Posted on 07/03/2006 6:45:30 PM PDT by kerryusama04
Sanford Levinson, a distinguished constitutional law professor, wrote in the Yale Law Journal that the Second Amendment suffers from a lack of serious scholarship.
Few law students envision the Second Amendment as an area of lucrative practice upon graduation. His article, "The Embarrassing Second Amendment," sent a shock wave through academia by suggesting that the amendment might actually mean what it says.
Issues involving guns have taken center stage in the cultural divide that separates red and blue America.
Gun control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms.
However, history - buttressed by the founders' clear understanding - dictates that the amendment guarantees this right to individuals.
The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939.
Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment.
The Supreme Court has conjured rights from the Constitution that do not exist in the text - while disparaging those rights contained in the document itself - leaving both sides of the gun debate cause for concern in any future rulings.
Oblique references in subsequent cases lend credibility to an individual rights interpretation.
The late Chief Justice William Rehnquist noted in a 1990 case, United States vs. Verdugo-Urquidez, that the use of "the people" in the Bill of Rights was used not to avoid an "awkward rhetorical redundancy," but rather was chosen as a "term of art employed in select parts of the Constitution."
He noted that the use of "the people" in the First, Second, Fourth, Ninth and 10th Amendments was within the context of protecting that class of persons who are part of the nation.
When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes.
The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them.
The bearing of arms was both a right and responsibility of citizenship, with arms being legally denied to those who were not citizens.
The very idea that citizens might be barred from militia membership was itself an indication of tyranny.
The original purpose of the entire Bill of Rights was to prevent federal intrusion into the fundamental liberties of the people. The collective-rights interpretation contends that the militia clause limits the scope of the right to keep and bear arms, guaranteeing only that states can maintain a National Guard.
The flaw of this interpretation is clear in the language of the Second Amendment, which secures the rights of the "people," and not the "states," to keep and bear arms.
The right to be armed for personal protection is well recognized by common law and preserved under the Ninth Amendment.
The U.S. Supreme Court reiterated, in the 2005 case of Castle Rock vs. Gonzales, that government cannot be held liable for failure to protect the lives of its citizens. Personal self-defense remains an individual responsibility.
The Second Amendment serves two higher callings. On a practical level, armed citizens provided the ultimate security against enemies and tyrants.
On a philosophical level, the founders knew that our ultimate success depended on the character of the people.
George Mason wrote in the Virginia Declaration of Rights that "no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue."
Much is assured us by the Bill of Rights - but much is also expected of us.
Indeed, the American paragon is the Minuteman, typically represented as a yeoman farmer, who goes back to the plow when his martial duty is done.
The Second Amendment guarantees our sacred rights, but also reminds us of our solemn responsibilities.
Benjamin Franklin observed that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."
The founders meant what they wrote - even if, as professor Levinson indicated, some today may find it "embarrassing."
Tom Moncure is a former assistant counsel to the National Rifle Association.
the amendment guarantees this right to individuals.
bttt
” the Second Amendment not only guarantees the right of the People to keep and bear arms, uninfringed, but also the right to organize as militia to defend themselves against the government.
That’s why the federal and state governments work so hard to neuter it.”
The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.
You will think me transported with Enthusiasm but I am not.I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States.Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not.
Bump
ran out of tall trees/short ropes ???
see 24 as well...
Sorry, but just because you believe 'Arms' are not 'Ordnance' does not make it so. You've let your feelings get in the way. This is the way liberalism works, - liberalism says that whatever I "feel" is right or just ought to be done.
Conservatism says that we must analyze and decide what is actually in the law or the Constitution and then enforce that.
Sorry Bruce, but liberals contradict themselves in consecutives sentences, conservatives usually dont...
This referred to items that were typically provided by the government - cannons, explosives, ships, etc. An individual could own ordnance, but it was not expected to be that way, so it was not considered a right and was not put in the 2nd Amendment.
Anything that 'We the people' pay $$$ for the government to kill us with...WE HAVE THE RIGHT TO PURCHASE OURSELVES...
LFOD...
The 'nuke' card usually smoke out anti-gun zealots IMO...
"area" arms such as cannon or wmd [very large area] require lotsa $$$ to posess safely, and that is subject to reasonable restriction. Their "USE" would also be restricted accordingly...Acions/consequences...imo
LFOD...
Well.. wrong. Well laid out, but it completely ignores the fact that private ship owners frequently armed their ships with cannons to ward off piracy or hostile action in foreign waters. This is why the government came up with the idea of Letters of Marque and Reprisal. They could commission ships that were ALREADY armed.
If you can afford a TOW, Howitzer 105mm, VULCAN, M134-D, aircraft carrier, or a submarine... go for it.
Trying to parse the Right to Arms downward only sets up arbitrary lines that the gun haters will use to say some guns are too small, and others too large, for civilian use.
Denying that "ordnance" has a "militia purpose", or that "arms" didn't mean "ordnance", is silly. If we need those very types of arms to go after an out of control government, then we should have a right to obtain them by peaceful means. That was the main intent of the Founders.
Wow... didn’t even notice that at first. Resurrected an old thread did we? Good timing...
That is your whole argument in a nutshell huh?
I will go elsewhere, where I can get a reasoned argument. Thanks for playing.
Drive-by-TROLL ???
bump for later
Thanks george76.
Number One:
I could care less what some idiot liberal/socialist/commie “scholar” considers embarrassing. I am a FREE MAN. I WILL own firearms, always, as is my HUMAN, CIVIL, and Constitutional RIGHT to do. And I will own the best, most expedient means possible to secure my RIGHT to life, liberty, and pursuit of happiness. PERIOD.
Number Two:
One has but to read the Federalist Papers, and numerous other writings of Madison, Adams, Jay, Hamilton, and Jefferson, to understand this. It is black and white. Libs like to try to grey things down, but this is something that cannot be done upon closer inspection of the original papers. Hence, re-write history; hence, dumb down the children in the schools; hence, control the media and spin the argument.
Number Three:
One should ALWAYS ask Libs why they want LAW-ABIDING CITIZENS disarmed. And what do they have in store for us once we’re disarmed? (We already know the answer - history shows it over and over, in all their little utopian “Worker’s Paradise” worlds).
The immediate next response to a gun-grabbing lib should be this:
I’m willing to DIE to keep this right; are you willing to die trying to take it away? You personally - not some poor cop or soldier following orders and kicking in doors. You, Mr. Lib, personally? Because you will in fact start a civil war. And it won’t be pretty. This right was paid for in American blood; it will not be given up cheaply.
That is the ONLY response they should get from us. Call them what they are - fascist thugs, control freaks, and socialist useful idiots.
The 2nd Amendment - By Any Means Necessary. Live free or die, indeed, Gilbo_3; very well said. Sums it all up for me.
I would however change just one point...
Number Three:
One should ALWAYS ask Libs why they want to criminalize people who are otherwise LAW-ABIDING CITIZENS in their efforts for said citizens to be disarmed.
prolly not worded very well, but expands the thought...
I will not go quietly...
LFOD...
Well said
You wrote, “Sorry, but just because you believe something, does not make it so. You started out so well, analyzing the words in the 2nd Amendment - but then you let your feelings get in the way. This is the way liberalism works, not real conservatism - liberalism says that whatever I “feel” is right or just ought to be done. Conservatism says that we must analyze and decide what is actually in the law or the Constitution and then enforce that, even if it leads to outcomes we don’t like (and change the law through the established methods if we don’t like the outcome). “
You have taken time to write a detailed and thought provoding posting—thank you for that. Actually, the poster whom you criticize as letting his “feelings” get in the way, like a liberal does, did nothing of the sort. He indicated he “truly believe(d)” and that is not an expression of emotion, like liberals often do.
Looking now at your posting. You indicate that just believing something does not make it so. You then return us to the 18th century. However, to do so misses the point of not only the 2nd amemdment but the entirety of the Bill of Rights. It was not intended to be designed only for the current technology of the time but was put forth as a more enduring right of the people. If we were to restrict arms to only the most basic personal small arms we would certainly be in conflict with 18th century technology as well as enduring rights. Cannon, wagons, horses, pistols, pikes, and all the appropriate military technology of the time was useful to defend the people and the tiny new nation at the time was ill-equipped to provide but a small amount of the needs. Accordingly, non-US government owned technology was considered necessary to equip the militia to defend the nation and arms from a variety of sources to include those of France, individuals, and groups were drawn upon. Yes, a tank in private hands (and several older types are non-government owned, by the way) is not inconsistent with the intent of the 2nd amendment. It is cost that will keep modern military technology out of most private hands.
If the founders had intended only basic small arms to be in the hands of the people, they would have barred cannons and all else. The people would have not kept up with the threats posed to them, if restrictions on their self-defense were imposed. On the contrary, Americans need to keep up in personal arms with the arms advances adopted by our adversaries. That is essential to effective self-defense.
Of course, this is an extremely uncomfortable thought for those who just can’t accept the right of individuals to own or control anything that isn’t approved by them or others under the umbrella of government. However, that is the way the right is expressed both in the Federal and many state documents. Follow the process, if you want it changed. Arguing that it doesn’t exist threatens the right as it threatens our legal process of changing rights.
I am in no way arguing that the average person should obtain his or her own personal Abrams. I am arguing that it is upon you to argue whether the right to decide is the right of the people or the authority of government. Your argument is not strong. Whose right is it—and why? Explain compellingly and correctly-—or follow the process to remove the right from the people.
I don’t mean to criticize too harshly, only point out that the 2nd amendment does not have a formal limit of sophistication, power, size, or complexity built in. The Miller opinion was flawed in that the person did not appear—the court offered an opinion that military arms (whatever you want to call them, ordnance, arms, whatever) were the subject of the amendment. Now, if you want to argue that the amendment does not protect your hunting rifle, then you have the Miller opinion to stand on—I can’t so easily argue that point although the difference between hunting and military rifles has been relatively small most of history. If you want to state that the Acme surface-to-air anti-roadrunner missile launcher is not protected, well, you may be on to something.
thanks, bfl
You'd think that an editorial headlined, "the founders meant what they wrote about arms," would perhaps actually quote something from the founders wrote about arms. But he doesn't.
Argh! I hate bad punditry.
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