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 ...
I don't recall seeing your definition of natural rights, so it is true that I'm arguing from assumption. Let's correct that.
I separated unalienable rights from civil rights. I take unalienable rights to mean the rights that a person is born with, that exist by virtue of the person's existence, and that can only be taken away by ending the person's existence. Civil rights are those granted to the person by society when entering into a compact with others in the society.
I'm curious to know how you distinguish between unalienable rights and natural rights.
-PJ
At the time of your quote, the BoR had not been written yet. A bit hard for Madison to think that the BoR applied to anyone, when it had not yet been penned.
...and by those days standards, those "rights" dispensed by the King were in many respects, well above the other nations and societies of the time.
...until it came to the Americas where the people, living far away and removed from the King, and many of them coming here in the first place to worship and live as they pleased, were enlightened (IMHO, by God) to recognize that rights derive from God Himself and are not subject to or dispensed by the King, Parliment, the President, Congress, legislatures, governors, the judiciary or any other, The people themselves are soveriegn in their person so long as they do not infringe on the rights of others.
That is the distinguishing, kernal, fundamental truth and difference between true liberty in a republican form of government, and any other form which fails to recognize and be bound by that fundamental truth.
It did take many, many decades for that enlightenment to become fully established in law...and it was not, and is not perfect, because we are not perfect. Sadly though, in these times we are leaning further and further away from that principle...to the ultimate shame and injury to our way of life and our freedom...and to our very lives if the truth be told.
> > "Then it's not much of a right, is it?"
> Ah, you finally get it.
What, that the Founding Fathers went thru the trouble of enumerating a right that really doesn't do anything? Courts regularly observe that whatever is law was not meant to be interpreted in a trivializing manner.
> > "Congress declared me a militia member - so presumably they mean federal militia"
> What makes you presume that?
Um...the fact that Congress declared me a militia member, with no reference to state militas? Surely you don't think the feds were telling Georgia that they have to accept me as part of the Georgia State Guard.
> > "The Constitution says I can keep and bear arms."
> Ah, no, it doesn't.
"the right of the people to keep and bear arms shall not be infringed." Thought you knew about that one. Even if we allow a state can infringe on that, the feds explicitly can't. Even if we grant your view that it is limited to militia members serving as the gov't sees fit, that means that I - a Congressionally declared militia member, with neither directive to get something in particular nor restricted in what i can get - can at minimum keep and bear militia-suitable arms (like an M4). You keep saying the 2A only restricts the feds; if that means what you say, then (state restrictions aside, as Georgia has none) the BoR tells the feds that they can't limit my right to keep and bear arms (that's what it says, rob). I _AM_ a declared member of whatever militia Congress was referring to (obviously not referring to state, so what militia is it, rob?).
> The U.S. Constitution says your right to keep and bear arms may not be infringed by the federal government.
Bingo. 922(o) infringes my right to keep and bear arms (particularly, an M4) which are plainly standard issue to modern US soldiers. Georgia doesn't restrict my right to have one, so why can't I just drive over to Clyde Armory and pick up one cash paid?
> > "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?
I'm talking about getting my own personal M4, plainly militia-type.
> > "So why can't I get one?"
> That is up to your state. As I said before.
My state has no problem with me owning an M4. It's only the feds in the way.
> Your individual right to keep and bear arms for any purpose is protected by your state.
Yes, it is in fact. So why can't I buy an M4? Credit card in hand, I'll head right over now to get one. Oh, that's right, the BATFE will say I can't have one, because the feds forbid it via 922(o).
Natural rights may be reasonably regulated. Inalienable rights may not -- not without individual due process.
Actually it sounds pretty arbitrary to me. The founders enumerated certain "inalienable" rights in the Declaration of Independence. They never intended it to be an exhaustive list and they never offered any indication that there were "inferior" rights. You are attempting to draw some distinction between an inalienable right and a natural right and then claiming the ability to regulate the latter. However, you offer no objective criteria for the distinction. This leaves the whole matter up for subjective definition by whoever happens to hold the reigns of power. The founders called that tyranny. This is precisely why they enumerated rights and why they did not distinguish between greater and lesser rights.
I would offer that the founding principle of this constitutional republic is that the "commune" may not regulate individuals' rights and that there is no such fine distinction as you offer, arbitrary as it is.
I can say all those under 10 cannot own a handgun, but I cannot say all those under 10 may be incarcerated.
So are you offering that the distinction between your adjectives of natural and unalienable is adulthood? Again, this is completely arbitrary. If you assume the right to say that a 10 year old cannot own a handgun, why would you not similarly assume the right to incarcerate him? What objective principle distinguishes your claims?
Does that sound like lawyer speak?
Absolutely. Arbitrary and baseless redefinitions of language and context are the lawyer's primary tools of the trade.
The 14 amendment didn't exist in 1833.
The states were not bound by the protections regarding freedom of speech until the after the SCOTUS decided Gitlow v. New York in 1925. Before that time, the states could deny freedom of speech all they wanted.
The court, like in all of incorporation, decisions used the due process clause of the 14th amendment to determine that the freedom of speech was such an essential liberty that no government entity could infringe upon it.
The problem is that the SCOTUS has only selectively incorporated the protections of the Bill of Rights.
Also, "trial by jury in civil cases", "unanimous jury verdict" and "freedom from quartering soldiers" have also NOT been incorporated.
Before the 14th amendment, no.
Swearing in public? Speech over the airwaves? Fighting words?
Oh, and since when are our laws limited to regulating behavior that harms others? Is this some new, made-up standard of yours that we're supposed to comply with? Where did you get this standard and why are you using it?
"How does carrying or owning an "assault weapon" or "Saturday night special" meet this test?"
Test? It's considered a reasonable regulation.
"How are they not all protected from regulation by prior restraint?"
Because the legal concept of "prior restraint" doesn't apply to guns? Just a guess.
We hold these truths to be self-evident, that all men are created equal, 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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.Sounds like the states are bound, if only for their continued existence, to respect those rights.
1. Please state, in your own words, what the Second Amendment to the Constitution of the United States means to you. Do you understand the right to keep and bear arms to be an individual or a collective right?
“The right to keep and bear arms is an absolute right of Americans to protect their families and their communities and their nation with firearms. In this age of post-911, Americans, I believe are comforted by the fact that our ability to resist terrorism is not limited to law enforcement or defense agencies but is also within the ability of all gun-owning Americans.”
2. There has been a lot of discussion in the media and in the legislature about “Closing the Gun Show Loophole.” What is your definition of a “Gun Show Loophole”, and how would you address this issue?
“I reject the term ‘loophole’. It is a clever verbal device of the left to restrict the rights of Americans. Constitutional rights are not loopholes in governmental regulations. As President, I would veto legislation that would require a background check on private firearms transactions at gun shows or any other bill that restricts the Second Amendment Rights of American.”
3. Representative Carolyn McCarthy has introduced H.B. 1022, the Assault Weapons Ban and law Enforcement Protection Act of 2007. Do you believe that Americans have the right to own, use and carry weapons of military pattern? Do you support restricting a citizen’s access to firearms based upon cosmetics or ease of function?
“As President, I would veto any bill that reauthorizes the semi-auto ban that was sunset in 2004. These types of bills represent “feel good” measures that impede the rights of law-abiding citizens by banning guns based not on facts but based largely upon how scary they look.”
4. In Congress, you represent the great state of California, a state applauded by some and demonized by others for having extremely restrictive gun control laws. Do you understand California’s gun control laws to be a necessary and effective deterrent to violent crime?
“Gun control laws directed at law-abiding citizens are not a crime deterrent. In fact, studies show that private ownership of firearms by Americans reduces crime. You and I both know that the one thing criminals prefer more than any other is unarmed victims.”
5. If you are elected President of the United States, how would your presidency affect firearm owners?
“As President, I will not sign any treaty that impedes, in any way, the Second Amendment rights of Americans.
Only judges who have a demonstrated commitment to interpret the Constitution as our founders intended will be nominated to the federal bench.
I would ask Congress to send me for my signature, legislation to repeal the D.C. gun ban, legislation to allow reciprocity among states with concealed carry rights and other pieces of legislation to restore rights that prior administrations have eroded.
In fact, I authored the Hunter amendment, Rol call 241 in 1999, to allow DC residents to keep and bear arms.”
Representative Hunter; thank you again for taking time out of your busy day to answer these questions and address issues that many Americans see as important. Your voting history on Second Amendment issues is appreciated.
That's a pretty close analogy.
Very insightful, as nobody had brought up the UN small arms ban plan.
This is the problem when you have when you permit a society where the lawyers run everything.
CA....
Exactly...that question did not mention it, but Hunter intentionally put it in there to make the point.
Because I would be infringing on his inalienable right to liberty without individual due process. If he murdered someone, and was convicted in a court of law with due process, I may take away HIS liberty -- but not ALL 10-year-olds.
"However, you offer no objective criteria for the distinction".
Life, liberty, and property are inalienable rights and CANNOT be removed without individual due process. Right there in the 14th amendment. All the rest are natural rights. There you go. Easy enough for even you to understand.
Now you don't like that, fine. Give me another inalienable right besides life, liberty and property. You did say inalienable rights were not limited to those. I assume, therefore, you have more? Let's hear 'em.
Exactly. We agree.
Allowing that clarification, does that mean your analagous "right to read" prior indicated means you would, under such phrasing and understanding as indicated by your 2nd Amendment interpretation: support prohibition of individuals owning books, outlawing of personal libraries, licensing or prohibiting carry of single books concealed in backpacks or briefcases or pockets, and outright bans on novels?
As the library teaches people to read, could the gov't prohibit private ownership of foreign-language books involving literacy not taught by the library?
As the library loans out books, could the gov't forbid private ownership of equivalent books? or "better" books? or any books not library-owned?
As the library keeps the larger reference collections, could the gov't forbid private ownership of encyclopedias?
What "right" does an individual have to books in such a scenario, given that the gov't would in your view have the power to totally dictate the extent to which a library card could be used, and the extent to which private ownership of books could then be regulated?
Given your own book-oriented analogy to the 2nd Amendment, and given the hundreds/thousands of posts you've made on the interpretation thereof, it seems you would have no problem with such restrictions. The only "right" to books someone would truly have would be to get a library card - use of which could be restricted to the kiddie section, with no borrowing privileges.
So I see. Poorly, as I point out in #232. Had you used "Library patrons" or "Legal scholars" instead of "Libraries", you may have been closer to the mark.
I gets deeper than that. Who would write the books and how would that be regulated?
It gets deeper than that. Who would write the books and how would that be regulated?
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