NO gun confiscation

[etgryphon]

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Why couldn't they establish the right and offer a rationale

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They could have, but that wasn't the way they approached the document. I can't think of any other place off the top of my head where they outline a right along with the rationale. It would seem odd that they decided to do that in just this one place.

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You can argue that the 4th amendment provides a rationale:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The right: Against unreasonable search and seizure

Rational: In order to be secure in their persons, houses, papers, and effects.

-Gryph

[etgryphon]

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This is actually quite a vindication. There was a heated discussion some months ago about whether or not the armed citizens in the United States could pose any serious threat to a government tyranny. I was claiming that guns are mainly for self-protection; the "protection of the free state" part has become an impossiblity, in the modern, powerful state. I said, either form militias or fortget about it.


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I agree with this. Ever since the National Firearms Act was passed limiteding the ownership of automatic weapons. The ability of the free law abiding citizens to protect the free state was limited and in some instances extinguished. Which is the reason by the law should be repealed.

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And I recall, not without amusement, the long and passionate denials by the various strains of pro-gun posters here. No, no, no, they were saying, if or when the time comes, the people will form militias and resist any kind of gun confication, any form of tyranny.


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A few people have done this:

Lawyer Refusing to Leave or give up weapons

It isn't organized and most people believe that the intentions of the police are to help the victims of the hurricanes.

-Gryph

[andyfox]

I did understand what you were saying. I'm disagreeing with it.

Compare this amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Here are three things being prohibited. The three are all addressed. The "nors" mean the amendment is to be read: Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel and unusual punishments be infliced. The language is clear that the framers intended to deal with all three issues.

In the second amendment, the first clause if clearly a modifier to the second. The amendment does not mean there is a right to a militia. It says that since a militia is a good thing, the people should have the right to keep and bear arms.

[benfranklin]

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I agree it seems perhaps odd, but that does not disprove it. Also, as another poster has pointed out, every other Amendment in the Bill of Rights deals with individual rights. So wouldn't it also be odd if the 2nd Amendment did not? So "oddness" in and of itself is merely somewhat suggestive, not conclusive.

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Again, from Lawrence Tribe, author of the definite text on Constitutional Law, gun control advocate, and Harvard liberal extraordinaire:

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[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action.
(Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000] [emphasis added].

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I think that this quote also gives some theoretical basis for the temporary suspension of the 2nd Amendment in the case of emergency, like it or not. I don't think that this basis has been tested in the courts.

For what it is worth, the vast majority of the states have a right to bear arms in their state constitutions without reference to militia.

From the Constitution of the state of Louisiana:

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"The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." La. (p.86)Const. art. I, § 11.

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[andyfox]

We've been down this road before, as you know. There is no other place in the constitution where they offer a rationale, much less one rationale among several other possible ones. They could have, for example, constructed amendment IV to read:

"A right to privacy being basic to people's freedom's in a free state, the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures . . . "

Let's grant the argument that a militia is still necessary to the security of a free state. I say the amendment then says the state cannot infringe upon the right to keep and bear arms for the purpose of keeping that well regulated militia.

[andyfox]

Each individual has the right to keep and bear arms for the purpose of maintaining a well regulated militia. Is the right to a "free press" addressed to individual rights, or to both individual and institutional rights?

[andyfox]

Aren't the two clauses from the La. statute contradictory?

[etgryphon]

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Each individual has the right to keep and bear arms for the purpose of maintaining a well regulated militia. Is the right to a "free press" addressed to individual rights, or to both individual and institutional rights?

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Softball...

The press is always individuals. The press is the written language to include letters, memo and the like.

-Gryph

[etgryphon]

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Aren't the two clauses from the La. statute contradictory?

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How?

It's the state constitution which is enumerating the privledges of the state government and reaffirming the right already possessed by the people.

-Gryph

[benfranklin]

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Aren't the two clauses from the La. statute contradictory?

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You have seen the light, and realize that prohibitions against concealed carry are unconstitutional [img]/images/graemlins/grin.gif[/img]

Praise the Lord and pass the ammunition. [img]/images/graemlins/cool.gif[/img]