Lawyers, Guns and Money (Supreme Court May Have To Define Second Amendment)

Harvard Law Bulletin ^ | Summer 2007 | By Elaine McArdle

[robertpaulsen]

"Again I ask; where? This must make over a half dozen times on this thread that you've been asked to document that claim. It's telling how assiduously you avoid doing so."

I cited the constitution. I'll cite it again for you.

Article I, Section 2 of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

I will ask you simply, who are "the people" they're talking about? All individuals? Or will you finally admit that Article I, Section 2 is referring to a particular group of individuals -- only those allowed to vote?

Come on already. This isn't rocket science.

[robertpaulsen]

"It was certainly not limited to only the people engaged in militia activities, nor was it limited to only people who would be required to engage in such activities."

Maybe not today. We'll see what the U.S. Supreme Court says. But in 1792 that's what it referred to -- the "original meaning", if you will.

Are you a supporter of "original meaning" or "the constitution as a living document"?

"I see no reason to believe that it was not the same people who were guaranteed their freedom of assembly, freedom of speech, and freedom of religion in the First Amendment."

The same people who were guaranteed their freedom of assembly, yes. The Founding Fathers did not limit the freedom of speech and freedom of religion to "the people".

[Tench_Coxe]

"The definition of "the people" differs, depending on the subject -- the Founders used the phrase to mean "the particular group"."

So,to which particular group do amendments 1,4, and 9 refer? You use a mighty twisted logic, friend.

The term 'people' refers to the body of citizens of the United States,i.e., the body politic. Now, the ACLU might try and extend such a thing to enemy combatants at Gitmo, or drug dealers in Mexico (see US vs. Verdugo-Urquirdez), but that doesn't wash.

Now, I know that such a thing you will ignore, and move on to the next Second Amendment thread to spout the same stuff, but such an egregious (and intentional) effort to twist wording to suit your argument cannot go unanswered (well, actually it could, since responding might be considered by some as validation of your statement, but I'm particularly grumpy this morning).

In another post, you cite the Militia Act of 1792 claiming that somehow this circumscribes the right to bear arms. It doesn't. The purpose of the act was to describe and enable the structure (read:establish uniformity) of a militia for times of repelling invasion. The bit about requiring an individual to "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power" refers to the expectation that those in the militia would show up for duty already armed (which makes sense--in an emergency such as an invasion, the government may not have the means to distribute arms, and the militia was not expected to throw rocks at the invaders).

Now, at this point, I expect you'll fall back on the Militia Act of 1903 (also known as the Dick Act). The Dick Act was put into place to correct deficiencies brought to light by the Militia Act of 1792. This act divided the militia into two parts-organized and reserve. The reserve portion of the Act still refers to 'able bodied men', i.e., those not members of what is now known as the National Guard. No where in the Dick Act is there a circumscription of the right to bear arms. One *might* argue that the Dick Act actually established something the Founders despised from recent history (recent referring to their time)--select militias.

Now, that all said, the only argument I've seen your closet gun-grabbing self that has any remote merit is the argument on incorporation. Unfortunate artifact from the 14th amendment. You want to argue banning guns from the general public, I suggest you take that tack.

[robertpaulsen]

"When the Second Amendment says, "the right of the people to keep and bear arms shall not be infringed", how can you suggest that the protection does not extend to the inherent right that you agree exists?"

Are you saying it must? Why must that federal protection extend beyond those who would serve in the Militia? Isn't that protection up to each state?

The decision to protect all other rights in the Bill of Rights was made by each state. But you're saying the federal government must protect this one particular right for all persons?

I don't understand.

"How does the fact that a well-regulated militia is necessary to the security of a free state, reduce the scope of the inherent right protected in the Second Amendment?"

Because "the people" in the second amendment refers to those qualified for a Militia.

"It would be so easy to word an alternative Second Amendment to apply the protection ONLY to service in a militia"

It does that already. Actually, it would be so easy to word an alternative Second Amendment to apply the protection to a wider group. The Founders could have said "all individuals", "all persons", or "all citizens" in lieu of "the people".

[Freedom4US]

So, the right of self-defense cannot be taken away without individual due process, except that citizens decide which weapons weapons may be used and under what conditions? I’m paraphrasing there, but that should be pretty close.

This is absurd on its face because these issues are certainly not put to any sort of ballot. And make no mistake, self-defense is the real issue, not firearms. They are a proxy of sorts because they are singular and de facto the weapons of choice currently, there really isn’t any competition. Is it due process to prohibit citizens right of self-defense?

[robertpaulsen]

"Bob, let's say a state (California, for example) went door-to-door confiscating weapons (arms) from 'the people', including 18-45 year old, white males."

Going door-to-door without a warrant seizing private property from some individuals without due process or just compensation? Forget the second amendment -- so many other rights are being violated by that activity that the second amendment is moot.

Let me start by saying that there is no protection of the RKBA in the California State Constitution. Theoretically, California could seize all guns.

But, as you pointed out, doing so would infringe on the ability of Congress to call up a well regulated (armed and trained) state Militia, and would violate the U.S. Constitution.

"Who would the governor call?"

The California National Guard, which has replaced the citizen Militia in most states.

[Travis McGee]

At least he bumps the thread.

[Tribune7]

I wonder how many lefty lawyers and judges and movie types carry a concealed weapon or keep one in their homes for personal protection?

I wouldn't be surprised if it was the majority.

Of course they are special.

[robertpaulsen]

"All we would hear about from the anti-gunners would be "the Constitution is not a suicide pact" and that our Founders never meant for the people to have arms to challenge the authority of government."

All of our other rights are reasonably regulated. I see no reason why the second amendment would be an exception.

If the anti-gunners object to the individual right to keep and bear rocket launchers, perhaps legislation could be written to accomodate that. For example, "all personal rocket launchers are to be kept in the Militia armory".

"The latter requires that the right of the people to keep and bear arms not be infringed, including that of 85-year-old women."

The Founding Fathers did not expect 85-year-old women to need that right protected since 85-year-old women were not expected to defend the country. If the state wishes to protect her right, they certainly may.

[Tribune7]

I wonder how Oprah would react if the state of Illinois passed a law prohibiting private security personnel from carrying firearms.

[robertpaulsen]

"And how does this justifies the banning of some otherwise-legal rifles because they have bayonet lugs?"

Huh?

The poster claimed that only anti-gunners were at odds with the wording of the second amendment. I simply corrected this misimpresssion.

"There were no arms which were not protected by the Second Amendment at the time of our nation's founding, and there are no arms which are not protected today. None."

Well, if a state does not consider a particular weapon to be a Militia-type arm, then the right to keep and bear it may be infringed. I'm sure you agree.

"If the people wish to reduce the scope of the word "arms" in the Second Amendment, they are free to do so using the amendment process. What they may not do is permit the Congress to violate the Bill of Rights or look to the courts to re-interpret the scope of the protection."

It's not even that complex. Each state has the responsibility of maintaining a well regulated Militia. Congress may not infringe on the ability of a state to perform that function. If Congress bans a certain weapon used by that state's Militia, the state may appeal that action to the U.S. Supreme Court.

[MileHi]

Because "the people" in the second amendment refers to those qualified for a Militia.

Why do you keep repeating that when it some absurdity you made out of whole cloth? The Founders could have said "all individuals", "all persons", or "all citizens" in lieu of "the people".

"The people" are "all citizens". In every instance where it is found. Your ridiculous assertions don't change that.

[robertpaulsen]

"You should really stop citing that opinionated pack of lies."

Boy, that site really bothers you, doesn't it? You know, I would understand that if only you would refute it.

But you haven't been able to.

"Use this website instead."

Why don't you use it to support your claim that the Bill of Rights were supposed to apply to the federal government AND the states.

[robertpaulsen]

I looked it up and there were more than I thought.

List of current State and Territory Defense Forces

Alabama State Defense Force
Alaska State Defense Force
California State Military Reserve
Connecticut State Militia Units
Georgia State Defense Force
Indiana Guard Reserve
Maryland Defense Force
Massachusetts State Guard
Michigan Volunteer Defense Force
Mississippi State Guard
New Jersey Naval Militia
New Mexico State Defense Force
New York Guard
Ohio Military Reserve
Oregon State Defense Force
Puerto Rico State Guard
South Carolina State Guard
Tennessee State Guard
Texas State Guard
Vermont State Guard
Virginia State Defense Force
Washington State Guard

[robertpaulsen]

"The term 'people' refers to the body of citizens of the United States,i.e., the body politic."

It did? Article I, Section 2 of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

You're saying that all citizens voted in 1792? Men, women, and children?

I don't think so, amigo. And since that absolutely destroys the rest of your argument, I need not go any further until you regroup -- if you can.

[Dead Corpse]

Boy, that site really bothers you, doesn't it?

Yes. Because it gives opinion instead of stating facts backed up by those who wrote the Constitution and the Bill of Rights. It twists the plain meaning of their words.

You know, I would understand that if only you would refute it.

Not that you would acknowledge such. You are a troll. Also note: You haven't refuted a damn thing in this post.

Art 6 Para 2, the text of the 2nd Amendment, and the writings of those who WROTE, DEBATED, and PASSED such legislation hasn't corrected your idiotic gun grabber arguments. Not even the Gods could.

This doesn't make your "opinion" correct. Just treasonous and stupid.

[robertpaulsen]

"So, the right of self-defense cannot be taken away without individual due process, except that citizens decide which weapons weapons may be used and under what conditions? I’m paraphrasing there, but that should be pretty close"

It is.

"This is absurd on its face because these issues are certainly not put to any sort of ballot."

You mean, "mob rule"? No, they're not. In a representative republic, we elect representatives who pass these laws.

"Is it due process to prohibit citizens right of self-defense?"

You have the right to defend yourself. But what makes you think that you have the right to plant mines in your front yard or booby trap your front door or use a flamethrower to do so?

Look. If you want to live in a cabin above the tree line like some Jeremiah Johnson, I could give a FF what you do. Buy you come down off the mountain to live among society, you play by the rules of that society.

You have no inalienable right to defend yourself with a machine gun. Your state may protect your right to defend yourself with a weapon. If they do, they will define when and where and how that weapon may be used.

You shoot a bad guy in the back as he's running away from you, you may be arrested and thrown in jail. Dem's da rules.

[robertpaulsen]

"The people" are "all citizens". In every instance where it is found. Your ridiculous assertions don't change that."

Not true. I'll cite it one more time.

Article I, Section 2 of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

You're saying that all citizens voted in 1792? Men, women, and children?

I seem to recall that only white, male, citizen landowners voted in 1792. I'm wrong?

[robertpaulsen]

Yeah, yeah, yeah. Art 6 Para 2 applied the BOR to the states.

And for the next 150 years the states got away with violating the Bill of Rights left and right because ... what was it you said ... "this was perverted by the Judiciary"?

Oh sure. That makes much more sense that the fact that the BOR never did apply to the states to begin with. Countless, ever-shifting Supreme Courts over the years, all magically agreeing to pervert the U.S. Constitution.

It's a conspiracy!

[tpaine]

It is irrationally claimed that when the second amendment was written, it only protected the right for white male citizens, 18-45 years of age.
Non-whites (slaves) were not protected. Non-citizens, women, and children were not protected under the second amendment.
"The people" in the second amendment did not mean "all persons". When the Founding Fathers wanted to protect the right of an individual, they referred to "person", or "citizen" or "he/him".

You countered that:

"-- The same 'people' are referred to in the 10th Amendment. [as in the 2nd]

Note that in a typically 'gutless' [as quoted above] manner, - there was no rational reply.

"We the People of the United States" refers to all of us, not just white male citizens, 18-45 years of age.
Non-whites (slaves or not) could bear arms, as many did in wartime or to protect their masters.
By common law, criminals/slaves/convicts could be prevented from bearing arms, - no others.
Non-citizens, women, and children could bear arms under the second amendment. Indisputably, many have.
"The people" in the second amendment meant "all persons".
The Founding Fathers wanted to protect the right of all individuals, referred to as "person", or "citizen" or "he/him", - or as "the people".