crime statistics. It's not just robbery and such, rape and murder rates also fall.

Indeed they have been stricken down. As you mentioned Amendment Ten, I think it prudent to mention the preceding Ninth Amendment too.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That just because one amendment(or any other enumerated power) implies some conveyance of power, the strictest adherence should be sought rather than unfettered discretion based on a loosely interpretative meaning of another constitutional item. That's why I believe gun control may be enacted, but only so far as it is done so in its strictest sense; that if, indeed, certain weapons are outside the scope of second amendment protections, then such an exclusion should apply to the States as well. Whats good the gander...

[Little-Acorn]

Since the Constitution doesn't deny certain rights in the 2nd amendment; the tenth amendment certainly seems to come into play:



Without question then the states could enact laws that curtail 2nd amendment rights. However, the SCOTUS has repeatedly been striking down such laws for years now. In fact, many states are repealing laws that have been passed for years. Indeed, more legislators are acknowledging the data from FBI regarding open carry, concealed carry and lower crime statistics. It's not just robbery and such, rape and murder rates also fall.

Kathianne, if the states could enact laws that curtail any constitutional rights, we'd still have slavery.

I'm not sure if you were making the statement bolded above, as an example of why states CANNOT curtail second amendment rights, or if you are actually saying you believe states CAN curtail them.

Since the 2nd says the right to keep and bear arms cannot be infringed, this means NO government can do it. When the Framers wanted to ban the Fed govt from doing something but permit the states to do it (as protected by the 10th amendment as you mentioned), they specifically named the Fed govt as being the govt they were banning. The 1st amendment is an example: It forbids CONGRESS, by name, from making laws about religion, but says nothing about banning state or local govts from making such laws. And as you pointed out, the 10th says that "the states or the people" can still make such laws in that case. The Framers phrased the 1st that way, because many states at the time had official state religions, and the Framers didn't want to interfere with that.

OTOH, the 2nd amendment does NOT say "Congress shall make no law infringing on the right of the people to keep and bear arms". It simply says "For the following reasons, the RPKBA shall not be infringed." Since it doesn't single out an specific govt for the ban (as the 1st does), that means that NO govt can infringe... including "the states or the people".

Long after the Bill of Rights was ratified, the 14th amendment modified parts of it, possibly including the 1st amendment's statement that only the Fed govt is forbidden to make laws concerning religion. The 14th may mean that now all govts in the US are forbidden to make such laws. But no such modification was needed for the 2nd - it already meant ALL governments, from the day it was ratified.