weapons

The Meaning of the Second Amendment

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On Thursday, July 31, 2014, ACS hosted a symposium on the Second Amendment at the National Press Club. Leading experts in the morning panel of the symposium discussed the meaning of the Second Amendment and the implications of this historical context.

This year marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well-regulated Militia.” On July 31, the American Constitution Society hosted “The Second Amendment’s Past, Present & Future” at the National Press Club. The Symposium’s morning panel considered if the Supreme Court got it right in Heller and McDonald.

For decades after the Miller decision, it was generally understood that the Amendment’s scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an “individual right to possess a firearm.” The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies.

Speakers:

Master of Ceremonies, Robert Raben, President and Founder, The Raben Group; ACS Board of Directors
Moderator, Adam Winkler, Professor of Law, UCLA School of Law
Joseph Blocher, Professor of Law, Duke University School of Law
Mark R. Killenbeck, Wylie H. Davis Distinguished Professor of Law, University of Arkansas School of Law
Michael Waldman, President, Brennan Center for Justice, New York University School of Law

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32 Comments

  • Reply
    John Doe
    December 31, 2016 at 3:30 pm

    This is why the ACS was dead at my law school and the Federalist Society was the top organization at the school, even though its ideology was shared by just a few at the school. This symposium is pretty much just an echo chamber. You have two anti-individualists tell you it's not an individual right, you have someone who perhaps believes it is an individual, who knows because he never states it, tell you why all kinds of gun control are perfectly acceptable in light of Heller, and then you have Winkler, who does believe it's an individual right, but he just moderates. So what you give is a boring "discussion" that is more like a liberal circle-jerk.

  • Reply
    Tregeta
    December 31, 2016 at 3:30 pm

    Our entire society and the Constitution was framed around INDVIDUAL rights, not "collective" rights. There is no such thing as a "collective" right, that is an oxymoron. The second amendment is not an exception to this. Read the federalist papers. The founding fathers EXPRESSLY meant the second amendment for the people, not limiting it to only militias. You can't form a Militia without armed civilians. Those civilians are to be armed in advance by natural right. Typical of Ivory tower intellectuals to sit there and pick apart something 20 different ways and re-arrange it to mean something else.

  • Reply
    supergrover6868
    December 31, 2016 at 3:30 pm

    You dont put gunpwoder in a home cause it blows up IDIOTS

  • Reply
    supergrover6868
    December 31, 2016 at 3:30 pm

    These mothefucker ae babblign about a comma. Jesus. This just pure lies.

  • Reply
    SCISUR5R
    December 31, 2016 at 3:30 pm

    Interesting that no one talks about how prophetic our founders were in regard to standing armies and the federal government's ability to render state militias nugatory. They knew the right of the people to bear arms would be the last defense of our freedoms. In their day the state militias were autonomous from the federal army. Given our current state of affairs, I have no doubt that our founders would stand to protect our individual right to own weapons. Today we do indeed have a large powerful standing army and by coopting the state militias into the National Guard, the federal government, indeed, can control their use and preparedness. To me, this is striking and leads me further to conclude the founders knew not only whose rights they were protecting, but also from whom we needed to be protected and worded the 2nd Amendment appropriately, for both their time period and also prosperity. Granted, the use of small arms vs the vast technology and weaponry of our military would be meager at best. It does still yet afford us the opportunity to protect ourselves against tyranny to some degree. Yet all this talk about original intent glosses over and seemingly dismisses what was the original intent of the entire Constitution and from what it sought to protect us, the federal government. As if that means nothing anymore. I find that very disingenuous and disturbing.

  • Reply
    Roger Williams
    December 31, 2016 at 3:30 pm

    just a bunch of highly educated hoplophobic guys. watch them contort every coma and obscure idea to convince themselves what the 2nd Amendment doesn't mean what it says.

  • Reply
    Johnny SilverFoot
    December 31, 2016 at 3:30 pm

    …..

  • Reply
    kichigaisensei
    December 31, 2016 at 3:30 pm

    I've been an NRA life member for a decade and I've never received any magazines from them selling their membership list.

  • Reply
    Allin Lawrence
    December 31, 2016 at 3:30 pm

    we was born with the certain inherit rights I was anyway i have a right to protect and defend myself with any means I deem necessary to protect my life. every living creature fights to stay alive some just more agressive than others but we our body's fight even though our will to live may stop til our last breath.

  • Reply
    Allin Lawrence
    December 31, 2016 at 3:30 pm

    we was born with the certain inherit rights I was anyway i have a right to protect and defend myself with any means I deem necessary to protect my life. every living creature fights to stay alive some just more agressive than others but we our body's fight even though our will to live may stop til our last breath.

  • Reply
    allen poe
    December 31, 2016 at 3:30 pm

    This guy,s are full of shit .

  • Reply
    Chris Smith
    December 31, 2016 at 3:30 pm

    Uh um uh um uh uh uh um uh

  • Reply
    Navaid Syed
    December 31, 2016 at 3:30 pm

    What about millions dying due to guns owned by governments?

  • Reply
    Navaid Syed
    December 31, 2016 at 3:30 pm

    WRONG, again. Neither first, nor second amendment are subject to regulations. None of the rights "shall not be infringed".

  • Reply
    Navaid Syed
    December 31, 2016 at 3:30 pm

    So, you are saying that all the Americans were so stupid that for about 150 years, none of them understood that they have weapons not because of original intent, but, because of English law? You are also suggesting that English law was more conducive of rights that out constitution? Third point is that most of constitutional principles are derived from Magna Carta, an English document and you yourself admit that it was conduciveof individual ownership of guns.

  • Reply
    Navaid Syed
    December 31, 2016 at 3:30 pm

    Even in militia, people were expected and ordered to bring their own weapons and ammunition. How can you expect to bring their own if they are not even supposed own those?

  • Reply
    Navaid Syed
    December 31, 2016 at 3:30 pm

    You are completely stupid or intentionally doing misinterpretation. Right of the people, everywhere else in constitution means individual right. if we take your interpretation than individuals have no right to freedom of speech and so on.

  • Reply
    Navaid Syed
    December 31, 2016 at 3:30 pm

    Your name should be Unconstitutional society. The reason why supreme court did not have a ruling in this regard is because the individual right to bear arms was never questioned before. You may not like this right. but, do not lie, please. If you are right, just sight one example this kind of militia interpretation of second amendment before 1900s.

  • Reply
    Paul Shults
    December 31, 2016 at 3:30 pm

    Informative and interesting. However, I find it troubling that none of these men appear to have any experience with guns. How then can they be fully informed if they have yet to know experientially what it means to have the ability to hunt for food, and more importantly to have a developed a personal skill and comfort at arms for the requirements of self defense?!

  • Reply
    ken1139
    December 31, 2016 at 3:30 pm

    The moment that you see Michael Waldman on the panel, you immediately know that the entire discussion is utter nonsense – revisionist history mixed with fiction and cherry picked quotes. In short, where Michael Waldman is present, expect monumental bullshit. Sorry, this entire discussion is just fundamentally deceptive.

  • Reply
    james rossi
    December 31, 2016 at 3:30 pm

    One would have to love how Killenbeck choose parts of Judge Scalia’s opinion that he disagreed with but let out parts that backed up Scalia’s findings. He talks about text and History but leaves out where that history comes from, and it wasn’t just from the states at the time the Bill Of rights was written. The Militia interpretation goes back to the Steward Kings era, and the Right of the people goes back to English interpretation of peoples rights. To stop only at the writings of the Bill does not reflect the true meaning as to where it came from. Killenbeck also injecting his own politics into the debate with his views on abortion, Exclusionary rule, and sodomy which he clearly disagrees with and that shows his bias views.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    This whole argument against insurrection ridiculous. The difference between insurrection and revolution is very fine and mostly depends on who wins the battle.

    But this panel stated over and over again that the purpose of the Second Amendment was to defend against tyranny. Any defense against tyranny is going to be labeled an "insurrection" by the tyrant and his followers (or her followers). The American Revolution itself was an armed insurrection against the British Crown, their LEGITIMATE government. If they had of lost, all the founding fathers would certainly have been hanged and labeled traitors (and today we would call them terrorists).

    But the real difference here is two fold, first of all principles. Opposing the government just because you disagree is not noble and not what the founding fathers did. Their opposition was an opposition of the principle of self government vs. government by kings. This wasn't just "we don't like this tax or that law". This was about right and wrong and freedom and democracy and I think that's important here.

    But second, the difference is the number of people involved. Not everyone sided with the colonies in the American Revolution. Yet we "generally" believe that the founding fathers did the right thing and we don't label it an insurrection. The key here is that the majority of the people decided to have that revolution.

    One of the key differences between that and the Whiskey Rebellion or Shae's Rebellion and the American Revolution is the number of people on either side.

    The Second Amendment is not there to justify solving your personal disagreements with the government using a rifle. It's purpose, as this panel stated, is to prevent tyranny. And a key component of this is to understand that no American tyrant will EVER be able to engage in blatant tyranny when there is a rifle in every closet in America. The rifles don't even have to leave the closet for this to be effective. As long as the tyrant knows that if he pushes the people too hard those people are willing to bring the rifles out of the closet, the tyrant will never go there because it's just too costly. Instead they will engage in their tyranny by much more subtle means.

    The Second Amendment is there to make sure the politicians count the votes in the ballot box for fear that – if they refuse to count the votes in the ballot box and instead do what THEY want rather then what the people want – they will face the peoples' wrath. 

    The difference is a small group of people unjustly attempting to oppose the law as opposed to a majority of the citizens of the United States opposing the unlawful or unjust government backed by 100 million American rifles. The first is not what the Second Amendment ever protected and the Second is what it has always protected.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    It's not true that "all guns are not the same" to the degree that you imply. You're insinuating that there are these "especially dangerous" guns that you are opposed to but you're not opposed to all guns.

    Look up "jerry miculek world record revolver reload" on YouTube. That's a revolver he's shooting. Granted, he's practiced a whole lot to be able to fire a revolver at machine gun speeds and reload it in a fraction of a second to keep going. But it shows what's POSSIBLE with a revolver and has always BEEN possible with a revolver since they were invented about 150 years ago.

    You admit that you know nothing about guns. And if you did, you would understand that the only guns that you oppose are: the ones that shoot bullets. Because the fact of the matter is that all of them give the holder the ability to kill someone dead with a single shot (although with today's medical technology you could be shot with ANY of them and have a reasonable chance of living and being just fine depending on where you get hit – and that's the REAL key: where you get hit not what you get hit with). It doesn't require "high capacity" or "high speed" or "high caliber" to kill someone.

    Some guns are more effective then others. For example, the dreaded AR-15 shoots a round so weak that it is prohibited for hunting in many states except with small game for fear it will only injure animals and not kill them. Your "average" hunting rifle is FAR more powerful then an AR-15. That doesn't prevent the military from using the military version of the AR-15 for soldiers (who are backed up by artillery and much heavier weapons) because the weak bullets are small and thus light weight making it easy for a soldier to carry as many as possible since they have to carry ALL of the ammo they are likely to get for the battle on their person all day long every day. Also, those small weak rounds allow you to fit 30 into a magazine where as a more standard hunting round like the 7.62 can only fit 20 into a magazine and weighs a lot more.

    But that doesn't mean you can't kill someone with a small weak bullet. Many people have been killed by a .22 round. And historically .22 has always been considered a "kid's gun" because parents used to give their kids .22's figuring they wouldn't be able to cause as much damage with them as a "real" rifle.

    It might be noted that an AR-15 actually shoots a .22 caliber bullet but the difference between that and a .22 rifle is that the bullet is longer and has a whole lot more gun powder behind it for the AR-15's .22 caliber bullet. So, it does hit with a lot more force then a .22 rifle but it's still not as much as an average hunting rifle.

    So, yes. Some guns are a little more effective then others. But this enormously wide range that you imagine is just that: your imagination. They ALL make it possible for a mentally deranged teenager to kill a whole crowded room full of people. Even if they can't reload quickly, they can carry multiple guns and they often do. So if you can't have "high capacity" then you just bring more guns. It's that simple. Not that the 2 seconds it takes to reload a gun is all that much time to change the situation anyway, especially if they're smart enough to keep a backup gun while reloading the main gun just in case someone decides to rush them while reloading. With two revolvers you can reload one while using the other to keep anyone from rushing you during the reload and shoot all day.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    The NRA did not really talk about the Second Amendment until the 1960's primarily because the Second Amendment was not at risk until the moral decay of the 1960's which coincided with increasing attacks on the Second Amendment.

    Up until the Gun Control Act of 1968, there basically were no gun laws in the county at the Federal level other then the National Firearms Act of 1934 which requires you and your gun to go on record with the Federal government in order to purchase a machine gun, sawed off shotgun, silencer, etc.

    So, up until 1968 serial numbers were not required on guns, anyone could sell guns to basically anyone else without any sort of license, you could buy guns out of a catalog and have them shipped directly to your home or office (background checks didn't come about until long after the 1960's when the Brady campaign pushed for them after Regan was shot), foreign guns could be brought into the country, and there were no restrictions on "assault weapons" or what type of semi-automatic firearm you could buy. In short, there were basically no across the board gun laws until the liberals pushed for more gun control after JFK, Malcom X, Martin Luther King, and Bobby Kennedy were shot in the 1960's.

    So, up until the late 60's there was no NEED or reason for the NRA to defend the Second Amendment because it really wasn't under attack unless you count the National Firearms Act of 1934 restricting machine guns.

    It was in response to these increasing efforts against the Second Amendment by liberal progressives of the late 1960's that caused the NRA to become a lobbying group for the first time in it's over 100 year history. There simply was little to no need for it before the 1960's because basically no one was really trying to end the Second Amendment in this country until then.

    It should also be noted that no single gun law has "ended the Second Amendment". It is what the Bill of Rights calls "infringement", like pulling apart a piece of cloth one fringe at a time. The anti-Bill of Rights folks restrict what they can today and come back for the rest tomorrow. They started with the NFA in 1934. They really got after it with the GCA of 1968. They really crossed the line with the Assault Weapons Ban of 1994. And they keep coming back for more no matter what you give them even today. It's all about "What will you allow us to take from you today?" all the while knowing that whatever it is they'll be back to take more tomorrow.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    The "libertarian" argument against government overreach in gun laws is not a "relatively new argument".

    First of all, it's not a libertarian idea; it's what's IN the Constitution and the Bill of Rights. The founding fathers thought that way.

    If government "lost it's way" along the way, that different then "it never was that way".

    It's somewhat irrelevant what gun restrictions were legislated in American history. MANY laws in history have been on the books for quite some time and then the Supreme Court ruled that they were ALWAYS un-Constitutional. So, there is no doubt there have been all sorts of un-Constitutional laws on the books throughout the country and throughout American history. None of that matters. What matters is what the Constitution says and why.

    And yes, we regulate unalienable rights. Child pornography is regulated free speech that you gave as an example. But the key there is not that the government can tell you whether or not you can own camera or what kind of film you are allowed to use. That regulation is NOT a regulation against free speech; it is a regulation against using your free speech to hurt someone.

    No one is arguing that the government doesn't have the right to regulate your ability to shoot people with your gun. No one is arguing that you have a right to threaten people with your gun. Of course, the government has a right to regulate unalienable rights to prevent you from using those civil rights to harm others. And that's really all DC vs Heller said.

    The key here is that you WANT to regulate guns out of existence. You're willing to work within the confines of the law to regulate what you are legally allowed to and no more. But at the end of the day, what this is really about is your entire purpose here is to increase regulation as much as possible to do away with guns as much as legally possible and more importantly as much as the voters will allow you to get away with. The only gun restrictions you want are the ones the voters will not oppose you on and your purpose is to push those as much as possible to find out just how far the voters are willing to go.

    You fought Heller vs DC all the way to the Supreme Court and lost. And now that the Supreme Court has put you in your place you're coming back to see what you CAN get taken away from American citizens now that you've been told what you tried the last time is over the line.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    The Second Amendment NO WHERE states that the "People have a right and civic duty to serve in a militia". You can CLAIM that's what it's about all you want, but that doesn't change the fact that it no where states that the people must be members of the militia or have ANY duty of any sort. Furthermore, it says that the right to keep and bear arms is a right of the PEOPLE and NO WHERE does it say that is a right of the militia other then the fact that the people ARE the militia.

    What it DOES say is that the PEOPLE have a right to keep and bear arms which shall not be infringed (legislated away by one little law after another after another after another after another)!

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    Another way you're attempting to twist this is by separating Federal government tyranny and state government tyranny. Now certainly tyranny of the Federal government is the primary concern. But many state governments today are MUCH larger then the entire Federal government at the time the Bill of Rights was written.

    Tyranny is tyranny no matter at what level of government it occurs. The founding fathers were NOT saying that Federal government tyranny is bad but state government tyranny is "just fine" as you are insinuating. If the country had of remained under the Articles of Confederation, the state governments would have been supreme and would have been the primary source of tyranny against the people. At the time states only had a handful of people in them, so this was of a lesser concern although they still had state Constitutions to address those concerns. States today are larger then the entire Federal government was during that time.

    I'm showing that the entire population of the United States was 2.5 million in 1776. It looks like the population of New York City today is about 8.3 million which is over 3 times as many people in ONE city as in the entire country in 1776.

    If the founding fathers were concerned about a tyrannical government where a few people controlled the 2.5 million people of the United States back then, how much MORE concerned would they be with the tyrannical government of a state like New York state with it's 19.5 million people controlled by a handful of tyrants!?

    The Bill of Rights is not about states rights. And states rights vs Federalism is not about state government vs Federal government; it's about the rights of CITIZENS against GOVERNMENT regardless at what level or what size that government is.

    You keep emphasizing that the Second Amendment was intended to prevent FEDERAL tyranny. You're trying to twist that into a state government vs Federal government sort of thing. But that's just ridiculous. Tyranny is tyranny regardless of what level of government it occurs at. And more importantly tyranny is an issue of the CITIZENS vs the tyrannical government, not one level of a tyrannical government against another. The concern in the Bill of Rights is NOT that politicians at the state level need the ability to oppose politicians at the Federal level; the concern addressed there is the CITIZENS of the United States needing the ability to oppose the politicians at the Federal level. State Constitutions address that issue at lower levels.

    By admitting that the Second Amendment has the purpose of preventing tyranny, you are admitting that the individual CITIZENS as a collective body must have that right to prevent tyranny because state politician vs Federal politicians has nothing to do with tyranny unless those state politicians are the defenders of the individual citizens suffering the abuse of tyrants.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    You keep trying to twist the meaning of the words "the people". Why is this so difficult to understand? The people is the citizens of the United States. It's BOTH collective AND individual at the same time. The Second Amendment says the PEOPLE have the right to keep and bear arms, not the militia. So, the discussion on the militia is largely irrelevant in terms of who has the right.

    What you are attempting to do is eviscerate the Second Amendment by limiting it to specific time periods. Specifically, you are trying to say that the people ONLY have a right to keep and bear arms while they are participating in a militia. And that's just a twisted excuse for logic if I've ever seen one.

    First of all, it doesn't say that. NO WHERE in the Second Amendment does it say that the people only have the right to keep and bear arms while serving in a militia. Similar statements in state Constitutions of the time make it clear that many at the time considered this an individual right to self defense.

    Second, you admit over and over that the militia IS all able bodied citizens of the United States and that their service in the militia is their ENTIRE life from adulthood to to elderly to fight. So let's review that. You are trying to limit the right to keep and bear arms to ONLY EVERY able bodied adult citizen of the United States. And you're trying to limit that to ONLY when they are serving in the militia, which is not just when practicing military drills but rather JUST EVERY waking moment from the time they reach adulthood until the time they are too elderly to operate a gun. Have you stopped to think about how ridiculous that is? Really!?!? Really!?!?

    What you're TRYING to do is suggest that we no longer have Second Amendment rights because we no longer participate in militias. So, will you be happy if I get my buddies together and call ourselves a militia and go out and practice military drills on the weekend? You've already said that the purpose of these militias is to be prepared to defend against tyranny and a standing army of the Federal government. I mean, is participating in military drills here what you want from us in order to claim our Second Amendment rights? Or can we just admit that every able bodied citizen of the United States has an INDIVIDUAL right to keep and bear arms from adulthood until death? I mean I can round up my buddies and go practice military drills if you like? But I'm thinking my Constitutional rights exist even if we don't.

    Just because the militia is not currently active does not mean it does not exist.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    How do you start off with these truths which you clearly admit:
    -The founding fathers wanted to have militias rather then a standing army because they wanted to prevent tyranny
    –The militia was EVERY able bodied citizen of the United States (men only at the time, but still)
    –The Second Amendment states that reason a militia is necessary is to prevent tyranny (secure a free state or in more plain English – insure a state of freedom)

    And then somehow you twist that and come to the conclusion that it's OKAY to disarm the citizens of the United States and that the PEOPLE have no right to keep and bear arms because the militias are no longer FORMALLY organized.

    Let's review. ALL of the citizens of the United States were the militia. Just because we no longer get together and practice military drills doesn't change the fact that WE THE PEOPLE ARE the militia.

    You're TRYING to twist this into meaning that only government controlled state national guards have the right to keep and bear arms. But you're ignoring the fact that that right is a right of the PEOPLE and not a right of the militia according to the Second Amendment. You're also clearly ignoring what you just acknowledged which is that the primary purpose of the Second Amendment is to prevent tyranny by making sure that ALL citizens of the United States who are capable of fighting are ARMED to do so against TYRANNY.

    The state national guards are under Federal authority and really not any different from the Federal army in regards to tyrannical government. The militia quite CLEARLY is not the same thing in purpose as the state national guards which didn't even exist until about 100 years later. A state national guard cannot prevent tyranny for several reasons including that it is under the authority of the government which would be the source of that tyranny.

    The whole point of the militias, which your "expert" there just admitted to, is that their purpose was to arm every citizen so that a tyrannical government could not command them to turn their guns on themselves. But there's no doubt a tyrannical government could command the national guard to turn it's guns on the people just as easily as it could have commanded a standing army to, which your "expert" there says was what the founding fathers were attempting to insure in the Second Amendment.

    If you just simply listen to what you are saying, there's only one conclusion that you can reach from the words coming out of your "expert's" mouth, and that is that the purpose of the Second Amendment is to prevent tyranny, and the only way to do that is to give EVERY citizen of the United States who is legally an adult an INDIVIDUAL right to have and carry military weapons.

    Whether we gather in militias today is irrelevant. (Although according to you, the guys that go out and play military with rifles in the woods are the only ones protected by the Second Amendment.) You state quite clearly that the purpose of the Second Amendment is to prevent tyranny. That being said, the remedy given for tyranny in the Second Amendment is for the PEOPLE to keep and bear arms.

    And as to your arguments that the "people" is a "collective" people, just substitute the word "citizens" if that helps you see the obvious. The right of the CITIZENS to keep and bear arms shall not be infringed. That means each and every citizen.

    How do you even come up with the ridiculous idea that citizens only have a right to stand up against tyranny when they are collectively involved with a government controlled army? Once you admit that the purpose of the Second Amendment is to prevent tyranny, it becomes pretty clear that the remedy most certainly cannot be to arm the government controlled soldiers. Yet, that's exactly what you keep trying to twist this into by saying that this is a right that only exists when citizens unite into a "militia" which is basically the Federally controlled national guard. That doesn't even begin to make sense.

    Once you admit that the purpose is to defend against tyranny, the ONLY conclusion you can come to is that the Second Amendment is an individual right to own and carry military weapons (because how else are you going to oppose a tyrant's army) for the purpose of coming together as the citizens of the United States to oppose tyranny. Just because it's an individual right doesn't mean you can engage in armed insurrection; the purpose is when the majority of US citizens choose to rise up against the government they are all individually armed.

    Furthermore, you're kind of trying to insinuate that this was not intended to "give" people the right to self defense. It's true that it primarily addresses tyranny rather then self defense. But the 9th Amendment says that the Bill of Rights does not include EVERY unalienable civil right. And the state Constitutions of the time, as you've said, spoke of a personal right to self defense with firearms.

    But the right to self defense is an unalienable civil right which pre-exists the US Constitution. The Bill of Rights does not GRANT these rights; they existed before the Bill of Rights was written. And amongst them is a right to defend one's self and one's family against those who would kill them or cause them great bodily harm.

    Your logic is all over the place and completely inconsistent. If you merely listen to the words coming out of your own mouth for a change, you'll be joining the NRA pretty soon.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    You go out of your way to stress that the states made it clear that the people had an individual right to protect themselves with firearms in their individual Constitutions. Then you try and say that's NOT what the Bill of Rights intended. But you are ignoring the fact that those SAME states were the ones that ratified the Constitution and the Bill of Rights.  It's irrelevant what the delegates who signed the documents believed; what matters is what the states believed who ratified the Constitution and Bill of Rights.

    Those people understood that they had a personal Constitutional unalienable right to self defense. It was enshrined in their state Constitutions which was THE highest law of the land in America until the US Constitution was ratified later. Do you REALLY think they intended to give up those rights by ratifying the US Constitution? That's just ridiculous.

    The US Bill of Rights clearly states that the PEOPLE have the right to keep and bear arms which SHALL NOT be infringed. It doesn't NEED to say WHY and for WHAT PURPOSE, but it does say that one of those purposes is for a citizen army (militia) to be able to defend against tyranny.

    You are doing your best to revise history, but the fact of the matter is that the right to keep and bear arms for the purpose of self defense was so well understood at the time the Bill of Rights was written that it's enshrined in several of the state Constitutions of that time even if it's not fully spelled out in the Bill of Rights. All the Bill of Rights really says is that the Federal government cannot make laws that disarm the people.

  • Reply
    Brennen Beck
    December 31, 2016 at 3:30 pm

    "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."

    –A well maintained militia because such is necessary to insure a state of freedom, the right of the PEOPLE to have and carry military weapons shall not be legislated away one fringe at a time.

    The right to keep and bear arms is given to the PEOPLE, not the Federal government, not the states, not the national guard, and not even to the militia. The militia clause is only there to help clarify why citizens should be allowed to carry weapons with them and cannot be disarmed by the government.

    This was already understood in the state Constitutions as was mentioned in this discussion.

    The Supreme Court in Heller said that this personal right has ALWAYS been the personal right of Americans since the Constitution was written over 200 years ago. The Supreme Court is not there to CREATE laws. They are ONLY there to determine whether a law agrees with what the Constitution has ALWAYS said. To pretend that Heller created a NEW law is ridiculous.

    Tyranny was always a primary concern of the founding fathers while the Constitution and Bill of Rights were being written. That was the reason that so much emphasis was put on militias and the Federal government was not even given the power to have a standing army under our Constitution. The Constitution quite clearly says that Congress has the power "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;" No money for an army was allowed to exceed funding an army for more then two years.

    The prevention of tyranny is the primary purpose of the Second Amendment. It's spelled out in the statement that a militia (as opposed to a standing army) is necessary "to the security of a free state". A standing army could provide security to keep a state free from foreign invasion. To say that the term means "to defend a state" is ridiculous. If the purpose of a militia stated in the Second Amendment is to defend the state against foreign invasion is to defend the state against foreign invasion, why use the word "free"? Why a "free state"? Wouldn't you say "to the security of THE states"? No, it means to defend against a tyrannical Federal government that would deny the PEOPLE a state of freedom.

    And why would the PEOPLE need to be armed to defend against foreign invasion? Couldn't the army do that? Well, because the Federal government was not allowed to HAVE a standing army funded for more then two years. Without an army, someone has to defend the country. The founding fathers provided for ALL able bodied citizens to be the primary army of the United States because it is absolutely impossible for a tyrant to use the army against the people when the people themselves ARE the army.

    And above all else, why have a statement about national defense against foreign invasion in the Bill of Rights? It doesn't even make sense to include such a statement in the Bill of Rights. The Bill of Rights is nothing but a list of, as the Declaration of Independence calls them, inalienable rights of the People that the Federal government is not allowed to take away from the PEOPLE. The only part of it that even mentions State's rights is the 10th Amendment which basically says that "Any power not SPECIFICALLY spelled out in the Constitution is NOT a power of the Federal government but rather a power of state government" and notice that that is at the END of the Bill of Rights almost as a footnote. The 9th Amendment even goes so far as to basically say "If we left any right of the people off this list, the Federal government had better not think people don't HAVE that right." (The right to be free from slavery for example being a right that was not enumerated until much later.)

    But you have to consider the purpose of the document itself. The Bill of Rights is a list of powers that the Federal government is forbidden to ever have over the citizens of the United States. And the right to keep and bear arms is at the top of the list right after the most basic civil rights of the First Amendment.

    In 1876 the US Supreme Court acknowledged that the right of citizens to keep and bear arms is a civil right in the United States vs Cruikshank case. The court said …"The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. "… The anti-gun crowd likes to pretend that this decision was that "there is no right to bear arms in the Constitution". But if you take the time to understand the case and read what the decision actually SAYS, it's quite clearly NOT stating that the Second Amendment does not exist as some suggest. If you go back and read that statement, what it is really saying is "The Second Amendment is not GRANTED by the Constitution; it does not depend on the Constitution for it's existence.". In other words, the Second Amendment is from a higher law then the Constitution and even if the Constitution did not exist the Second Amendment would still exist. More to the point, even a Constitutional Amendment cannot take away the inalienable civil rights spelled out in the Bill of Rights because those rights come from a higher law that is above the US Constitution.

    "We hold these truths to be self-evident, that all men are created equal (under the law – not in other ways), that they are endowed by their Creator with certain UNALIENABLE RIGHTS, that AMONG these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…"

    The Declaration of Independence states that these rights, which start with life, liberty, and property but there are others, are endowed upon all people by God and that governments are ONLY created by men to secure (there's that word again used to mean "insure") these rights. And it says that JUST government can only come from the consent of the PEOPLE.

    In the US vs Cruikshank, the US Supreme Court said that the Second Amendment right of the PEOPLE to have and to carry military weapons is amongst those unalienable civil rights that exist above the Constitution itself. (If the purpose of the Second Amendment is self defense and the prevention of tyranny, then the arms mentioned must be military weapons capable of preventing tyranny. This is inline with the US vs Miller decision which said that only military weapons are protected by the Second Amendment although the Miller decision is questionable on a number of levels including the fact that the weapon in that case IS used by militaries around the world and that the case was lost primarily due to the defendant not having enough money to defend himself.)

    So, the idea that DC vs Heller CREATED a new right to bear arms is just ridiculous. That right was affirmed well over a century ago in 1876, just 100 years after the Declaration of Independence when the Supreme Court stated in by US vs Cruikshank …"The right to bear arms is not GRANTED by the Constitution; neither is it in any manner DEPENDENT upon that instrument for its existence. "… or said more plainly "The right of US citizens to carry arms is not granted by the Constitution and exists even if that document had never existed".

  • Reply
    David Chipman
    December 31, 2016 at 3:30 pm

    Very interesting talk. Thank you for posting this. Was the second discussion mentioned recorded and made available on YouTube?
     

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