2nd amendment

[Alien Space Bats]

To me, the 'majority' seemed to be rationalising. Shaping interpretation to agenda. i.e. they'd decided the opinion, and then they tried to make the opinion constitutional, rather than (what I think they were paid to do) determining whether what they were considering was constitutional or not, and then shaping their opinion based on that.

To me, the minority opinions seem less politically and ideologically motivated, more grounded in history and precedent.

Really? So when the 39th Congress elected to incorporate the Bill of Rights through the 14th Amendment, you don't think that they intended to take away from the States the right to choose who could and could not bear arms? Honestly, G&I?!?

At the time of the passage of the 14th Amendment, it wasn't just vigilante groups like the KKK out there killing freedmen; many former Confederate soldiers had been organized into "official" armed watch units and reorganized State Militia organizations; if the right to bear arms was only one that members of the Militia were supposed to have, then what was there to stop the Southern States from disarming all blacks for the purpose of terrorizing them into submission?

Congress knew damned well what it was doing in incorporating the Bill of Rights; more than that, as I will eventually show, it knew that it was giving blacks the right to arm themselves against the Klan and against white authorities who sought to drive them back into effective bondage. There is ample evidence of this. Any argument that says that only the police and the Militia ought to have guns, and that such a thing is all the 2nd and 14th Amendments combined support is an argument that completely and utterly ignores the God-awful mess that was Reconstruction, and assumes that Congress neither noticed what was happening in the South, nor cared enough to try and stop it.

I'm not sure why it should be a partisan issue, though. You say "a reversal could then be used later to reverse several other rights championed by the left side of the court", but it shouldn't be a 'left' or 'right' issue - and it shouldn't be about a conflict between 'one set of rights' and another.

I think the best argument is that the Constitution explicitly defines a right to keep and bear arms, but that there is a specific justification. Moreover, I think that justification is good. The problem is that the text is being perverted to fit an agenda, rather than do either of the things we really OUGHT to do if the Constitution matters. Either: 1) amend the Constitution to make the Second Amendment explicitly non-conditional and universal, or: 2) apply the logic that drove the Second Amendment, and tie the right to keep and bear arms to a well-regulated militia with a specific focus.

The problem with your argument is that Congress already chose (1) as a remedy to the problem in question. Indeed, it actually made that choice and did as you ask 144 years ago.

The problem - and it's been a problem ever since then - is in getting some people - including, BTW, enough people on the U.S. Supreme Court - to recognize that fact. You'd think a freaking century and a half would be time to absorb the message would be enough, but sadly one need only look at the "Ron Paul R[EVOL]ution" to see that it just ain't so.

[Spreewerke]

Since every male has to register for the draft at the age of 18, couldn't you consider that a militia since, to an extent, they are part of the military as soon as the government asks (tells) them to be?

[Geilinor]

I don't have a problem with the right to bear arms, the problem is that insane people will have access to them no matter what you do.

[Cordite]

To me, the 'majority' seemed to be rationalising. Shaping interpretation to agenda. i.e. they'd decided the opinion, and then they tried to make the opinion constitutional, rather than (what I think they were paid to do) determining whether what they were considering was constitutional or not, and then shaping their opinion based on that.

But the Heller decision conforms to every other SCOTUS decision regarding the right to keep and bear arms and the 2nd Amendment (two different and distinct things). The only thing the Heller majority did was correct a 66 year long tangent of illegitimate court decisions which had the singular intent and effect of extinguishing the claims of rights violation by US citizens in the courts of the USA.

To me, the minority opinions seem less politically and ideologically motivated, more grounded in history and precedent.

The "collective right" and "state's right" and "militia right" interpretations are of recent origin in the federal courts. They were introduced in 1942 in two lower federal court decisions; Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) (39kb pdf) and U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) (52kb pdf).

Before 1942 the theories (especially the "militia right" theory) were only found in Antebellum and Reconstruction South state court decisions which held that the right to arms was only extended to the militia . . . which of course served to affirm laws that kept Blacks disarmed (since Blacks could not serve in the militia).

Both these 19th Century state court and the federal examples of conditioned right interpretations begun in 1942 intended only to restrict rights not defend them. So yes, the interpretation you embrace does have a history and precedents and none of it has any connection to the Constitution.

If you bother to read the decisions I link above, pay special attention to Cases v US. It offers a true and honest reading of the Supreme Court's Miller decision handed down just three years before . . . The Cases court then proceeds to dismiss and ignore the obvious determinations that Miller demands. If you want to denounce court opinions because they are politically and ideologically motivated, outcome based rationalizations, at least familiarize yourself with what that really looks like.

I'm not sure why it should be a partisan issue, though. You say "a reversal could then be used later to reverse several other rights championed by the left side of the court", but it shouldn't be a 'left' or 'right' issue - and it shouldn't be about a conflict between 'one set of rights' and another.

But nowadays it is essentially a left vs right issue and greed and death has it right about the left's hostility for the right to arms and the methods they use to extinguish it, can be used to attack rights that the left cherishes. As noted (liberal) Harvard Law professor and constitutional authority Alan Dershowitz said:

• "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
  
  Alan Dershowitz, quoted in The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason, Dan Gifford, 62 Tenn. L. Rev. 759, 789 (1995).

The problem is that the text is being perverted to fit an agenda,

Correct! The text of the 2nd Amendment that the right does not in any manner depend upon is being presented as a "justification" for the exercise of the right.

Rubbish indeed.

1) amend the Constitution to make the Second Amendment explicitly non-conditional and universal

It already is.

2) apply the logic that drove the Second Amendment, and tie the right to keep and bear arms to a well-regulated militia with a specific focus.

You are arguing for a recent "meaning" that was introduced into the federal system in 1942. The "logic that drove the Second Amendment" was focused on the principle of specifically enumerated conferred powers and the fear that for even a government structured in such a restrictive manner, artful misconstruction could create powers where none existed so a Bill of Rights was demanded to enumerate liberty interests (as examples of innumerable others) where the government can not step.

Others thought that because the government's powers were so strictly limited by the Constitution adding bill of rights was an insult to the Constitution and actually worked to endanger Liberty. They argued (and for one claiming to be concerned with respecting founding logic, this is important):

• "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?
  
  Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
  
  They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."
  
  The Federalist 84 (paragraph breaks added)

Your position is precisely what the Federalists warned us about, reading a provision that only intends to render government impotent into creating a power to restrict the right.

[Safed]

Why do some citizens of the USA believe they have a "God-given right to bear arms"

The "God given right" thing is a reference to the Declaration of Independence stating that we are endowed with certain inherent and inalienable rights by our Creator. IMNSHO, that was not a definitive theological statement it was only an oppositional political argument in rebuttal to the British system's fundamental "divine right" of the king to arbitrarily rule however he desired.

Our rights were considered inherent, existing in us simply by being a creature of reason. Humans being social animals come together and form societies and structure them to benefit the members, to protect the rights of the members. The US Constitution is founded upon these principles and ensures them with the founding understanding that the Constitution is a charter of conferred powers that the people grant to government. The constitution's grant of powers to government is limited by these specific enumeration of powers and it is understood that all powers not conferred are retained. Some of those powers are then conferred to state governments while others are fully and completely retained by the people . . . Those are called rights -- complete exceptions of powers that were never granted to government.

Whether you believe in God as the origin of rights is immaterial to the discussion. All that matters is that you understand that the US government is contractually bound to treat the inherent and retained rights of the people as emanating from a plane above the legislative acts of man and completely excepted out of the powers granted to the government.

when the actual second amendment was not written in such a way as to condone the carrying of firearms by civilians.

The people were exercising their right to arms before the Constitution was established and before the Bill of Rights was ratified. No power was conferred through the Constitution to government to allow government to have any impact whatsoever regarding the personal arms of the private citizen. The right to keep and bear arms is a pre-existing and fully retained right; the government can not "condone" something it has no power over.

I think a lot of the confusion comes down to people just quoting the second half of this amendment, nicely ignoring the militia part.

The confusion is caused by people who have no understanding of the fundamental concepts of conferred powers and retained rights reading the 2nd Amendment as a permission slip and inspecting it to learn the precise and exact limits of the right . . . To discover what the government will allow the people to do.

Needless to say, such a mindset is wrong, such an endeavor is worthless and such a belief is dangerous.

Thankfully, for 136 years and counting the Supreme Court has never wavered in its determinations about the right to arms and the 2nd Amendment (two different things). The right to arms is not granted, given, created or established by the 2nd Amendment. The right existed before the Constitution was written thus the existence of the right does not in any manner depend on the Constitution or the 2nd Amendment. It defies logic and reason to "interpret" conditions, qualifications and restrictions on the right to arms from the 2nd Amendment when the right in no way depends upon the 2nd Amendment to exist!

IOW, the right to arms does not exist because of a particular interpretation of the 2nd Amendment (or only reading half of it) . . . The right to keep and bear arms exists because no power was ever conferred to government to allow it to even contemplate the personal arms of the private citizen. If you want to learn the full and complete extent of the citizen's rights you don't examine the Bill of Rights; you examine the Constitution for a grant of power that permits the government to act in that area.

All the 2nd Amendment really "does" is redundantly forbid the government the exercise of powers never granted to it.

The divine right of kings was removed as a British belief before Britain existed, in fact it ceased to be believed about 100 years earlier during the period of the Stuart rule.

[Cordite]

The divine right of kings was removed as a British belief before Britain existed, in fact it ceased to be believed about 100 years earlier during the period of the Stuart rule.

The Declaration of Independence stated that the, "history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

If the title of "King of Great Britain" and "State of Great Britain" and yes even "the British Crown" was a good enough descriptor of the tyrant for Jefferson and the 55 other Patriots who signed the DoI, it is good enough for me.

As for your contention that the 'divine right of kings' was 'removed' and 'ceased to be believed'; . . . I just have to laugh. The political treatises of the day, that were read and appealed to by both sides certainly were not recast. The absolutism of Bodin and Filmer was the oppositional argument against the concepts of conferred powers and retained inherent rights and a legitimate government governing with the consent of the governed and the justification for rebellion advocated by Locke and Sidney embraced by the founders / framers . . . Any decree saying that the divine right has ceased to exist has as much force as the Pope saying Limbo has ceased to exist. Old beliefs, especially when they serve only to consolidate and reinforce power, die hard.

Is that really all you found to disagree with in my post?

[Safed]

The divine right of kings was removed as a British belief before Britain existed, in fact it ceased to be believed about 100 years earlier during the period of the Stuart rule.

The Declaration of Independence stated that the, "history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

If the title of "King of Great Britain" and "State of Great Britain" and yes even "the British Crown" was a good enough descriptor of the tyrant for Jefferson and the 55 other Patriots who signed the DoI, it is good enough for me.

As for your contention that the 'divine right of kings' was 'removed' and 'ceased to be believed'; . . . I just have to laugh. The political treatises of the day, that were read and appealed to by both sides certainly were not recast. The absolutism of Bodin and Filmer was the oppositional argument against the concepts of conferred powers and retained inherent rights and a legitimate government governing with the consent of the governed and the justification for rebellion advocated by Locke and Sidney embraced by the founders / framers . . . Any decree saying that the divine right has ceased to exist has as much force as the Pope saying Limbo has ceased to exist. Old beliefs, especially when they serve only to consolidate and reinforce power, die hard.

Is that really all you found to disagree with in my post?

It's not all I found to disagree with, but yes, the divine right of kings ceased to be part of British belief in the mid to late 1640s, culminating in the death of Charles I, and the founding of a protectorate. Of course, the monarchy returned in 1659, but the system then had many checks and balances, such as parliament, as it was believed that total power in the hands of one person within the nation can lead to disaster, as Bush aptly showed.

The disbelief in the divine right of kings was then further shown when James II tried to rule without parliament, and cited said right. He was deposed and replaced with William of Orange. The power of the monarchy then steadily decreased to the present day, where the Queen is mostly just a figurehead. Certainly in, the time of the American Revolution, parliament and the prime minister had a similar level of power to the monarch. There was no decree saying it ceased, it just did through the way that England is structured, and was structured. In much the same way that militant religion has pretty much ceased here, unlike the pretty medieval beliefs held by some on the far side of the Atlantic.

EDIT: I just wanted to further state, that James II, who was the last monarch to believe in the divine right of kings, ceased to rule in 1688, roughly 100 years before what we are talking about.

[Big Jim P]

@ the OP: Every able-bodied male above the age of consent WAS the militia. Any other dumb questions?

Oh, and they were expected to show up when mustered, bearing the common military weapons of the time.

[Raeyh]

@ the OP: Every able-bodied male above the age of consent WAS the militia. Any other dumb questions?

Oh, and they were expected to show up when mustered, bearing the common military weapons of the time.

So why do we still need people to have guns when we don't have a militia anymore?

[Big Jim P]

@ the OP: Every able-bodied male above the age of consent WAS the militia. Any other dumb questions?

Oh, and they were expected to show up when mustered, bearing the common military weapons of the time.

So why do we still need people to have guns when we don't have a militia anymore?

Well, I probably could argue this on many levels, but ultimately, it comes down to this: My personal security, as provided by my ability to defend myself, up to and including the use of lethal force, trumps your false sense of security in others defending your well being.

[Raeyh]

So why do we still need people to have guns when we don't have a militia anymore?

Well, I probably could argue this on many levels, but ultimately, it comes down to this: My personal security, as provided by my ability to defend myself, up to and including the use of lethal force, trumps your false sense of security in others defending your well being.

I just don't want people who are armed, yet have no superior to direct them.

[Big Jim P]

Well, I probably could argue this on many levels, but ultimately, it comes down to this: My personal security, as provided by my ability to defend myself, up to and including the use of lethal force, trumps your false sense of security in others defending your well being.

I just don't want people who are armed, yet have no superior to direct them.

What do you do once you get to the top though? Apparently it's turtle all the way up too.

I have no superiors, and damn few equals. What do you do in my case?

[Raeyh]

What do you do once you get to the top though? Apparently it's turtle all the way up too.

The superior officers aren't the ones who are armed, they just direct armed people. Being detached from combat, they are able to make more logical choices rather than being moved by the heat of the moment.

I have no superiors, and damn few equals. What do you do in my case?

Superior in rank, not in ability.

[Gun Manufacturers]

What do you do once you get to the top though? Apparently it's turtle all the way up too.

The superior officers aren't the ones who are armed, they just direct armed people. Being detached from combat, they are able to make more logical choices rather than being moved by the heat of the moment.

I have no superiors, and damn few equals. What do you do in my case?

Superior in rank, not in ability.

I have a higher rank than Bambi, Thumper, Bullwinkle, Rocky, and inanimate objects usually used as targets. Therefore, I win.

[Raeyh]

I have a higher rank than Bambi, Thumper, Bullwinkle, Rocky, and inanimate objects usually used as targets. Therefore, I win.

You aren't supposed to shoot your subordinates!

[Gun Manufacturers]

I have a higher rank than Bambi, Thumper, Bullwinkle, Rocky, and inanimate objects usually used as targets. Therefore, I win.

You aren't supposed to shoot your subordinates!

Don't worry, right now I'm only shooting the lazy ones that don't do anything.

[Big Jim P]

What do you do once you get to the top though? Apparently it's turtle all the way up too.

The superior officers aren't the ones who are armed, they just direct armed people. Being detached from combat, they are able to make more logical choices rather than being moved by the heat of the moment.

I have no superiors, and damn few equals. What do you do in my case?

Superior in rank, not in ability.

Unarmed yet directing armed people? Being detached from combat means that they are indeed capable of making those decisions without heat of passion. They are also capable of sending people to their deaths without really understanding what it means to face that one life or death, kill or die situation. I will reserve my respect for those on the front lines thank you.

[Raeyh]

that one life or death, kill or die situation. I will reserve my respect for those on the front lines thank you.

No matter which one you respect more, one is supposed to mindlessly obey orders while the other gives orders. That's the way it should be.

[Big Jim P]

that one life or death, kill or die situation. I will reserve my respect for those on the front lines thank you.

No matter which one you respect more, one is supposed to mindlessly obey orders while the other gives orders. That's the way it should be.

I am going to have to call bullshit here. No one, NO ONE orders me to my death without my full cooperation and understanding.

NO ONE.

[Raeyh]

No matter which one you respect more, one is supposed to mindlessly obey orders while the other gives orders. That's the way it should be.

I am going to have to call bullshit here. No one, NO ONE orders me to my death without my full cooperation and understanding.

NO ONE.

When you enter the military, that is what you are supposed to do. Soldiers can't question orders and hesitation can be deadly.

There is a reason "Semper fidelis" and "Fido" both share the same root.

[Greed and Death]

Yes I did read the dissent as well, both used history, I found the majority more persuasive. Of course a reversal could then be used later to reverse several other rights championed by the left side of the court as well. Privacy rights and the like. Lovely is the game of supreme court politics isn't it ? One side likes one set of rights the other side likes another set of rights, both sides use the logic of the other against each other.

To me, the 'majority' seemed to be rationalising. Shaping interpretation to agenda. i.e. they'd decided the opinion, and then they tried to make the opinion constitutional, rather than (what I think they were paid to do) determining whether what they were considering was constitutional or not, and then shaping their opinion based on that.

To me, the minority opinions seem less politically and ideologically motivated, more grounded in history and precedent.

I'm not sure why it should be a partisan issue, though. You say "a reversal could then be used later to reverse several other rights championed by the left side of the court", but it shouldn't be a 'left' or 'right' issue - and it shouldn't be about a conflict between 'one set of rights' and another.

I think the best argument is that the Constitution explicitly defines a right to keep and bear arms, but that there is a specific justification. Moreover, I think that justification is good. The problem is that the text is being perverted to fit an agenda, rather than do either of the things we really OUGHT to do if the Constitution matters. Either: 1) amend the Constitution to make the Second Amendment explicitly non-conditional and universal, or: 2) apply the logic that drove the Second Amendment, and tie the right to keep and bear arms to a well-regulated militia with a specific focus.

I find the the Steven's dissent to be a strained and unpersuasive reading. I particularly found him to be reaching when he had to use lower court decisions to say Miller is read as creating a collective rights theory. The idea of the Supreme court bound by Stare Descisis from trial courts would void the entire concept of judicial review.

Breyer was a little more sneaky, as he attempted to say even if there individual right they would be subject to an interest balancing test.
Such interest balancing test allow judges to justify any conclusion the judge might favor.

[Big Jim P]

I am going to have to call bullshit here. No one, NO ONE orders me to my death without my full cooperation and understanding.

NO ONE.

When you enter the military, that is what you are supposed to do. Soldiers can't question orders and hesitation can be deadly.

There is a reason "Semper fidelis" and "Fido" both share the same root.

Soldiers can, do, and are expected to question orders. Some orders are illegal. Troll harder.

[Raeyh]

When you enter the military, that is what you are supposed to do. Soldiers can't question orders and hesitation can be deadly.

There is a reason "Semper fidelis" and "Fido" both share the same root.

Soldiers can, do, and are expected to question orders. Some orders are illegal. Troll harder.

If it turns out that the order was legal, it's insubordination, though.

[Stedicules]

who doesn't want bear arms? think of the stuff we could get done with bear arms. i support the 2nd ammendment.

[Big Jim P]

Soldiers can, do, and are expected to question orders. Some orders are illegal. Troll harder.

If it turns out that the order was legal, it's insubordination, though.

And that is the price you pay for being a sovereign being. A soldier who cannot think for themselves is worthless.

BTW, I was a soldier, and am very aware of the UCMJ.

Still, how does this threadjack apply to the fact that my personal (armed) security trumps your belief that another will provide you with that security?