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Yes, the Second Amendment Guarantees an Individual Right to Bear Arms
realclearpolitics.com ^ | March 20, 2007 | Pierre Atlas

Posted on 03/20/2007 4:04:15 PM PDT by neverdem

On March 9, the Circuit Court of Appeals for the District of Columbia issued a groundbreaking ruling. It declared in a 2-1 decision that the Washington, D.C. ban on handgun possession in private homes, in effect since 1976, is unconstitutional. The court reached this conclusion after stating unequivocally that the Second Amendment's right to keep and bear arms applies to individuals and not just "the militia."

It is quite likely that this ruling will be appealed to Supreme Court, which hasn't offered an interpretation of the Second Amendment since 1939.

Appalled by the District Court ruling, the Washington Post editorialized that it will "give a new and dangerous meaning to the Second Amendment" that, if applied nationally, could imperil "every gun control law on the books."

The Post accused the National Rifle Association and the Bush administration's Justice Department of trying "to broadly reinterpret the Constitution so as to give individuals Second Amendment rights."

But actually, to argue that the Second Amendment does not apply to individuals is a reinterpretation of the Constitution and the original intent of the founders.

One of the major concerns of the anti-Federalists during the debate over the Constitution in 1787 was the fact that the new document lacked a Bill of Rights. In order to get the Constitution ratified, the framers promised to pass a Bill of Rights during the First Congress as amendments to the Constitution. The Second Amendment with its right to keep and bear arms became part of that package.

What was the original intent of the Second Amendment? Was the right to bear arms a collective right for militias, or an individual right for all citizens? The "Dissent of the Pennsylvania Minority," from the debates of 1787, is telling. This document speaks...

(Excerpt) Read more at realclearpolitics.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: 2a; banglist
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To: El Gato
False test. Arms are arms. You don't like it, or want "reasonable restrictions"? Fine amend the Constitution, don't ignore it's plain language.

How's this for a reasonable test: You can keep and bear any targetable, discriminatory arms you want, including howitzers, but the first time you use one and injure an innocent party or damage an innocent party's property, or are proved to have actual intent to, then you are tried, imprisoned and/or executed for your crime. You cannot own, nor operate any WMDs or any other indiscriminating weapons, such as high explosive bombs, because you cannot control their effect on innocents, nor reasonably employ them for any personal self-defensive purposes. You cannot therefore use them without violating the rights of others by the mere act of doing so.

221 posted on 03/21/2007 10:32:18 AM PDT by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: Jeff Head
"Well, personally I do not think they can define my rights."

Oh, they can and they have. Do you need recent examples of that?

What if some future liberal court defines "arms" as those weapons carried by the average soldier -- since the average soldier does not carry a handgun, handguns are not protected? That "to bear arnms" does not include concealed carry? That "to keep" means to keep in a state armory?

222 posted on 03/21/2007 10:36:08 AM PDT by robertpaulsen
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To: robertpaulsen
No...they are not defining my rights. They best they can do is make a statement regarding what they think of how I can exercise my rights, and then send other men with guns to back that up.

But that has, as I said, nothing to do with the definition of my right.

I do not believe you got that message or understanding from my earlier post. Re-read what I wrote in my post 219...I stand by that.

If you did understand...then fine, we simply fundamentally disagree.

223 posted on 03/21/2007 10:43:36 AM PDT by Jeff Head (Freedom is not free...never has been, never will be (www.dragonsfuryseries.com))
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To: TigersEye
True. But, as in the example of crying "fire" in a crowded theater, no restriction is acceptable before some harm has actually been committed.

No, intent to commit harm is also restrictable before the act. Carrying a gun is a right. Strapping on a gun with the announced intent of murdering someone is probable cause for arrest.

224 posted on 03/21/2007 10:43:58 AM PDT by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: Wildbill22

Any infringement of the right represents a slippery slope. The framers were aware of this. That is why they didn't put any exceptional language about what constituted arms the people could bear.


225 posted on 03/21/2007 10:44:49 AM PDT by NCSteve
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To: robertpaulsen
I intentionally said "natural" rights to distinguish them from "inalienable" rights. Yet you just squish them together. There is a difference.

So let's see some examples of what you deem to be "natural" rights.

The entire basis of the constitutional republic that the founders created was that the rights of the state never supersede the rights of the individual, hence the Ninth and Tenth Amendments. The attempt to semantically separate rights into categories sounds like lawyer-speak for an attempt to subvert that principle.

226 posted on 03/21/2007 10:59:59 AM PDT by NCSteve (What good is it if you're wearing your superman underwear and can't show it to anyone?)
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To: robertpaulsen
It's not your call.

Then it's not much of a right, is it?

What does your state want you to have as an armed Militia member?

State? I wasn't talking state. Congress declared me a militia member - so presumably they mean federal militia (surely the feds don't have a power to declare who is a member of a state militia). The Constitution says I can keep and bear arms. There is nothing limiting what arms I can keep and bear in my service as a federal militia member - and nothing saying I can only have what I'm told to have (closest is Miller, so maybe I'm limited to current standard military arms - like an M4). The standard army grunt gets an M4. When called up, I'm most likely to be made an army grunt - so it behooves me to be familiar with an M4, and given the circumstances of callup I'd best have one to bring. So why can't I get one? doing so would benefit the security of a free State, and would be as regulated as the feds currently see fit.

Your line of reasoning doesn't leave any individual right to exercise - so what's that blurb doing in the second part of the Bill of Rights?

227 posted on 03/21/2007 11:00:22 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: robertpaulsen

What about the federal militia, members of which may keep and bear their own arms? Surely the states can't infringe on the federal need?


228 posted on 03/21/2007 11:01:56 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: robertpaulsen; Betty Jane
And I told you it was not the same structure and I told you why. Therefore, I will not answer it.

Re-phrase it to comply with the same structure and you won't need to ask my opinion -- it will be obvious. Which, I'm sure, is why you refuse to do so.

This is popularly known as "begging the question", or framing the question in a manner in which the desired answer is assumed. Her structure was the same as the 2nd A.: introductory clause, followed by operative clause. You wish it to be restructured to comply with the "collective right" interpretation: restrictive clause, followed by operative clause. So why don't you propose YOUR analogous wording?

229 posted on 03/21/2007 11:07:27 AM PDT by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: robertpaulsen
Speech is guaranteed, correct? Are you saying that speech cannot be regulated?

Only when it damages, or bears the immediate possibility of damaging another individual. Thus libel, defamation, perjury, fraudulent statements and the infamous false cry of "fire" meet that test.

How does carrying or owning an "assault weapon" or "Saturday night special" meet this test? How are they not all protected from regulation by prior restraint?

230 posted on 03/21/2007 11:15:01 AM PDT by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: LexBaird
So why don't you propose YOUR analogous wording?

He did. See post 81. The difference is that he substituted the live citizenry (which has rights) with the inanimate library (which has no rights).

-PJ

231 posted on 03/21/2007 11:17:17 AM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: robertpaulsen
A well-stocked library, being necessary to the advancement of a modern state, the right of the people to keep and read books shall not be infringed.

Bzzt. Inaccurate analogy. A library is A) not necessarily a public institution, there being many in private and corporate hands, and B) not a collection of individuals, but a thing or place. Where you would substitute the word "library", the 2nd A. uses the word "militia", not "armory".

232 posted on 03/21/2007 11:24:31 AM PDT by LexBaird (98% satisfaction guaranteed. There's just no pleasing some people.)
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To: NCSteve
"So let's see some examples of what you deem to be "natural" rights."

The right to keep and bear arms, free speech, to post on FR, to walk around nude, to play a musical instrument, to ride a horse, to spit on the sidewalk -- thousands of rights, most of them in the 9th amendment.

They may not all be protected by society, but I have them nonetheless.

"The attempt to semantically separate rights into categories sounds like lawyer-speak for an attempt to subvert that principle."

Not at all. Natural rights may be reasonably regulated. Inalienable rights may not -- not without individual due process.

I can say all those under 10 cannot own a handgun, but I cannot say all those under 10 may be incarcerated.

Does that sound like lawyer speak?

233 posted on 03/21/2007 11:26:27 AM PDT by robertpaulsen
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To: Jeff Head
He's saying that states are free to trample rights, and appealing to the feds' enumeration of pre-existing rights is moot.

This may be the crux of our disagreement with RP: the rights exist, formally recognized or not ... RP contends that the BoR only applies to the feds ... what we then see is a gap where the BoR cannot help trampling of those rights if they are trampled by a non-federal entity, and as the states may not explicitly protect those rights, the states are free to trample thereon, and citizens cannot appeal to the feds for aid.

Which, of course, can only be resolved one way - a method purused some 230 years ago.

234 posted on 03/21/2007 11:26:31 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: JeffAtlanta
the states were not bound by the Bill of Rights

Are the states nonetheless bound to respect those pre-existing rights enumerated therein?

235 posted on 03/21/2007 11:27:39 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: LexBaird
How are they not all protected from regulation by prior restraint?

Because the restrictions on speech are not prior restraint - they are pre-declared consequences to the outcome of the speech. Libel, defemation, perjury, fraudulent statements, etc. are what they are only because they harm, or threaten to harm, someone. Lie harmfully about someone, suffer the consequences. Lie about Bill The Cat, and nobody will care.

Mere carry of certain arms does not harm anyone. Pointing them at someone, however, is certainly cause for retribution.

236 posted on 03/21/2007 11:36:32 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: LexBaird

Even if we allow equating "library" with "militia", one would certainly not conclude that you can only read books checked out of a library, and could be arrested for carrying a personally-owned novel in a briefcase.


237 posted on 03/21/2007 11:38:51 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: ctdonath2
"Then it's not much of a right, is it?"

Ah, you finally get it.

"Congress declared me a militia member - so presumably they mean federal militia"

What makes you presume that?

"The Constitution says I can keep and bear arms."

Ah, no, it doesn't. The U.S. Constitution says your right to keep and bear arms may not be infringed by the federal government.

"closest is Miller, so maybe I'm limited to current standard military arms"

Yeah, maybe.

So, what is it? Anything you want or militia-type arms? You just making this up as you go along?

"So why can't I get one?"

That is up to your state. As I said before.

"Your line of reasoning doesn't leave any individual right to exercise"

Your individual right to keep and bear arms for any purpose is protected by your state.

238 posted on 03/21/2007 11:40:48 AM PDT by robertpaulsen
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To: robertpaulsen
not without individual due process. I can say all those under 10 cannot own

Individual due process would require applying that restriction via individual court cases explicitly addressing each under-10-year-old. This was the upshot of Emerson: Mr. Emerson did indeed have an individual RKBA, which was suspended per individual due process (he had his chance in court to rebut the suspention).

239 posted on 03/21/2007 11:41:26 AM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: LexBaird
"So why don't you propose YOUR analogous wording?"

I did.

240 posted on 03/21/2007 11:47:03 AM PDT by robertpaulsen
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