PDA

View Full Version : Maybe I'm taking the 2nd Amndmt too literally


Bullcoop
04-19-2011, 11:54 PM
OK, here is my argument, and I need to know what part I'm missing. Why can't we use the exact words and take that to a lawyer and say "I want my rights defended because of..."
So w/that in mind here's my argument, it's quite simple and I see no wiggle room.

As passed by the Congress:

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.


INFRINGE - to encroach upon in a way that violates law or the rights of another

ENCROACH - to enter by gradual steps or by stealth into the possessions or rights of another

(all definitions provided by Websters and are the primary definition of the word)

So when it says "SHALL NOT" I am taking that to mean in no way, shape, or form.
So the gov shall not encroach on our right to bear arms. Well isn't any gun law a gradual step into the rights of another. Granted we still have our firearms for now, but with as many gun laws as there are is it still a gradual step? One law would be a gradual step, many is a large encroachment, or if you will an infringement.
Which, in the truest sense, they are FORBIDDEN (remember, shall not), to do.
No matter the reason, public safety or whatever, isn't the Constitution supposed to be the end all answer, the ultimate trump card, if you will.

Obviously this argument doesn't work, it's too simple not to have been litigated before now. My question is why doesn't it work, what am I missing?
Thanks for helping to educate and inform a regular citizen who worries about all my rights not just gun control. This particular right seems so cut and dry to me that I wonder how government got around it.
BC

email
04-19-2011, 11:57 PM
It's for the children.

Bullcoop
04-20-2011, 12:08 AM
@ email I'm guessing you're joking. If not.
Again no reason should trump the Constitution. I don't care if it's a gun law that actually works as intended (which none that I can think of do, I mean sure safeties on guns is a good idea and a responsible thing to do, but it shouldn't be a law.)
Just like the safety belt law, although a good idea, slightly infringes on my driving. It shouldn't be a law IF in the Constitution they gauranteed us the right to drive w/out infringement.
BC

press1280
04-20-2011, 1:34 AM
Remember that the 2A existed prior to the BoR, and had it's own limitations(felon/mentally ill restrictions for example). That's the right that shall not be infringed, not one that says you can carry any weapon, anytime, anywhere, for whatever purpose.

rivraton
04-20-2011, 1:56 AM
Remember that the 2A existed prior to the BoR, and had it's own limitations(felon/mentally ill restrictions for example). That's the right that shall not be infringed, not one that says you can carry any weapon, anytime, anywhere, for whatever purpose.

:confused: Explain that statement, please..

Bullcoop
04-20-2011, 3:17 AM
Umm, yeah, I'm gonna need some clarification on your statemnt too.
First remember that I'm new here and that I don't think I know more than anyone else.
I ask for clarification not to debate you but simply for the information you can provide. The more I know the more informed my decisions and opinions are.
So thanks for your reply, but explain more please.
BC

Also remember my question. I know there are gun laws and cool you found a couple I agree with, (mentally ill, felons), but my conundrum isn't why there are gun laws, but how did they make any gun laws at all if it is expressly written in the Constitiuion that "shall not infringe".
To me there is no wiggle room in that statement. It's not "shall not infringe unless..."

Librarian
04-20-2011, 3:31 AM
but how did they make any gun laws at all if it is expessly written in the Constitiuion that "shall not infringe".
To me there is no wiggle room in that statement. It's not "shall not infringe unless..."

It comes from the idea that 'infringe' may be more narrowly applied than you may think.

It's a long read, but please read Eugene Volokh's paper
Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009) (http://www.law.ucla.edu/volokh/2am.pdf).

Volokh is a pro-gun UCLA law prof.

Bullcoop
04-20-2011, 5:28 AM
Thanks Librarian, exactly what I was looking for.
I just started the article and so far it really pisses me off that "they" don't consider a "burden" an "infringement".
"...Oh sure we can burden you with all these laws but it's JUST a burden not a real infringement..."
AArrgghhh
I really dislike bureaucracy for the sake of itself.
Great article though!
BC

ZombieTactics
04-20-2011, 9:44 AM
The problem is that there are all sorts of people who make their living convincing people that words don't really mean what they actually mean.

edlegault
04-20-2011, 10:07 AM
I think you have too many commas in the 2nd amendment. During the debates for the rights that became our Bill of Rights, the House side of Congress had all the extra commas in the amendment. It then went to the Senate which dropped all commas but one, then it went back to the House for adoption, then it went to the states for ratification (with only one comma).

-Ed-

p.s. (my other pet peeve for quotes is it's "unalienable", not "inalienable"... two different words)

CalBear
04-20-2011, 10:32 AM
I think you have too many commas in the 2nd amendment. During the debates for the rights that became our Bill of Rights, the House side of Congress had all the extra commas in the amendment. It then went to the Senate which dropped all commas but one, then it went back to the House for adoption, then it went to the states for ratification (with only one comma).
This is correct. The real version only has one comma. Throwing commas in back then was common place for indicating pause and had no real effect on grammatical meaning.

rivraton
04-20-2011, 11:32 AM
I think you have too many commas in the 2nd amendment. During the debates for the rights that became our Bill of Rights, the House side of Congress had all the extra commas in the amendment. It then went to the Senate which dropped all commas but one, then it went back to the House for adoption, then it went to the states for ratification (with only one comma).

-Ed-

p.s. (my other pet peeve for quotes is it's "unalienable", not "inalienable"... two different words)

Not trying to start anything just posting for informational purposes.

Depends on which copy you read (unalienable by split decision):

The unalienable rights that are mentioned in the Declaration of Independence could just as well have been inalienable, which means the same thing. Inalienable or unalienable refers to that which cannot be given away or taken away.

Here is a listing of known versions of the Declaration, showing which word is used:
The Declaration on parchment, now in the Department of State unalienable
The Declaration as written out in the corrected Journal unalienable
The Declaration as printed by Dunlap under the order of Congress unalienable
The draft of the Declaration in the handwriting of Jefferson now in The American Philosophical Society, in Philadelphia inalienable
The Declaration in the handwriting of Jefferson now in the New York Public Library inalienable
The draft of the Declaration in the handwriting of Jefferson now in the Massachusetts Historical Society, in Boston inalienable
The copy in the handwriting of John Adams of the "Rough draught" of the Declaration, now at the Massachusetts Historical Society. unalienable

nwoods
04-20-2011, 11:37 AM
It comes from the idea that 'infringe' may be more narrowly applied than you may think.

It's a long read, but please read Eugene Volokh's paper
Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009) (http://www.law.ucla.edu/volokh/2am.pdf).

Volokh is a pro-gun UCLA law prof.

Very interesting paper. Some other great references are, um, referenced in it as well

yellowfin
04-20-2011, 12:29 PM
The problem is that there are all sorts of people who make their living convincing people that words don't really mean what they actually mean.And too long of an established tradition of being able to totally override its meaning by coming up with an elaborate justification that really amounts to the government having an articulate way of saying "because we said so, because we want to, because we need to." At several points the insanity could have been stopped, but nobody saw the Supreme Courts as being the very despots they were supposed to be a barrier to. Read and listen to what Breyer (certainly undeserving of ever being referred to as Justice) has to say about his prerogative to interpret things as how he believes: it can only come from an oligarch who believes himself to be entitled to power.

violator22348
04-20-2011, 1:14 PM
The problem is that there are all sorts of people who make their living convincing people that words don't really mean what they actually mean.

Herein lies the entire problem, regardless of the softening of the American mind over the last 150 years.

You will often hear the anti-gun left (funny--I've been accused of that here)..cite the oft-parroted phrase " well-regulated means well-restricted, or controlled" Whenever the 'regulated' word pops up, pay attention-because 99% of the time it will betray a fool.

Here's why:. In the 18th century, when the Articles of Confederation, The Bill of Rights, and the Constitution were drafted, 'well-regulated' meant nearly the opposite of what the lefty's think it did. On April 18 1775, Samuel Prescott, William Dawes, Paul Revere, and literally dozens of forgotten Alarm Riders rode throughout Menotomy, Lexington, Concord and the surrounding villages warning of the British soldiers on their way.

They never yelled "The Redcoats (or 'the British') are coming". We were all British at the time. Yelling 'the British are coming' would be absurd.

What was yelled was this: "The Regulars are out!"

Regulars?.

In 18th century parlance, 'regular' meant 'well-functioning' (ever heard about fiber making you more 'regular'?)....well-disciplined, well-functioning----as a career British soldier of the time would be. There are thousands of such examples in 18th century writings, but most Americans are dumb, and just roll over and accept that 'well-regulated' means 'restricted'.

This is the war we fight, and it is constant, endless, and exhausting. I have to re-educate nearly every anti-gun person I meet, and their eyes glaze over, because I'm not telling them what they want to hear.

Good luck out there!

Legasat
04-20-2011, 1:14 PM
Normal everyday definitions, are not the same as legal definitions. You know, the legal definitions that are twisted, bent, mauled, changed and mutilated by Judges that don't like the normal everyday definitions.

I'm just sayin...

Don29palms
04-20-2011, 2:04 PM
OP for what it's worth I agree with you. As government gets bigger our rights get taken away. And as far as that professor goes I don't think he's compltely right just as I don't think the people that say you should only be able to own a gun if you are a member of a militia are right. The Bill of rights is very straight forward and because of judges and law professors and politicians it's become twisted and warped. I guess I'm just an uneducated simpleton that is amazed at the BS that I and others have accepted over the years. It's not so bad really. They just take a crumb at a time until it's all gone. Remember they know what is best for us.

HazeyWolf
04-20-2011, 5:14 PM
I'm w/u 100% Bullcoop - its absurd that there are so many unchallenged laws and regulations which are in conflict with the most simple and elemental constitutional right to bear arms.

Has the NRA or any citizen crafted a new constitutional amendment that more clearly defines the right and could reconcile the matter? ...Seems a shorter route to enjoying our 2nd am. rights than outliving the endless legal challenges winding their way to the supreme court, and I doubt an amendment process may be any more dangerous to the 2A right than letting SCOTUS decide the constitutionality of every gun-law challenge that makes its way to them.

InGrAM
04-20-2011, 5:18 PM
The problem is that there are all sorts of people who make their living convincing people that words don't really mean what they actually mean.

+1 on this one.

Fastattack
04-20-2011, 5:49 PM
Its also interesting to compare and contrast the way liberals tend to defend 1A (or at least parts of it) and even add 'rights' that aren't even there (as in, a painting is free speech, etc.), but somehow 2A doesn't register with them.

Hopalong
04-20-2011, 6:49 PM
Let's face it

Everybody interprets the Constitution in their own way

And knows what it means for them.

The fact is though, that there are only nine people who's opinions matter

They are political people, and have spent a lifetime parsing words.

hornswaggled
04-20-2011, 9:34 PM
It's ultimately the Supreme Court's job to determine which laws are Constitutional or not. Heller vs. District of Columbia was a good start.

phalanxbl
04-20-2011, 10:03 PM
The "well-regulated militia" part of it is often quoted to support the argument that only the militia should be allowed to have arms.

It's actually the other way around. It's saying that the right to keep and bear arms, individually, is what facilitates having a militia in the first place.

It's in the same sense that the 1st Amendment exists so every individual has freedom of speech. It doesn't exist only so we can have "Freedom of the press"... as if only journalists can speak their minds freely.

In the same way that you don't have to be a journalist to enjoy freedom of speech, you don't need to be a part of a militia to be entitled to the right to keep and bear arms.

It's an individual right. Period.

Bullcoop
04-20-2011, 11:25 PM
@ Don29palms (great avatar btw), I agree about the prof being not 100%. Also the article was somewhat narrow because he confined himself to speaking in terms of "Self Defense" only. The 2A simply affirms (I can't justify writing gaurantees, so I'll go w/affirms) our right to bear arms. It doesn't require that arms be solely used for self defense. I wish the scope of his paper was wider. Of course then it's no longer an article it would be at least a book.

@ HazyWolf, good point. Out of all the Constitunional Amendments there is not one that seems more cut and dry to me than the 2nd. Unlike say the 1st when it says freedom of Speech and people have basically twisted that to mean freedom of Expression (paintings or mimes or whatever is all considered freedom of Speech).

Please no one get offended by my next statement, I begrudge no one their right to believe what they choose.

@Hopalong, I personally believe in God, but as far as the Bible goes I believe most of the stories in it are Moral Tales and not to be taken literally.
I don't believe that the Constitution was meant to be open for interpretation. I think it should be taken literally. The men that drafted that document had a specific intent when they set about the writing of the Constitution. I believe they chose their words carefully and accurately. I think what they were trying to avoid was confusion, or that the opinions of 9 people could invalidate what they had written. They were trying to prevent agenda driven opposition.

It's extremely hard to ratify the Constitution for a reason. Unfortunately the powers that be think that drawing a new line in the sand w/out radification is allowed.
Thanks for all the wonderful replies and excellent dialogue gentlemen!
BC

Oh, and as for a properly organized and armed malitia, it's not possible, because they don't allow us to own small arms used in warfare? Which is what a malitia is used for right, the defense of our homeland, against all enemies foriegn OR domestic!
We can have well armed paintball teams or airsoft squads, but thats all they'll allow us to have.

Hopalong
04-21-2011, 6:36 AM
Hey Bull, Although I may agree with you in principle

The only thing in this day and age that is not open to interpretation

Is a math problem

email
04-21-2011, 7:01 AM
It Is always amazing to me how much infringement we have on our second amendment rights.

However, our first amendment rights have been held by the supreme court to be almost uninfringable. An example would be the hateful protests of the Westbro Baptist church.

This country is headed in the wrong direction. "Progressively "...wrong. (like a ratchet)

email
04-21-2011, 7:08 AM
The public's misunderstanding that "militia" is the same as military or national guard...is wrong. Throw in some politics and shazam! More restrictions.

Kharn
04-21-2011, 7:24 AM
Another example to consider, a high-quality grandfather clock will have the face marked as 'regulated' and it is not because the law set the length of a second.

Bullcoop
04-21-2011, 8:06 AM
Too true Hopalong, too true. A damn shame.:no:
BC

Droc101
04-21-2011, 8:47 AM
Thanks Librarian, exactly what I was looking for.
I just started the article and so far it really pisses me off that "they" don't consider a "burden" an "infringement".
"...Oh sure we can burden you with all these laws but it's JUST a burden not a real infringement..."
AArrgghhh
I really dislike bureaucracy for the sake of itself.
Great article though!
BC

You have to remember that the one thing that makes this country so great is also its biggest downfall. Any one can vote. Any man woman or inbetween, regardless of education or intelligence, can make decisions that affect the rest of us. Sometimes when you put monkeys in a barrel the barrel tips over. (i just made that up. :) )

Droc101
04-21-2011, 8:49 AM
Hey Bull, Although I may agree with you in principle

The only thing in this day and age that is not open to interpretation

Is a math problem

Calculus disagrees with you, physics too. :)

GettoPhilosopher
04-21-2011, 9:17 AM
And too long of an established tradition of being able to totally override its meaning by coming up with an elaborate justification that really amounts to the government having an articulate way of saying "because we said so, because we want to, because we need to." At several points the insanity could have been stopped, but nobody saw the Supreme Courts as being the very despots they were supposed to be a barrier to. Read and listen to what Breyer (certainly undeserving of ever being referred to as Justice) has to say about his prerogative to interpret things as how he believes: it can only come from an oligarch who believes himself to be entitled to power.

This is true. It's also BS. ;)

Yes, I agree. There are times when the courts adopt ridiculously twisted interpretations to justify their own agenda. See the collective rights argument for the 2A, or the ridiculous rulings on what constitutes "public areas" vs. "private property" in CA. That being said, this argument does *not* address the difference between "infringement" and "regulation".

There are no unregulated rights in the US. Even your right to life has exceptions (the death penalty, IMHO). While there really are times the courts twist words, saying "any regulation whatsoever of gun rights is just the courts twisting words" is false. I'd also argue it's why we had such a bad legal record in the last 2 decades (Finally cleaning up!)...it was all the guys who tried to go to court and say "Your Honor, 'shall not be infringed'. I rest my case."

Thank god for guys like the Right People who're defending our rights properly (and successfully).

</rant>

email
04-21-2011, 10:45 AM
Wait a minute...

It says "keep and bear"...they never said "buy, manufacture, import, cause to be imported, or lend".

Hopalong
04-21-2011, 2:22 PM
Calculus disagrees with you, physics too. :)
I don't know much about calculus or physics

But was more in line with 2+2=4 thinking.

I think most people caught my meaning

Unless you want to parse words:)

To get back on topic here

This thread, and many others, debate the meaning and interpretation of the Constitution.

Ultimately, this is left up to 9 people, who are political in nature.

Judges either run for their bench seat (political in nature)

Or are appointed (by politicians)

Politics, no doubt, warps someone's objectivity.

Another major point that I took from a book written by Gerry Spence

(Who I don't particularly care for, but who I think is a very good and smart lawyer)

Spence says that the best lawyers, and "best legal minds", do not endeavor to become judges

Or law school professors

They are too busy making money, lots of it, and are above (and hate) politics.

Spence says that if judges were in a rotation, where they were picked from the lawyer population at large (kind of like public defenders)

Every once in a while, you'd get a really good judge.

Although it seems unrealistic, I thought this concept was interesting

And I think there is some truth to what Spence says.

In the mean time, we average citizens can vote

And wonder if the Founding Fathers are rolling over in their graves

Lost.monkey
04-21-2011, 2:56 PM
http://i1090.photobucket.com/albums/i371/lostmonkey1/2011-Congress.jpg

repubconserv
04-21-2011, 3:11 PM
Remember that the 2A existed prior to the BoR, and had it's own limitations(felon/mentally ill restrictions for example). That's the right that shall not be infringed, not one that says you can carry any weapon, anytime, anywhere, for whatever purpose.

lol wut? your whole statement is off, especially the first part.

timdps
04-21-2011, 6:39 PM
Wait a minute...

It says "keep and bear"...they never said "buy, manufacture, import, cause to be imported, or lend".

"A free people ought not only to be armed but disciplined; to which end a uniform and well digested plan is requisite: And their safety and interest require, that they should promote such manufactories, as tend to render them independent on others for essential, particularly for military supplies." - George Washington, 1790