RKBA or not, in 2A

[Shanty Oilish]

It's unclear who begins from a premise of a right to keep and bear arms in the 2nd Amendment, and who believes there was no such individual right. Where do you stand? (This isn't about assault weapons!) Was it a right that we should now void, in the interests of public safety?

[MrBenchley]

1. Gee, is it REALLY that unclear?

The courts and the Founding Fathers always cast the second amendment as a collective right.

[Procopius]

2. To only the National Guard.

Only the Fed Govt should be armed-and lightly at that-according to proposals to the UN under Kennedy. The UN should have the bulk of the heavy arms under it's control.

[MrBenchley]

3. Say what?

"Only the Fed Govt should be armed-and lightly at that-according to proposals to the UN under Kennedy. The UN should have the bulk of the heavy arms..."
Don't suppose there's any reason to ask for proof of any of that.

[hansberrym]

7. Sadly, this appears to be true.

See Department of State Publication 7277, Disarmament Series 5, Released September 1961. This is also known as Freedom From War.

Under this abomination, we would sacrifice both our individual right to self-defense and any/all collective or national power to resist foreign control.


Only the Neo-con "One World Order" types and The very-far-left-wing could embrace this as a model for Freedom and Security.



So much for "A well regulated Militia being necessary" - hell any substantial armed force would be forbidden under FREEDOM FROM WAR.
See Stage III.

So much for our "free State" if the UN power grab continues unabated.
The very notion of FREE STATES would be destroyed, there would only be one truly sovereign power- the UN.

So much for the "right of the people to Keep and Bear arms". Since private ownership of arms would threaten the UN dominance by acting as a check on its power, individual ownership would be strictly controlled or outlawed altogether. Even those who insist on a collective right only, should object, since the whole people of the US would be left defenseless to a foreign power.

Whether one believes that the second amendment acknowedges an individual right, a collective right, or some of both, I do not think there is any disagreement on whether the second amendment was meant at least in part to prevent tyranny by widely dispersing the means of resistance to arbitrary power. THe proposals in Freedom From War completely abridge the amendment under any interpretation.

[MrBenchley]

12. Gee I wonder why

when I google this, all I find is that the farthest right wing loons have this on their website...

folks like this....

http://www.committee.org/NJcos/njcos04.htm

[Procopius]

42. So do you agree?

I sure do!

[hansberrym]

57. Is that your only objection

to this State Department plan (that has never been renounced) to surrender our independence?

What does it matter which sites you find this information on?

It seems to me that what really matters is whether or not you agree with FREEDON FROM WAR.

Your skeptical reply to the first mention of this information lead me to think that, just possibly, you had some allegiance to this country.
Was I wrong?

[Man_in_the_Moon]

4. Back that Up!!!

if you can.

[hansberrym]

5. DO you have any citations for the founders to back that up?

Seems that at the time of the "casting" of the second amendment,
the founders were speaking of "bearing arms" in terms of an individual person's actions, and not the action of a group or of the State.

Madison: “…no person scrupulous of bearing arms, shall be compelled to render military service IN PERSON ”. (my emphasis)

George Wyethe of the Virginia convention: “…that ANY PERSON scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ ANOTHER to bear arms in HIS stead".

Rhode Island convention: (identical to Wyethe)
“…that any person scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

[rfranklin]

6. They also considered negroes and women to be chattel...

Anyway, unless you have some RPGs you won't be able to fend off Ashcroft's jackbooted Homeland Defense Storm Troopers when they come with their black helicopters.

[hansberrym]

9. what's an rpg? And

what does you comment have to do with this thread?

[Ergotron]

10. RPG=Rocket Propelled Grenade

[Java]

11. Collective Right?

I'm sorry..how is it considered to be a collective right?

[slackmaster]

13. I'll give you an example of an actual collective right

Civilian police departments are contractually obligated to do their best with available resources to protect society at large from crime. But in order to limit their exposure to liability they are not held responsible for failing to respond quickly (or at all) to individual complaints of criminal activity. Their job is to protect all of us as a group yet none of us as individuals. Being generally well-intentioned people they try to do the right thing, but you cannot sue the cops for taking too long to show up or even not showing up at all when you call them.

We therefore have a collective, but not an individual, right to police protection.

[Java]

14. Police department analogy

has nothing do to do with the Bill of Rights. The bill of Rights makes no mention of Police.

The example that you have given me is simply the result of a series of Judicial Precedents by SCOTUS.

However..if we can examine the consequences of this analogy when coupled with strict gun control laws such as what we have in Washington D.C.

It is true that the police are NOT obligated to answer an emergency call and protect people...so if we combine this with strict gun control laws where private gun ownership is banned then we have a situation where people who obey such gun ban are rendered almost defenseless to criminals (who obviously have no such intentions of obeying such laws)

[MrBenchley]

15. Actually what we have

is a situation where the DC residents themselves want the gun ban strengthened...and a bunch of meddling loonies from the hinterlands, such as Linda Chavez and Orrin Hatch, are trying to knock it down.

[Java]

88. How can you strengthen a ban in DC when the current law

Bans Private Ownership and Possession of ANY Firearm inside City Limits?

[slackmaster]

17. Note the word "contractual" in my post

The right to police protection contractual, not a civil right.

[happyslug]

40. Statutory Not Contratual

The right to police protection is "Statutory" i.e. given to you by some statute (Either from the state or your local Government).

As a Statutory right, police protection can be abolished as any time by the governmental unit that provided it. There is NO Constitutional right to Police Protection.

On the other hand it is a Constitutional right to be treated equally before the law, thus if a statutory right exists, it must be provided to everyone just not some people. For example if the state would ay Police protection will be provided to people of one race by not another, that would be unconstitutional. While the Right to Police protection would be Statutory based, once a right is given the Constitutional right of equal protection kicks in. Thus a state can not restrict to what race, police may protect.

I just wanted to point out the difference between statutory and Constitutional rights and how both are often intertwined in Civil Rights disputes.

[iverglas]

75. heh

I shoulda read the responses first.

;)

[iverglas]

74. nonsense

Did you read nothing of what I tried to teach you in the thread on the subject?

You're talking about a *contractual* right, in which case you might term the "right" in question a *class* right. Not a collective right.

Terms have meanings. The fact that the terms are not much used in the USofA doesn't mean that you can invent meanings for them.

The classic collective right is the right of a people to self-determination, as set out in various international instruments and as I tried very patiently to explain in that other thread.

A collective right can *only* be *exercised* by a group, never by an individual.

Another example that is very familiar many places outside the US is the collective right of members of minorities within a state to manage their own affairs in matters having to do with culture: for instance, the right of minority official language communities in Canada to have and manage their own school systems.

Similarly, the First Nations of Canada have certain aboriginal rights under the Canadian constitution that can only be exercised collectively, e.g. land claims. (Other aboriginal rights, e.g. the right to hunt and fish for food, can be exercised by individuals.)


"We therefore have a collective, but not an individual, right to police protection."

No, you don't. The "right to police protection" is not remotely a collective right. Ask yourself: how would that be exercised??

The right that individuals have would likely be the right to the equal protection of the law -- not to be discriminated against in the provision of police protective services.

"Being generally well-intentioned people they try to do the right thing, but you cannot sue the cops for taking too long to show up or even not showing up at all when you call them."

You certainly could if you could establish that their non-response or delayed response was the result of discrimination based on, say, your colour or religion or ethnicity. They are agents of a public authority, which presumably is bound by your Bill of Rights guarantees of equal protection, no?

.

[Liberal Classic]

20. Framers of constitution saw a collective right?

This would not seem to jive with what I have read about Washington, Jefferson, Adams, and others. The framers of the constitution spoke English, and not differently than we do today. To suggest that the framers did not see an individual right in the second admendment is to deny that the sentence says what it says.

If you diagram the sentence, it is the people whose right shall not be infringed. The crux of the debate seems to be the first part: "A well-regulated Militia, being necessary to the security of a free State." Is this a simply a dependent clause modifying or is it a restrictive clause restricting "the right of the people to keep and bear Arms, shall not be infringed?"

Restrictive clauses restrict the possible meaning of the subject, they limit the meaning of the noun phrase it modifies. Non restrictive clauses simply describe the noun as an adjective or adverb would. Neither restrictive clauses nor dependent clauses may stand on their own as a sentence. Which part of the second amendment is the clause and which is the noun phase?

Is this a complete sentence?

"A well-regulated Militia, being necessary to the security of a free State."

No, this is:

"Tthe right of the people to keep and bear Arms, shall not be infringed."

It's clear that "the right of the people to keep and bear Arms, shall not be infringed" is the noun phrase and "a well-regulated Militia, being necessary to the security of a free State" is a modifying clause. But is it limiting or is it descriptive?

Does "a well-regulated Militia, being necessary to the security of a free State" limit who may keep and bear arms? Or does it give a reason why people should have the right to bear arms? How do you tell the difference? A non-restrictive clause simply modifies without defining. It can be deleted from a sentence without a change in the meaning of the sentence.

If you remove "a well-regulated Militia, being necessary to the security of a free State" from "a well-regulated Militia, being necessary to the security of a free State the right of the people to keep and bear Arms, shall not be infringed" you get simply
"the right of the people to keep and bear Arms, shall not be infringed." This is not just a phase it is a sentence with a subject and verb. The right of the people to bear arms shall not be infringed whether or not a well-regulated militia is necessary to the security of a free state or not.

"The right of the people to keep and bear Arms, shall not be infringed" is the independent clause. It stands alone as its own sentence. It does not mean only the militia has the right to bear arms.

If this sentence were to be written differently it would say:

"Because a well-regulated militia is necessary to the security of a free state the right of the people to keep and bear arms shall not be infringed."

This is all that it means.

Now I can't argue to every court decision, but when it comes to the original intent of the framers of the constitution it is crystal clear that they believed the private ownership of arms was a right.

[MrBenchley]

21. Sure they did...

"If you diagram the sentence, it is the people whose right shall not be infringed."
And the people is a collective term.....as the preamble clearly shows.

[Liberal Classic]

23. By that interpretation there are no individual rights

This would seem to mean that there are no individual rights at all, and that all rights are collective and therefore mutable by what ever faction is in power in the government. Frankly, it is this attitude that has given us the Patriot Act, because the whole of us will be safer thought a one of us may not.

People means you and me. You have the same rights as I. It does not mean that we only have rights collectively as a mass grouping of persons. People is simply the plural of person. If means several people.

Newspeak double-plus ungood!

[MrBenchley]

24. Rubbish!

"People means you and me."
Acting in concert.

"Frankly, it is this attitude that has given us the Patriot Act"
Horseshit....in fact, it is AshKKKroft HIMSELF who is the loudest proponent of the dishonest "2nd amendment is an individual right" position.

And of course, the blowhards trying to peddle it, the NRA, are currently in court (represented by Ken Starr, no less) bitching that their COLLECTIVE freedom of speech is being infringed by campaign finance reform.

[Liberal Classic]

25. You may have other good points, but

When arguing original intent with regards to the private ownership of firearms, it's a losing proposition. Your position stands in contravention to that of the constitution itself and writings of the framers themselves.

For the record I strongly opposed McCain/Feingold campaign finance so-called reform. It is a dangerous curtailment of free speech. I am interested, but not eager, to see its effects come next presidential election.


When faced with facts you retreat into profanity. Good day.

[MrBenchley]

27. Sez you

"Your position stands in contravention to that of the constitution itself and writings of the framers themselves."
Not even close to true.

"When faced with facts you retreat into profanity"
How would you know? You're still trying to pretend Ashcroft is opposed to the disgraceful revisionist "individual" view, when in fact he is one of its architects and chief cheerleader for it..

[iverglas]

76. learn something!

Use yr search function and find the very recent long discussion about collective rights and the 2nd amendment.

"This would seem to mean that there are no individual rights at all, and that all rights are collective and therefore mutable by what ever faction is in power in the government."

Utter and complete stuff and nonsense. A collective right is no more subject to government abrogation than is an individual right, where it has been constitutionalized, for example, or where the state in question has signed international instruments recognizing them (if only such instruments were enforceable ...)

The Supreme Court of Canada adjudicated the question of the collective right of the people (note the *singular* collective noun "people") of Quebec to secede from Canada. Just as it adjudicates allegations of violations of individual rights.

"People means you and me. You have the same rights as I. It does not mean that we only have rights collectively as a mass grouping of persons. People is simply the plural of person. If means several people."

Consider consulting a dictionary. "People" has two meanings -- the plural of "person", and the singular collective noun referring to *a* people. Surely you have heard of this concept.

One more time ...

http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

Article 1
1. All peoples have the right of self-determination.
By virtue of that right they freely determine their
political status and freely pursue their economic,
social and cultural development.


How can this sentence even exist if "people" is a plural noun only? How could there be "peoples"? Of course there are peoples. There are the aboriginal/native "peoples" of North America, for instance.

*A* people can have rights. People can also have rights. Different rights, different rights-holders.

Not an easy task to determine which sense the word was used in, in that 2nd amendment of yours.


"Newspeak double-plus ungood!"

I don't know that this is what I'd call what you've said. I'd just call it uninformed, and arrogantly uninformed.

.

[slackmaster]

22. It could just as well start "The Moon, being made of Green Cheese..."

And the whole sentence would still mean the same thing. Even if the militia clause is no longer relevant the meaning of the sentence has not changed. Anyone who doesn't like it is free to start the process of a Constitutional amendment to change it.

[jody]

26. slackmaster, if anyone tried to amend the Constitution to change the

Second Amendment, they would immediately encounter state constitutions that said self-defense was an inalienable right and that individuals had such rights as Pennsylvania's listed in its constitution:

QUOTE
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
UNQUOTE

Anti-RKBA activists must explain how an inalienable right can be alienated.

If the US Constitution can be amended by the majority to alienate an individual's inalienable right to keep and bear arms to defend self and property, then it can also be amended to alienate an individual's inalienable freedoms of speech, press, religion, etc. Even more threatening is that the Constitution could then be amended to alienate the inalienable rights of selective ethnic or racial groups.

Those who are fixated on the Second Amendment ignore the simple fact that the right to defend self and state is an inseparable part of the freedoms so many Americans have fought and died to preserve.

The idea of inalienable or natural or inherited rights is the thing that protects an individual or minority under a democracy from the tyranny of a simple majority.

[MrBenchley]

32. Only in RKBA fantasy land

where words seem meaningless....


But then last week, some RKBA "enthusiasts" were trying to pretend "well regulated" and "unorganized" were synonymous. Of course, last week was also "guns for the blind" week.....

[RoeBear]

34. Liberal Classic...

...you have to realize that if the founding fathers wanted the rights to be for individuals they would have named each person in the document. Instead of using the confusing word people.


:crazy:

[MrBenchley]

36. Gee Roe

They sure had no problem telling us that the fifth amendment referred to individuals. Guess they weren't as dumb as you think...

[Romulus]

37. had to say it

and they also had no problem telling us that the 10th Amendment referred to states. :P

Of course, this is in response to the poster who said that the Fourth Amendment concerned a "collective right" against unreasonable search and seizure. http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=118&topic_id=6892#7204

[MrBenchley]

38. You STILL sniveling about Professor Nutso's lie, rom?

The RKBA crowd looked like idiots in that thread, too....

[Liberal Classic]

43. So the 5th is an individual right while the 4th is collective?

4th: 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.

5th: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is somewhat more constructive than to argue how many angels can dance on the head of a pin. To me the meaning is clear. They both refer to people, you and me. Him and her. People is the plural of person. Persons is a synonym for people. People is more often used in compound words, such as salespeople. Salespersons is a bit awkwards, but it means the same thing.

"No personal shall be..." describes an individual right whereas "The right of the people..." describes a collective right? Persons means individuals plural but people means a class of individuals? Are you sure? How then would you interpret this:

"The right of the people to be secure in their persons..."

So by your usage, this is the collective right of the group to be secure in their collective individualities, respectively?

ROFL!

Mr. Benchley, you're not just spinning, your cavitating. :)

[MrBenchley]

44. Gee, classic

the only spinning here I see is yours....

Are you really pretending that the Founding Fathers couldn't tell the difference between the words "person" and "people" or were unaware of what they meant?

Now go peddle your rubbish to an RKBA enthusiast...they all seem to love this half-assed semantic horseshit.

[Liberal Classic]

45. More profanity, yay

The simple answer for the sake of obfuscation that you refuse to answer is that they are talking about our rights in every bill in the bill of rights.

Both your right and my right to free speech, your and my freedom to worship, my right to peacably assemble with others, to petition the government, your right and my right to own arms (you don't have to excercise it if you don't want to), mine and your right to be secure from unreasonable searches and seizures and to trial by jury, your right to not have our property taken away by the government without compensation, and to not be punished with excessive fines, or cruel or unusual punishments.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated." Is this a collective right? Does this mean that the militia has this right? Do certian classes of people have this right? What good is a collective right against unreasonable searches? No. We all have this right. Individually and collectively. Individually because it appies to me personally if the police suspect me of a crime (and even when they don't), and collectively because it is a right we all have.

How difficult is this to understand? Not very. I don't think that anyone on DU maintains that to be free from unreasonable search and siezure is a collective right. People around here seem to feel strongly about the rights of the accused. These are individual rights, and just because we all have them doesn't mean they're any less personal. You're steadfast refusal to agree to the most simple of political concepts proves to me you're just out to flame people -- collectively and individually. It doesn't matter if they agree with you on campaign finance reform and it doesn't matter if they agree with you on the drug war. If they don't agree with you on the second amendment then I am peddling rubbish.

[MrBenchley]

46. A good response to blatant silliness....

"What good is a collective right against unreasonable searches? No. We all have this right."
In other words, it is collective.

[Liberal Classic]

49. See, you do not debate, you spin.

I've tried to speak respectfully to you, but obviously it is wasted effort.

You have never conceded any little point no matter how small, you haven't tried to find agreement with anything I have said even in principle. You have not attemped to reach some kind of common ground from which we could move forward, and you haven't even defined your terms so we can speak the same language. You do not debate, you flame. You dance around definitions, taking cheap shots and occasionally tossing out a scatalogically interesting term to liven up your posts. In short, you're a sorry excuse for a participant and the Justice/Public Safety forum is worse for it.

[MrBenchley]

51. Cry me a river...

"you haven't even defined your terms so we can speak the same language."


"Main Entry: 1col·lec·tive
Pronunciation: k&-'lek-tiv
Function: adjective
Date: 15th century
1 : denoting a number of persons or things considered as one group or whole "

[Liberal Classic]

55. Okay, since you've made an effort

Look's like you're using Merriam Webster.


Main Entry: 1col·lec·tive
Pronunciation: k&-'lek-tiv
Function: adjective
Date: 15th century
1 : denoting a number of persons or things considered as one group or
whole <flock is a collective word>
2 a : formed by collecting : AGGREGATED b of a fruit : MULTIPLE
3 a : of, relating to, or being a group of individuals b : involving all members
of a group as distinct from its individuals
4 : marked by similarity among or with the members of a group
5 : collectivized or characterized by collectivism
6 : shared or assumed by all members of the group <collective
responsibility>




Main Entry: 1peo·ple
Pronunciation: 'pE-p&l
Function: noun
Inflected Form(s): plural people
Etymology: Middle English peple, from Old French peuple, from Latin
populus
Date: 13th century
1 plural : human beings making up a group or assembly or linked by a
common interest
2 plural : HUMAN BEINGS, PERSONS -- often used in compounds instead
of persons <salespeople>
3 plural : the members of a family or kinship
4 plural : the mass of a community as distinguished from a special class
<disputes between the people and the nobles> -- often used by
Communists to distinguish Communists from other people
5 plural peoples : a body of persons that are united by a common culture,
tradition, or sense of kinship, that typically have common language,
institutions, and beliefs, and that often constitute a politically organized
group
6 : lower animals usually of a specified kind or situation
7 : the body of enfranchised citizens of a state


So, denotation #1 for collective and denotation #1 for people are roughly equivalent.

Back to the point, when people refer to the second amendment being a collective right, they are not using denotation #1, rather they are leaning more towards a resposibility of the group but not a right of the individual as with #3b: involving all members of a group as distinct from its individuals. This is not the same as saying all members of the group have the right to keep and bear arms. Those people who maintain this is not an individual right, but a collective right are not referring to the group as a whole, they're referring to the group apart from the individual. This is approaching the term collectivism, a political or economic theory advocating collective control.

However, this is not the meaning of the second amendment, or the fourth amendment for that matter. The bill of rights describe the rights of individuals as they relate to the collective. The fourth amendment does not say that the collective has the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. It says that the people have this right. If I were to use the word collective, I would use the denotaion #6 shared or assumed by all members of the group. All members of the collective have the right to be secure from unreasonable search and seizure, or the right to a trial by jury.

[MrBenchley]

58. Again

However, this is not the meaning of the second amendment, or the fourth amendment for that matter.
Sez you.

"The fourth amendment does not say that the collective has the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
The hell it doesn't.

[jody]

59. You might consider the SCOTUS decision

QUOTE
The Fourth Amendment provides: {494 U.S. 259, 265}

"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."

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words <494 U.S. 259, 266> "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
UNQUOTE

[MrBenchley]

63. Says it all

"The language of these Amendments contrasts with the words <494 U.S. 259, 266> "person"

[happyslug]

68. The return of Substantial Due Process

In my opinion Jody fouled up, he should also have added the paragraph BEFORE the parts he cited:

"Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See Malloy v. Hogan, 378 U.S. 1 (1964). Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. Kastigar v. United States, 406 U.S. 441, 453 (1972). The Fourth Amendment functions differently. It prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable governmental intrusion. United States v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon, 468 U.S. 897, 906 (1984). For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. Whether evidence obtained from respondent's Mexican residences should be excluded at trial in the United States is a remedial question separate from the existence vel non of the constitutional violation. Calandra, supra, at 354; Leon, supra, at 906."

In effect the Court made a difference between a Constitutional violation at trial and one that occurred prior to trial. Constitutional errors at trial are always unconstitutional for they always occur in the jurisdiction of the US. Constitutional violations before trial may occur in the US or outside the US. If the violations occur outside the US, than it is NOT a Constitutional violation, for the Constitution exists as a compact between the people of the US NOT between the people of the US and the rest of the world.

Thus while the Court mention a difference between the words "people" and "Person", the court was more concern if the alleged constitutional violation occurred at trial or before trial. If the alleged Constitutional Violation occurred before trial, than it is a Constitutional violation only if it occurs among the "people" of the US.

On the other hand if the alleged Constitutional Violation occurred at trial, the "Person" being tried can challenge the Violation whether he is among the "People" of the US or not.

The case involved the Fourth amendment, mentioned the Fifth only in showing that the Fifth applies to more than the people of the US, while the Fourth only applies to the People of the US.

As to the Second, all this means is that while the "people" of the US "to keep and bare arms", is like the right of the people to peacefully assemble, to petition the Government, to be secure in their persons, houses, papers and effects, etc, but these rights do NOT extend to anyone who is Not one of the people of the US (at the same time the rights of persons under the fifth, Sixth's amendments also extend to anyone of the People").

It is a chipping away of the Bill of Rights by limiting some of it to the "people" while keeping others open to anyone. This also is a reflection of the Court traditional reluctance to enforce the first four amendments to the US Constitution. The courts like the Fifth through Eighth amendments for these are "due process" amendments, something within the court’s complete control. i.e. HOW a court tries a case. In the First through Fourth Amendments you have things OUTSIDE the courts control that it is being ask to decide. While the Courts have ruled on Freedom of Speech etc, when the violation occur, those violation occur outside most courts and therefore outside the direct control of most courts. While a court can say "I will not permit the Prosecutor to put into evidence provided by Torture", for that is within its courtroom, the Courts are more reluctant to say "Stop torturing" for the acts of torture occurs outside its courtroom.

The Courts would prefer the Congress and State Legislatures to enforce the First through Fourth Amendments. Those may be enforced through the courts, but the courts really want Congress to enforce those rights. Where the Court has stepped in, it has been reluctantly and when the Congress and the State Legislatures have consistently refused to address the violations of the First through Fourth Amendments.

The court only started to enforce the First through Fourth in the late 1890s and than under the Concept of "Substantial Due Process". The Court ruled various acts were denying people "Substantial Due Process" and as such a violation of the Due Process clause of the 15th amendment. The first big case was the Locher case of 1905 where the Court ruled it was a violation of a person Substantial Due Process rights for a state to set minimum wage and maximum hours for him to work. This policy of ruling any regulations regarding labor hours, and business unconstitutional (i.e. they violated the substantial Due Process) would last till the late 1930s (During that period these "rights" where referred to a the "freedom to starve").

The various efforts of FDR to end the Depression was stymied by the US Supreme Court and its retention of Economic Substantial Due Process. It is only with the death of Economic Substantial Due Process in the Commercial environment that we finally left the Great Depression behind (it was NOT the reason, just one of the many reasons).

The only good thing to come out of Substantial Due Process was the First through Fourth Amendment Cases. Careful reading of the First Amendment will show that NOTHING in the First Amendment prohibits the States from restricting Speech, religion, press, Assembly, or even to petition. The Supreme Court went around this restriction by saying the list in the First is just a list, the real right to Free Speech, Religion, press, Assembly, and Petition (and the rights in the rest of the Bill of Rights) are derived from the Right of Due Process in the 15th amendment, i.e the right to "Substantial Due Process" NOT directly from the First.

Because the Bill of Rights were only imposed on the states on the grounds that violation of the First Amendment were also violation of “Substantial Due Process” it has been said all of the modern rights people think are in the Bill of Rights are built on quicksand. The Court can always say that the Bill of Rights does NOT equal Due Process and as such any violation of the Bill of Rights is NOT a constitutional violation. In many ways this was Judge Bork’s position on the Bill of Rights, Congress can define them provided similar (but not necessarily the same) rights are provided under the Concept of Substantial Due Process.

Lets hope that the court will uphold the concept that both person and the people have all of the Bill of Rights. I hope that the Court does not leave what rights we have up to Congress, the President or even the states.

[MrBenchley]

71. There's an ace to draw to!

"Judge Bork’s position on the Bill of Rights"

[Liberal Classic]

80. Good post

n/t

[jody]

81. happyslug, you are correct. I've reprimanded myself and

administered proper punishment. :spank:

ON EDIT ADD

I could never have explained the case and due process as well as you did. Thanks for the information. :hi:

[iverglas]

82. tiny quibble

It's "substantive" due process. ;)

It's not something that's needed under the Canadian constitution, so it's always puzzled me a little. I'm going to come back to your post when I have had more sleep and have less work later this week, and may have a question or two.

A thing that might interest you:

"If the violations occur outside the US, than it is NOT a Constitutional violation, for the Constitution exists as a compact between the people of the US NOT between the people of the US and the rest of the world."

A few years ago when former Cdn Prime Minister Brian Mulroney and a few of his chums were being investigated for allegedly taking illegal kickbacks on an Airbus purchase deal, the RCMP proceeded under the Mutual Legal Assistance treaty with Switzerland to seize banking records belonging to one of them. It made the request to the Swiss authorities through diplomatic channels, and the Swiss then fulfilled their duties under the treaty by applying to their own courts for the seizure.

The guy in question challenged the search & seizure in Canadian courts, because it had been conducted outside the safeguards of the Canadian constitution, including the criminal law provisions governing what kind of case must be presented in order to obtain a search warrant (the mechanism by which the "reasonableness" of a search & seizure is controlled prior to it being conducted).

The gummint was in a quandary, since there was no *procedure* for applying Cdn constitutional guarantees to searches of Canadians' property abroad. The review mechanism was entirely ex post facto -- do it, and hope it stands up in court.

I forget what the court ultimately said, but I gather that the corruption investigation has never really been concluded.

.

[jody]

52. I see only one side of this exchange but past experience leads me to

support your reasoned conclusion. I use Chihuahua Repellent and it's 100% effective.

[MrBenchley]

53. Gee, Jody

You missed the intelligent half. But it would have enraged you and caused you to run and hide anyway.

[Liberal Classic]

56. I love Chihuahuas

What is this about repellent? My mom has 5 of the little devils. You mean a filter feature?

[jody]

60. The "sleeping man" icon at the top of an offensive message

allows you to ignore that person's post.

Just click on and irritants disappear. Try it for a few days and if not satisfied, go to your profile and edit your ignore list.

:hi:

[Lefty48197]

95. Anything to prevent listening to a differing opinion

God forbid there should be people in this world that disagree with you. Can't you just put your hands over your ears and dance around in circles singing "la la la la la la la"?

[slackmaster]

99. I use the Ignore feature to filter out asshole behavior, not ideas

It works pretty well, too.

[jody]

100. I listen to different opinions, it's pure BS that I ignore. eom

[Lefty48197]

96. Jody, if you don't like what people say

then you can just go and tell the teacher.

[jody]

101. Mature people rarely engage in infantile discourse for very long.

Do you understand that?

[MrBenchley]

102. Other people

engage in nothing but infantile discourse...and run and hide behind "ignore" when their arguments are revealed to be spurious.

[1a2b3c]

61. Carefull

I got a post deleted for saying almost the exact same thing. :-) Its probably best to put him on ignore. Its not like you will ever see him debate something. More than likely, you will get the typical "sell this to someone dumb enough...." Or my personal favorite, "what a pantload".

Just to let you know there are trolls here who will try to bait you into breaking the rules so they can hit the alert. I guess for some people its easier to try and get you tombstoned then it is to actually debate a topic.

[Character Assassin]

62. Load those crying peddles into river-pants!

Its not like you will ever see him debate something.

Indeed.

[Rick Newland]

54. So what you are saying

that the 2nd amendment is a collective right so "we all have this right". Thank you

[MrBenchley]

79. Yes

We all have the right to serve in our state militia.

[hijinks]

83. good thing we are in the unorganized militia!

http://www4.law.cornell.edu/uscode/10/311.html
QUOTE
Sec. 311. - Militia: composition and classes

(a)

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b)

The classes of the militia are -

(1)

the organized militia, which consists of the National Guard and the Naval Militia; and

(2)

the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia
UNQUOTE

I guess we loose the RKBA when we turn 45? Not to mention that only men have it...

[MrBenchley]

84. Even better that the Second Amendment

specifies "well regulated", not "unorganized" or "dishonest"....

[hijinks]

85. then by all means

work to have it changed.

its the law now and has been for a LONG LONG time.

BTW, thanks for posting federalist 29 which contains the following passage about regulating the militia.

"The project of disciplining all the militia of the United States is as
futile as it would be injurious, if it were capable of being carried
into execution. A tolerable expertness in military movements is a
business that requires time and practice. It is not a day, or even a
week, that will suffice for the attainment of it. To oblige the great
body of the yeomanry, and of the other classes of the citizens, to be
under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well-regulated
militia, would be a real grievance to the people, and a serious public
inconvenience and loss. It would form an annual deduction from the
productive labor of the country, to an amount which, calculating upon
the present numbers of the people, would not fall far short of the whole
expense of the civil establishments of all the States. To attempt a
thing which would abridge the mass of labor and industry to so
considerable an extent, would be unwise: and the experiment, if made,
could not succeed, because it would not long be endured. Little more can
reasonably be aimed at, with respect to the people at large, than to
have them properly armed and equipped; and in order to see that this be
not neglected, it will be necessary to assemble them once or twice in
the course of a year."

So what they were saying is that the people should be assembled once or twice a year TO INSURE THEY ARE PROPERLY ARMED AND EQUIPPED!

[MrBenchley]

86. Don't need to change it...

It's the RKBA crowd and Ashcroft that are trying to make the change.

[hijinks]

87. what a pantload

The FACT is that the law says that the militia is all able bodied males between 17 and 45.

Before you go rambling on about 'unorganized' vs. 'well-regualted', the FACT is that the congress has regulated the militia via the selective service system.

If you don't like these FACTS please go call your congressmen to have the laws changed.

[MrBenchley]

89. Yeah, surrrrrrrre....

Now go play "lets pretend" with the gun nuts at highroadrage.com.

[hijinks]

90. I love the smell of insults in the morning

smells like victory.

[MrBenchley]

91. Smells more like the same rancid RKBA crap

as always.....

[hijinks]

92. lol

no argument I see...

[MrBenchley]

93. None needed, either

[hijinks]

94. Refute the FACTS in reply 87 please. n/t

[MrBenchley]

97. WHAT facts?

There are no FACTS here...other than that some people want to pretend "well regulated" is synonymous with "unorganized" because they have no other REAL argument.

[hijinks]

103. call your congressman

The law is what it is. The militia is all males from 17-45.

If you can provide a source that says otherwise (besides your incessant babble) please do.

[MrBenchley]

105. Don't need to...

Peddle it to someone who's dumb enough to believe it. Try Highroadrage.com...when they're not obsessing about pretending to be Democrats and sneaking on here, they'll swallow any crap, no matter how dishonest.

[hijinks]

107. More insults in the morning...

no argument, only question begging.

[MrBenchley]

109. And still no facts from the RKBA crowd

[hijinks]

113. The facts...

have been presented. the militia is every able bodied male from 17-45.

http://www4.law.cornell.edu/uscode/10/311.html

Sec. 311. - Militia: composition and classes


(a)

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b)

The classes of the militia are -

(1)

the organized militia, which consists of the National Guard and the Naval Militia; and

(2)

the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

[MrBenchley]

114. No, a bit of silliness has beenn presented

Still pretending "unorganized" is synonymous with "well regulated"? Hahahahahahaha....

[hijinks]

115. goto 113

Since we seem to have come full circle, I will now just point you back to the previous message where I quoted the law directly.

Please ping me when you can come up with something refuting the USCode other then your senseless question begging.

[MrBenchley]

116. No matter how you slice it, it's baloney

[RoeBear]

28. Are these all lies?

http://www.guncite.com/gc2ndfqu.html

For example:

"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

[MrBenchley]

29. Tench Coxe?

That would be the same Tench Coxe that John Adams said was a "wiley, winding, subtle, and insidious character".

Tell us what role Tench Coxe had in drawing up the Constitution, please....

[RoeBear]

30. He was a delegate to the...

...Continental Congress from PA.

http://politicalgraveyard.com/bio/coxe-crago.html

I'm disappointed with you Benchley; quoting a snide comment from John Adams was the best snide comment you could come up with?

[MrBenchley]

31. Yeah, I'm hip

He was also a newspaper publisher and got involved in a land swindle later...

So what did he have to do with the Constitution? Oh, that's right....NOTHING.

[RoeBear]

33. I'm not a history major...

...but I assume that delegates had voting privileges.

I will return to my original question, are the quotes of the founding fathers fake?

Here's another one:

"No freeman shall ever be debarred the use of arms."
---Thomas Jefferson: Draft Virginia Constitution, 1776.

[MrBenchley]

35. Boy, I'll say!

"I assume that delegates had voting privileges"
In the Continental congress...you DO realize that was DIFFERENT than the Consituttional Convention?

http://memory.loc.gov/ammem/bdsds/intro01.html

"Draft Virginia Constitution, 1776"
Without even bothering to look it up, I would imagine that this didn't make it into the final draft....or it would be credited to the Virginia Constitution, no?

Here's the John Adams quote: "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
That certainly IS a collective argument and nothing but. How can it be said to be otherwise?

[hansberrym]

67. I suppose you are simply ignoring phrases that you don't like once again.

"except in private self-defense"


is an EXCEPTION to the preceding statement "...to arms in the hands of citizens, to be used at individual discretion..."


That means the only time a person (in Adams' opinion) could use arms at individual discretion would be in PRIVATE SELF-DEFENSE.

"Private self-defense", needless to say is not in the least a collective
right.



Furthermore Adams'also declare's no objection to an individual's using arms under "IMpartial orders". This fits with a right of individuals to defend the state in addition to defending themselves.

Impartial, would mean orders that relate to the security of the whole
and not just one part. His objection is to the individual citizen's use of arms under PARTIAL orders.

[MrBenchley]

73. Go snivel about it to someone who cares...

[RoeBear]

77. Translation:

"You're right, I'm wrong; but I'll never admit it."

[MrBenchley]

78. Nope

It means "what a stupid comment."

[hansberrym]

104. Perhaps you can explain the meaning

of the word "except".

Or the meaning of the phrase "except in private self-defense" in the context of the quote you posted.

I trust it will be at least as entertaining as your attempts to
explain the terms "collective" and "individual" rights.

[MrBenchley]

106. Gee

The Second Amendment doesn't have the word "except" in it....

[hansberrym]

108. Still playing that ol'

"out of context" game are we?


But then you don't have any other game to play, since even the sources you cite, disprove your arguments.

[MrBenchley]

110. Hence the sniveling and whining when I post facts...

"U.S. Department of Justice
Office of the Solicitor General
Solicitor General
Washington, D.C. 20530
August 22, 2000

Dear Mr. (Name Deleted):

Thank you for your letter dated August 11, 2000, in which you question certain statements you understand to have been made by an attorney for the United States during oral argument before the Fifth Circuit in United States v. Emerson. Your letter states that the attorney indicated that the United States believes “that it could ‘take guns away from the public,’ and ‘restrict ownership of rifles, pistols and shotguns from all people.’” You ask whether the response of the attorney for the United States accurately reflects the position of the Department of Justice and whether it is indeed the government’s position “that the Second Amendment of the Constitution does not extend to the people as an individual right.”

I was not present at the oral argument you reference, and I have been informed that the court of appeals will not make the transcript or tape of the argument available to the public (or to the Department of Justice). I am informed, however, that counsel for the United States in United States v. Emerson, Assistant United States Attorney William Mateja, did indeed take the position that the Second Amendment does not extend an individual right to keep and bear arms.

That position is consistent with the view of the Amendment taken both by the federal appellate courts and successive Administrations. More specifically, the Supreme Court and eight United States Courts of Appeals have considered the scope of the Second Amendment and have uniformly rejected arguments that it extends firearms rights to individuals independent of the collective need to ensure a well-regulated militia. See United States v. Miller, 307 U.S. 174 (1939) (the “obvious purpose” of the Second Amendment was to effectuate Congress’s power to “call forth the Militia to execute the Laws of the Union,” not to provide an individual right to bear arms contrary to federal law”); Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942) (“The right to keep and bear arms is not a right conferred upon the people by the federal constitution.”); Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973) (“It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution.”); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Warin, 530 F.2d 103, 106-07 (6th Cir. 1976) (“We conclude that the defendant has no private right to keep and bear arms under the Second Amendment.”); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971) (“There can be no serious claim to any express constitutional right of an individual to possess a firearm.”); Ouilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (“The right to keep and bear handguns is not guaranteed by the second amendment.”); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) (“The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has some relationship to the preservation or efficiency of regulated militia, the Second Amendment does not guarantee the right to possess the weapon.”); United States v. Tomlin, 454 F.2d 176 (9th Cir. 1972); United States v. Swinton, 521 F.2d 1255, 1259 (10th Cir. 1975) (“There is no absolute constitutional right of an individual to possess a firearm.”).

Thus, rather than holding that the Second Amendment protects individual firearms rights, these courts have uniformly held that it precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia. Similarly, almost three decades ago, the Department of Justice’s Office of Legal Counsel explained:


The language of the Second Amendment, when it was first presented to the Congress, makes it quite clear that it was the right of the States to maintain a militia that was being preserved, not the rights of an individual to own a gun… . . . . Courts…have viewed the Second Amendment as limited to the militia and have held that it does not create a personal right to own or use a gun . . . . In light of the constitutional history, it must be considered as settled that there is no personal constitutional right, under the Second Amendment, to own or to use a gun.


Letter from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, to George Bush, Chairman, Republican National Committee (July 19, 1973) (citing, inter alia, Presser v. Illinois, 116 U.S. 252 (1886), and United States v. Miller, 307 U.S. 174 (1939)). See also, e.g., Federal Firearms Act, Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary, United States Senate 41 (1965) (Statement of Attorney General Katzenbach) (“With respect to the second amendment, the Supreme Court of the United States long ago made it clear that the amendment did not guarantee to any individuals the right to bear arms.”).

I hope this answers your question.

Thank you again for writing.

Yours sincerely,

Seth P. Waxman "

http://www.vpc.org/studies/ashapb.htm

Of course those were the days when we had an honest solicitor general and not a right wing piece of shit like Ted Olson....

[hansberrym]

111. the "fact" you posted earlier, and that I responded to in my previous post

was a quote from John Adams. I see you are dodging again.

That Seth Waxman says something about the Second Amendment does not make it so, anymore than what John Ashkroft says about it.


You offered John Adams' quote as proof that only a collective right was intended, when in fact the quote shows just the opposite. Adams' makes an exception for "private self-defense", and the quote is actually evidence AGAINST an exclusively collective right.



According to Seth Waxman:
"The language of the Second Amendment, when it was first presented to the Congress, makes it quite clear that it was the right of the States to maintain a militia that was being preserved, not the rights of an individual to own a gun"
{end Quote}

Yet Waxman is completely wrong in the above statement.

Madison's draft of what became the second amendment, nor any working draft thereafter, ever used the phrase "the right of the States" to do anything, it always was "the right of the people".


It seems Mr. Waxman and yourself share a penchant for substituting words at your pleasure. Neeedless to say this is not a valid form of interpretation.

[MrBenchley]

117. Yeah, we know

"was a quote from John Adams"
Which stresses the collective right to arms....and does not carry the force of law....and was not reflected in the Second Amendment.

"Yet Waxman is completely wrong in the above statement.
Yet Waxman is completely wrong in the above statement."
Between you and Waxman, I'll believe Waxman.

[hansberrym]

119. Are you forgetting that was your quote?

Why are you now running away from John Adams'?

"...and does not carry the force of law....and was not reflected in the Second Amendment."

Seems like you thought his quote made a good argument when you posted it.



"Between you and Waxman, I'll believe Waxman"

It is not a case of belief, Waxman makes a statement that is factually incorrect. None of the drafts of the Second Amendment contained "the right of the states...". That is not a matter of opinion, it is just fact.

[MrBenchley]

120. Roe dredged it up

as part of his half-assed gun nut page of phony quotes, back when he was trying to pass off Tench Coxe as the be-all and end-all...go back and read.

"Waxman makes a statement that is factually incorrect"
Sez you. I'll believe a former solicitor general of the US instead of an RKBA "enthusiast" who can't follow a thread correctly or understand a John Adams quote.

[MrBenchley]

121. Nope, that was Roe who dredged it up

as part of his half-assed gun nut page of phony quotes, back when he was trying to pass off Tench Coxe as the be-all and end-all...go back and read.

"Waxman makes a statement that is factually incorrect"
Sez you. I'll believe a former solicitor general of the US instead of an RKBA "enthusiast" who can't follow a thread correctly or understand a John Adams quote.

[hansberrym]

122. Roebear posted a link, but you took it from there. In your

response (Mr Benchley #35), YOU quoted John Adams and concluded "That certainly IS a collective argument and nothing but. How can it be said to be otherwise?"

Maybe you can ask Seth Waxman what "except in private self-defense" means in the John Adams' quote you now distance yourself from.

[MrBenchley]

123. Even better

I'll try and ask any sane person what a private opinion about the collective nature of our right to bear arms that is not reflected in the Second Amendment could possibly have to do with the Second Amendment.

[jody]

8. The 2A is a later step in recognizing a citizen's inalienable RKBA

State constitutions written while "Each state retains its sovereignty, freedom, and independence" (Articles of Confederation) clearly state that the right to defend self and property is an "inalienable right".

and Vermont also said
QUOTE
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
UNQUOTE

As an inalienable right, things like "right to freedom of speech" and "right to bear arms for the defence of themselves and the state" can not be alienated or given away.

Whatever SCOTUS eventually says the 2A means will not alter the basic facts I gave above.

[Romulus]

16. too bad about MD

My new home. :cry:

Unlike my adopted homeland of VA, there is no RKBA clause in the MD constitution. MD's militia clause says that a militia exists to protect the government, not the citizens.

I could give you a guess as to why that is, but I'm afraid it would be taken as a bigoted anti-religious-group remark.

(edited for spelling & emoticon)

[MrBenchley]

18. In fact, Maryland was

founded on the principle of religious tolerance.

[MrBenchley]

19. In fact, Maryland was

founded on the principle of religious tolerance.

[happyslug]

39. Was the first, but did nto last.

And within a generation kicked out the founders (who were Catholics) and any other Non-protestants.

Thus it is Pennsylvania that has the longest history of religious tolerance in North American (since 1689 when William Penn Founded the Colony).

[MrBenchley]

41. Rhode Island also has a long history of tolerance

The Calverts were back in control in Maryland by 1715...

[happyslug]

48. Rev. William Rogers

One of my favorite Puritan, in many ways he is the founder of the American version of Religious Tolerance (Since Humans control all relgions, and as Humans are all not perfect, any relgion can not be perfect, Therefore all reglion are herical, but God wanted us to have Faith. Since God wanted us to have faith his work is in every relgion and as such to exclude one without good cause is to exclude God. Good Cause being something that would harm society i.e. burning people as part of your relgion etc.)

Rhode Island, while it was the most tolerated, passed no law on toleration (Let it be a limit of who to tolerate) also by not having a law, the Privy Council in England could not overturn it. Thus Pennsylvania is the state with the longest histroy of LEGAL tolerance as opposed to by actions of the ruling class.

While the Calverts were back in power by 1715, the Acts of intolerance were not repealed for many years afterwards (the Calverts and most Marylanders just ignored them, competing with Pennsylvania for Settlers).

[MrBenchley]

50. Thomas Kennedy of Hagerstown

got passed one of the nation's first bills expressly guaranteeing religious tolerance to Jews in 1826...

A now-forgotten hero of America...

http://www.mdarchives.state.md.us/msa/speccol/sc2200/sc2221/000025/html/intro.html

I'll have to read some more about Rogers.

[happyslug]

64. Roger, the father of American religion tolerance.

Rogers was asked about his religious tolerance (This is a Paraphrase, the exact quote you can look up) "Would you let in Quakers and papists?" His Response was classic "I would leave in Jews and Turks".

Remember he was living in the mid-1600 New England, what he meant by papists were the Catholics and what he meant by Turk were Moslems.

In his early days as a Puritan Preacher he advocated Separating yourself from the potential evil including exposure to Anglicanism whenever a Puritan went back to England and had to attend an Anglican Mass. Rogers told his followers NOT to associates with those who had gone back to England and went to an Anglican mass. Rogers than went more radical, isolating his followers from people who associated with people who had gone back to England, than People who had associated with people had dealings with people who had gone back to England. You can see where this was going, total isolation.

One Winter he was seen taking Communion only with his Wife. I have always said he started to have questions as to his wife for she had to go out a buy things for the household thus was "exposing" herself to heresy. Once that thought crossed his mind, the thought that he was the only "pure" puritan had to be rejected for how can you be a COMMUNITY of one? The following Spring was when he started to preach his new doctrine of tolerance and that all churches were heretical for they were maintained and run by man.

He grew to tolerate almost every type of religion in his Colony Of Rhode Island (which he founded after being kicked out of Massachusetts for preaching his new doctrine of Tolerance).

My point of mentioning him, is his doctrine that ALL RELIGIONS ARE GOOD, which one is truly God's, only God knows. Since God permits all these types of RELIGIONS he had to have some reason for them The reason being that man can NOT truly comprehend what God wants of man, and therefore God made all of these RELIGIONS so man will do what God what Man to do.

Thus American Religion tolerance is more in the line with Rogers than Voltaire. Voltaire advocated a more deistic (and differently a more anti-clerical) view to Religion. Voltaire may have had greater influence among Franklin and his cohorts in the upper class of America in the late 1700s, Rogers had more influence in the middle and lower classes of America. Thus Roger’s position is the majority position as to religion in America today, not Voltaire’s.

[jody]

65. Many thanks for that summary.

:hi:

[MrBenchley]

72. Interestingly

...one of the other things that got him kicked out of Massachusetts was his insistence that the Native Americans ought to be properly compensated for the land taken from them by colonists. He was truly a man ahead of his time....

[Lefty48197]

98. There's no RKBA clause in the MD constitution?

Then you better stock up on thousands of rounds of ammo and dozens of assault weapons in case they come to take your guns away.

[happyslug]

47. Look at the Militia Act of 1794

The Supreme Court (and other courts) have looked at how the first
Congresses handled items mentioned in the Constitution, for example the court system itself, can a Federal District Court exceed a state border? No, for the First Congress set up the first Federal Courts, one per state. The Congress thus did not believe a federal Court (but not a Federal Appeals Court) could exceed the borders of a State.

The same with other powers of the Federal Government, the Courts have looked at how the First Congress viewed those powers. The First Congresses only addressed the Militia provisions in the Constitution and the Bill of Rights in the Militia Act of 1794 (Which stayed the law till repealed in 1903 by the Dick Act).

The Militia Act mention .69 Caliber Muskets (The Assault Rifle of its day), Rifles (the Sniper weapons of its day) and "hangers" (which were Swords, these were symbols of Rank AND a method to control troop movements on the battlefield).

Two things are missing from the 1794 Act, Pistols and Cannon. Pistols had been around for almost 300 years and Cannon had been around for almost 500, thus why are these two weapons NOT in the Act? As to cannon that can be explained that Congress did not see anyone buying Cannon for these were crew served weapons and as such more than any one person can buy (an alternative position is that Congress attitude is if you can afford Cannon, go ahead a buy them, we will not stop you).

Pistols, unlike Cannon, are NOT a crew served weapon. Pistols, like Rifles and Muskets were individual weapons and most people could afford to buy them (even at that time period when these were all custom made and in real terms much more expensive than similar weapons produced today). While Pistols existed, they were NOT mentioned.

As to who was in the Militia, the Act said every WHITE male between 18 and 45. This seems to be to appease the South by Not including slaves or free blacks. Please note if you look into the practice of the Militia and the Military of the time period you will see this is NOT who to serve, but the MINIMUM PEOPLE who were to serve. This fact was while known to CONGRESS FOR ALMOST ALL OF THEM HAD SERVED IN THE CONTI NATAL ARMY OR IN THE MILITIA DURING THE REVOLUTION. If the phase All White Males was a limitation, that limitation was going to be violated as soon as the men were organized in Platoons and than again when formed into “Companies, Battalion and Regiments”. The violation was because that under the Common Law every 20 Soldiers had to have one “Washer Woman”. That the Washer Woman tended to the Wife of the Sargent in Charge of the 20 men was also well known to Congress. Thus any group of 20 Soldiers (be it Regular Soldiers or Militia) would have one female, five to a Company of 100, 50 to a Regiment of 1000 men. Thus “Male” did not mean “No Females” and Congress knew it. Please note "Washer Woman" had been part of European armies since before the Crusades and stayed part of Western Armies till the 1880s. In the 1880s Congress passed a law outlawing "Washer Woman" but this was do to a professionalizing the duties of Cook in the army (Cooking had been one of the jobs of the Washer Woman) and Congress's decision not to send such women to school (Congress perferred to send men).

As to the Age limits, the age limits mentioned in the Act was the Age limits for service in the Old Roman Republican Army. In the late 1700s anything of the Roman Republic was popular thus the age bracket. Given that any colonels or Generals would exceed the age limit of 45 and drummer boys were almost always less than 18, these where NOT age limitation, but like the term “male” minimums. This can be shown by the fact New England kept up its practice of including Free Blacks in its Militia after the passage of the Act. Thus while All White Males had to serve, women, blacks and people over and under age could also serve.

Thus I have to say the Act supports an Individual Right to Firearms of the Military nature (i.e. Rifles etc) and that means everyone (NOT restricted to White males between the ages of 18-45) but restrictions of weapons more capable of crime could be restricted (i.e. Pistols) if such weapons had less miliary usability than Rifles.


The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm

[hansberrym]

66. pistols are in fact mentioned in your citation.

{excerpted from milita act of 1792}
IV. And be it further enacted, That out of the militia enrolled as is herein directed...

... Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for PISTOLS...(my emphasis)

[happyslug]

69. Dragoons???

You forgot the early part of that paragraph:

"That each company of artillery and troop of house shall be formed of volunteers from the brigade"

Thus while part of the Militia establishment, was NOT mandated militia, but a volumteer elite group. Thus, while part of the Militia, the weapon carried by these men where NOT the weapon carried by most of the Militia. Thus my position that pistols can be more heavily regulated than rifles for it was MUSKETS congreess was counted on the Militia to have NOT cannon and NOT pistols. Remember the number of BOTH artillerymen and Calvary (Dragoon was the French name for Mounted Infantrymen, by the time of the American Revoution almost all US Calvary were Dragoons NOT "Line Calvary") could be no more than one out of eleven militiamen.

I must restrict the Second Amendment to those modern equilvent of Paragraph one of the Militia Act of 1792, these were "Every Able-Bodied White Males" not the Dragoons or Artillery.

[hansberrym]

70. I see it as little differently,

While I agree that the reference to pistols does not apply to all
militia, I think the most important aspect is that the individual was to supply himself with these arms(pistols) as opposed to other arms(canons, etc.).

excerpt
"Each dragoon to furnish HIMSELF with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols,..." {my emphasis}
end excerpt


Granted the duty to arm oneself with these arms (pistols)was limited to, as you say, 1 in 11 persons serving in the militia, that does not suggest that a right would also be limited. The right to bear arms was not limited to 1 in 11 of the PEOPLE, nor was it limited to defense of the state.

[RoeBear]

112. I say post this in...

...General Discussion and see what results we get.

[FlashHarry]

118. The result would be...

...that it would be locked and moved back here! :hi:

This is a great thread, full of serious discourse (and the occasional ad hominem attack––keep cool, folks), but it needs to stay here in the J/PS forum.

FlashHarry
DU Moderator