supreme court wrong: no individual right to a gun versus the state

[dairygirl4u2c]

i wonder what that artile winchester cited means for him. he's seemed detached to the idea of incorporation as does that artile... so does winchester support the right to bear arms versus the state, and why?

[Winchester]

It's difficult to figure out what you're saying because you are a horrible writer. 

[dairygirl4u2c]

it seems like you are against incorporation via the 14th amendment. the second amendment is against the federal government. the only way to protect individual gun rights against the state is via incorporation. i conclude that winchester must not support giving individual rights to guns against states?

that article seems to be against incorporation too, so i would be forced to conclude that about the article too. even though the article applauds the second amendment generally.

Edited October 29, 2015 by dairygirl4u2c

[Peace]

Apart from that, what complete excrement that article is. The feds have enumerated powers. Lacking an enumerated power, they have no right to infringe on the right of the people to keep and bear arms. The conversation really should end there. The second amendment cannot by any stretch of the imagination be seen as granting a right. It discusses a right as though it already existed, and mentions that the feds may not infringe upon the right.

Exactly why is it that you keep raising this point? Most laws that attempt to restrict gun ownership are state laws. The primary question that most people are concerned about is the extent to which the Constitution protects you against state laws that restrict your gun ownership. Not many people have really been talking about federal laws that restrict gun ownership because very few of those laws exist (as far as I am aware).

And when you say that the 2nd Amendment does not grant a right - I assume you mean this in the sense that you believe that a right to own a gun is a natural right or a God-given right, and that the Constitution cannot grant you a right that you already have. Is that correct?  If so, that is a nice concept, but when a state enacts a law to restrict your right to own a gun, who is it that you are going to turn to in order to assert that right? You are going to sue in federal court, and you are going to assert that the Constitution prevents the state from restricting your ownership rights. So in the practical sense the Constitution does grant you a right (unless you have some other way of enforcing your God-given right to own a gun).

[Peace]

It's difficult to figure out what you're saying because you are a horrible writer. 

My my. Now isn't that a case of the pot calling the kettle black.

[Winchester]

My my. Now isn't that a case of the pot calling the kettle black.

You're missing a comma.

I'm difficult to understand because I skip information. Totally different issue.

[Socrates]

I like you Socrates. You usually have something intelligent to say, even when you are wrong.

Backatcha.

I believe that the second amendment protects an individual's right to own guns. I have not changed my position, but I think the way you talked about the issue in your previous post was unwarranted. You seemed to suggest that the isssue is so obviously clear that only an ignorant or a fool could conclude otherwise. I do not think that is the case, which is why I objected to your comments.

Not necessarily ignorant or a fool . . . also the dishonest and the power-hungry.

 

Well here is what the text says:

1) The clause starts off with the phrase "A well regulated militia, being necessary to the security of a free state". The purpose seems rather clear - "the people" are to have weapons so as to support a military. It does not say anything about individuals owning weapons for personal defense or hunting.

2) "The people" is not a phase that must include "each and every person". I think you would concede this as well - each and every person would include rapists and bank robbers, would it not? When I hear the phrase "the people" the immediate thing that comes to mind is a group of people, or the public at large. If they had intended to say "every person" or "individual citizens", how hard would it have been for them to write that?

3) If you were talking about buying a gun to keep in your home, to protect your family, or to go hunting with, would you use the phrase "bear arms"? Would you say "Yo homie. I am going down to the gun store so I can bear some arms and go hunt some deer this weekend"? No. Of course you would not. When you use the term "bear arms" the thing that immediately comes to mind is military action. The phrase in itself does not connote anything concerning owning a gun for personal defense or hunting.

1) "The people" who have the right to keep and bear arms are free private citizens owning their own weapons, who make up the state militias (think the "Minute Men" in the Revolutionary War).  They didn't simply keep weapons to support some standing federal or state army - they were the militia, and owned and used their own weapons.

Hunting was not even controversial at the time of the Convention (except perhaps regarding individual poaching cases).  Many frontier families relied on their guns for hunting for food, as well as self-defense.  But laws regarding hunting (which, of course, exist today) are a separate issue from the right to keep and bear arms.  Not sure of your point.

Most systems of law recognize a right to legitimate self-defense.  Frankly, it would be nonsensical to declare that persons have a right to keep and bear arms, but not to use them in self-defense if necessary.  The burden of proof should be on those who would make such an absurd interpretation.

2)  If only certain persons have the right to keep and bear arms, then why not spell out who exactly those special persons are?  I'm not aware of any "rights of the people" in the Bill of Rights which are only vague "collective rights" (whatever that even means). The phrase "individual citizens" would likely be regarded as redundant.  If there is in fact no individual right to keep and bear arms, why not simply state that the states have a right to maintain militias and leave it at that?  It says "the right of the people" not "the right of the states."

3) A lot of phrases were used in the 1780s not commonly used today.  Again, your points about hunting and self-defense are specious.

The necessity of a militia to a free state is a reason given to support the right of the people to keep and bear arms.  It's  not a conditional statement. There's no "if" clause.  The right of the people shall not be infringed, period.

 

That is not what I said. I said that if the primary basis of your argument is extraneous statements by the "founding fathers", then you need to do a whole lot more than post some web-site quotes from 5 or 10 people out of 70 for anyone to start to take that line of argument seriously. You need to engage in serious analysis, and present some serious evidence before you should expect a need for anyone to take it seriously or respond to it. You have not done so, in my view.

Take a look at the majority decision in District of Columbia v. Heller. The opinion uses darn near every piece of evidence under the sun except the type of "what did the founding fathers say in XYZ speech" evidence you offer. Why do you think that is? Could it be, perhaps, because that type of evidence is not worth anything?

Feel free to provide additional information.

If you want historical evidence on the other side of the coin you need only read the dissenting opinions in District of Columbia v. Heller.

I didn't claim to give a legal analysis, but for those actually interested in the framer's intent, it can useful to know how American founders (including framers) thought regarding guns, and people's right to use them.  It at least helps quickly deflate the complete nonsense of those who flat-out assert that the Second Amendment was never intended to protect individual rights regarding gun ownership and use (as in the OP).

A militia made up of every free private citizen capable of bearing arms was seen by the founders as a bulwark of freedom against government tyranny.  Granting the federal government the power to forcibly disarm citizens would do exactly the opposite.

Edited November 2, 2015 by Socrates

[Winchester]

Human rights are not contingent upon citizenship. The right to keep and bear arms is a human right, not one bestowed by citizenship.

[Peace]

1) "The people" who have the right to keep and bear arms are free private citizens owning their own weapons, who make up the state militias (think the "Minute Men" in the Revolutionary War).  They didn't simply keep weapons to support some standing federal or state army - they were the militia, and owned and used their own weapons.

Well if that is the argument - I don't think that all of "the people" made up the state militias. Did women fight? Maybe one or two. What if a state government around that time had said - "we desire to limit the militia of our state to men over the age of 25 years of age"? If a state government chooses to do that (and I would think that a "States Rights" person would agree that a state has a right to define its militia) - why would folks who are not called to fight have a right to own guns?

Did slaves make up the state militia? If at the time the 2nd Amendment were enacted there were state laws that prohibited slaves from keeping guns do you think that any of the founding fathers would have thought such a law to be unconstitutional?

Hunting was not even controversial at the time of the Convention (except perhaps regarding individual poaching cases).  Many frontier families relied on their guns for hunting for food, as well as self-defense.  But laws regarding hunting (which, of course, exist today) are a separate issue from the right to keep and bear arms.  Not sure of your point.

The point was that the language of the constitution seems to grant a right to bear arms for the purpose of forming a state militia, but not for the purpose of using a gun for hunting for food or personal self-defense. So a state may arguably place limits on gun ownership for purposes that do not relate to forming a militia. If a Muslim person makes a religious vow never to fight as a member of a militia for State X, but only to carry out Jihad when called upon to do so, can State X pass a law that says he is not entitled to own a gun?

Most systems of law recognize a right to legitimate self-defense.  

Sure. But I don't think that necessarily implies a right to own a gun (or to set booby traps in your house, create bombs, keep a stick of dynamite, etc.)

Frankly, it would be nonsensical to declare that persons have a right to keep and bear arms, but not to use them in self-defense if necessary.  The burden of proof should be on those who would make such an absurd interpretation.

Unless the declaration suggests that "the people" have a right to bear arms for the purpose of forming a militia, of course.

2)  If only certain persons have the right to keep and bear arms, then why not spell out who exactly those special persons are?  I'm not aware of any "rights of the people" in the Bill of Rights which are only vague "collective rights" (whatever that even means). The phrase "individual citizens" would likely be regarded as redundant.  If there is in fact no individual right to keep and bear arms, why not simply state that the states have a right to maintain militias and leave it at that?  It says "the right of the people" not "the right of the states."

Well again - to be more specific (and if you read the dissent to the relevant case you will see that they make this clear) - they do not deny that that the right to bear arms is an individual right in the sense that the right is theoretically available to all people. The debate is whether or not the right to own guns is limited to certain purposes. Here - the constitution only really need to spell out that purpose. It is then up to the states to define their own militias however they choose, and if they want to restrict them to men over the age of 25 (or define them in some other way), then they can enact laws that say that persons not falling into that category can be restricted from owning guns.

But to flip that own line of argument against you - if the drafters had intended indicate that men may own guns for any purpose, why not just write "the right of the people to keep and bear arms shall not be infringed"? Why would you preface that statement with language that could reasonably be interpreted as limiting the right to bear arms to a particular purpose (in this case, the formation of a well regulated militia)?

3) A lot of phrases were used in the 1780s not commonly used today.  Again, your points about hunting and self-defense are specious.

This is a fair point. We have not established whether persons at that time would have understood the phrase "bear arms" to indicate gun ownership for hunting or private-self defense, or for military reasons. I think we can both agree on how people would typically imagine that phrase today. Are you aware of some specific time or circumstances that caused that language usage to change?

The necessity of a militia to a free state is a reason given to support the right of the people to keep and bear arms.  It's  not a conditional statement. There's no "if" clause.  The right of the people shall not be infringed, period.

Well then we are right back to square one again I think. I don't see anything inherent in the phrase "the people" that would indicate "each and every person".

I didn't claim to give a legal analysis, but for those actually interested in the framer's intent, it can useful to know how American founders (including framers) thought regarding guns, and people's right to use them.  It at least helps quickly deflate the complete nonsense of those who flat-out assert that the Second Amendment was never intended to protect individual rights regarding gun ownership and use (as in the OP).

I think that there is a reasonable argument that the primary concern around the time the 2nd Amendment was ratified was to ensure that States could maintain their own militias without interference from the Federal Government. But as to the question of whether individual states can regulate gun ownership among its own citizens - I think the question is a lot tougher and that the answer is not clear.

Personally, I think that individual people should be able to own guns for their own personal safety and the safety of their families. But I don't think that is really what the 2nd Amendment was about. Since the constitution is ambiguous on that point (in my view), I don't have any problem with interpreting it in a way that is consistent with the natural right that a person has to provide for the safety of himself and his family. I don't think that other people who come to a different conclusions are necessarily buffoons or ill-willed.

A militia made up of every free private citizen capable of bearing arms was seen by the founders as a bulwark of freedom against government tyranny.  Granting the federal government the power to forcibly disarm citizens would do exactly the opposite.

Sure. But again - that is not really what anyone today is concerned with. The question now is not whether the Federal Government has a right to forcibly disarm citizens, but rather the extent to which individual states may impose laws on their citizens that restrict gun ownership.

Not necessarily ignorant or a fool . . . also the dishonest and the power-hungry.

LOL. Well that is not much better now is it? I don't think you need to be ignorant, a fool, dishonest, or power-hungry to reach a conclusion that is the opposite of the conclusion that you reached. I think that there are reasonable arguments on both sides and that reasonable people can come to different conclusions on the matter.

[Winchester]

 

The point was that the language of the constitution seems to grant a right to bear arms for the purpose of forming a state militia, but not for the purpose of using a gun for hunting for food or personal self-defense.

Nothing in the second amendment resembles a grant of a right. It acknowledges a right of the people. It doesn't in any way appear to be giving any rights.

 

 

[Peace]

Nothing in the second amendment resembles a grant of a right. It acknowledges a right of the people. It doesn't in any way appear to be giving any rights.

Did you not get enough attention from your mother today? Please refer back to my previous post on that subject:

And when you say that the 2nd Amendment does not grant a right - I assume you mean this in the sense that you believe that a right to own a gun is a natural right or a God-given right, and that the Constitution cannot grant you a right that you already have. Is that correct?  If so, that is a nice concept, but when a state enacts a law to restrict your right to own a gun, who is it that you are going to turn to in order to assert that right? You are going to sue in federal court, and you are going to assert that the Constitution prevents the state from restricting your ownership rights. So in the practical sense the Constitution does grant you a right (unless you have some other way of enforcing your God-given right to own a gun).

Edited November 3, 2015 by Peace

[Winchester]

 

Did you not get enough attention from your mother today? Please refer back to my previous post on that subject:

In a "practical sense" (as you use the term) a mugger grants you the right to keep your wallet.

Why refer back to that statement? The second doesn't "seem" to do as you claim. That's a matter of basic grammar. The statement to which I responded didn't refer to "practical sense", but to the language itself, so that bit you cited isn't relevant. I agree that the government, being entirely omnipotent and without any check on its power apart from the threat of violent resistance (which isn't really a check at all, at this point) operates as a granter or denier of human rights. But the "language of the constitution" (your words) doesn't purport to be granting a right.

You were sloppy. It happens. Get over it.

[Peace]

In a "practical sense" (as you use the term) a mugger grants you the right to keep your wallet.

Why refer back to that statement? The second doesn't "seem" to do as you claim. That's a matter of basic grammar. The statement to which I responded didn't refer to "practical sense", but to the language itself, so that bit you cited isn't relevant. I agree that the government, being entirely omnipotent and without any check on its power apart from the threat of violent resistance (which isn't really a check at all, at this point) operates as a granter or denier of human rights. But the "language of the constitution" (your words) doesn't purport to be granting a right.

You were sloppy. It happens. Get over it.

Please. It purports to grant a right in exactly the sense that I described previously. Previously I described that it prohibits laws from being enacted that restrict your right to gun ownership.

If you want to nit-pick over my word choice when you know darn well what I mean have at it. If you want to keep harping on the same irrelevant issue over and over again when people have already conceded that you are correct have at it. But do not be surprised if people think you are acting like an attention-seeking child.

[little2add]

the real danger to America is drug abuse.   In 2013, the most recent year for which data is available, 46,471 people in the United States died from drug overdoses, and more than half of those deaths were caused by prescription painkillers and heroin.

That compares with the 35,369 who died in motor vehicle crashes and 33,636 who died from firearms, as tallied by the federal Centers for Disease Control and Prevention.
what we need is laws against drug abuse, o wait...
 

[Winchester]

Please. It purports to grant a right in exactly the sense that I described previously. Previously I described that it prohibits laws from being enacted that restrict your right to gun ownership.

If you want to nit-pick over my word choice when you know darn well what I mean have at it. If you want to keep harping on the same irrelevant issue over and over again when people have already conceded that you are correct have at it. But do not be surprised if people think you are acting like an attention-seeking child.

I responded to exactly what I thought you said, and I believed you said what you meant.