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Scarecrow Repair
09-05-2011, 2:11 PM
Interesting article (http://davekopel.org/2A/Mags/Collective-Right.html) on where the "collective right" interpretation of the 2nd amendment came from. Personally, I never could understand how anyone could think any of the bill of rights could be a right of the government, since the entire purpose was to list the unalienable human rights that government was to leave alone. But politicians love to misinterpret whatever they can in pursuit of power.

Fastattack
09-05-2011, 2:21 PM
Leave it to the over-educated left-wing crowd to come up with insane ideas that, if repeated enough eventually become group thought. These people see the constitution as an obsolete piece of paper which needs to be interpreted in today's context - err, I mean, in the way they want it to mean. So, everyone wonders about Bush II but in the end, I say that he will be remembered for his appointments to the SCOTUS (if nothing else).

gatesbox
09-05-2011, 2:37 PM
Interesting article, in fact this would make an interesting portion of a larger book. As I read so many different historical overtones came to mind, restricting machine guns in the era of prohibition, seems like an obvious tie to federal government policing of what also should have been state regulated or in fact even better unregulated alcohol production.


Leave it to the over-educated left-wing crowd to come up with insane ideas that, if repeated enough eventually become group thought. These people see the constitution as an obsolete piece of paper which needs to be interpreted in today's context - err, I mean, in the way they want it to mean. So, everyone wonders about Bush II but in the end, I say that he will be remembered for his appointments to the SCOTUS (if nothing else).

Just curious if this is supposed to be a dig, I always found it funny when one group calls another overeducated...what does that make the accusing party? Is it a stretch to suppose undereducated?

sreiter
09-05-2011, 4:32 PM
I get massively flamed every time I bring this up, but the truth is the truth....let me start by says I'm as ardent a true believer to our cause as anyone on this board.


That said, I've studied enough historical/original documents (federalist/anti federalist papers, letters, etc.) to believe the framers had militia in mind when constructing the 2a....BUT where people, including a lot on this board miss the boat is, the militia is made up of individuals.

Back then, they believed that states where separate powerful independent governments. And people were to provide for the common defense. They the people would elect governments that best represented the will of the people they were governing. It was truly a government For, Of, and By the people (well a lot closer then we have now anyway)

People's rights to be armed came from the English Bill of Rights of 1689 undid the disarming of Protestants.

But also, each state and possibly city had their own firearms laws. Those laws include things like you MUST keep a weapon of specific specifications, "X" amount of ammo, "x" powder horns, and various other things like a bed roll, etc. They also provided for how many times a year you must present yourself on the practice field per year when called to muster.

The reason for these laws were you for expected (almost conscripted) to muster when called to arms...for the common defense...So owning a PERSONAL gun was needed (mandatory) for the collective welfare. In certain cases, as a able bodied male, you didn't have a choice, you were required by law to own one.

But going back to the original part of my post. since it was government of the PEOPLE, and your vote was actually supposed t mean something, you being armed and part of a militia that could change your government was a huge individual right, power and responsibility.

The right let you have arms to decide your destiny as long as that was also the will of the majority (revolution, insurrection, etc)

So in a absolute sense, it is both a individual and collective right at the same time.

I believe that's where most people go astray. Each side has their agenda and frames they're arguments to bolster there position. You'll never get a anti to say "yes" something as simple as "if you walked in and found your wife/mother/loved one being gang raped, would you rather have a gun or not"

Luckily for our side (the right side) it being a collective right is predicated on it being a individual right.

I believe this was the line of thought Scalia had in Heller when he broke rhe 2a wording down into clauses

G60
09-05-2011, 4:53 PM
Many states have far less ambiguous provisions protecting the individual right to bear arms for personal defense.

Reductio
09-05-2011, 5:10 PM
Just curious if this is supposed to be a dig, I always found it funny when one group calls another overeducated...what does that make the accusing party? Is it a stretch to suppose undereducated?

Since it's often the self-admitted goal of much of higher education to be as blatantly liberal as possible, and to make you conform... maybe a better term would be 'sane.'

press1280
09-05-2011, 5:15 PM
The good thing now is that these horrible decisions will no longer just be allowed to stand and mushroom into revisionist history. We'll challenge all the way to SCOTUS, and if(God forbid) a future court tries to re-write the 2A, then that decision will be quickly overruled by the people through a Constitutional Amendment.

GaryV
09-05-2011, 5:37 PM
Interesting article (http://davekopel.org/2A/Mags/Collective-Right.html) on where the "collective right" interpretation of the 2nd amendment came from. Personally, I never could understand how anyone could think any of the bill of rights could be a right of the government, since the entire purpose was to list the unalienable human rights that government was to leave alone. But politicians love to misinterpret whatever they can in pursuit of power.

You're confusing "collective" right with a right of the state government. As the article makes clear, there is a difference. And having said that, there is actually very good evidence that the original intent of ALL of the Bill of Rights was to protect the states, not individuals. You're forgetting that the Bill of Rights was only meant to restrict the power of the Federal government, not government in general. That didn't happen till the passage of the 14th Amendment.

For example, we know that the religious freedom in the First Amendment did not originally apply to individuals, but was included to protect official state religions from interference by the federal government. The freedom of speech in the same amendment was meant to protect the speech of state legislators speaking for the people on the floor of the legislature, not public speech by the masses. In fact, it was only shortly after the ratification of the Bill of Rights that virtually exactly the same group of people in Congress passed the Alien and Sedition Acts, which criminalized most individual political speech critical of the government. You should read Akhil Reed Amar's book The Bill of Rights: Creation and Reconstruction for a better feel for what was originally intended.

The point which people seem to miss is that all this changed after the end of the Civil War. By then, the individual rights idea about the Bill of Rights was very popular, and generally accepted, but still had little to no force of law. In a way, it was a popular shift with no legal basis, a lot like the "collective right" theory of the 2nd Amendment. The difference is that Congress took the step to formalize this interpretation by passing the 14th Amendment, which, once ratified, made the individual right idea actually part of the Constitution. Fortunately for us, it was pretty clear that they meant to include the right to keep and bear arms in the group of rights covered by the 14th.

bwiese
09-05-2011, 6:14 PM
Many states have far less ambiguous provisions protecting the individual right to bear arms for personal defense.

And yet many are fairly useless (until further court work).

As I recall, Oregon's state RKBA has been effectively reduced down thru the years to allowance for possession of musketry - and the only thing that keeps Oregon gun-friendly is political power.

Hawaii has an exact copy of US RKBA and look at HI's gun laws.

vantec08
09-05-2011, 6:21 PM
Many states have far less ambiguous provisions protecting the individual right to bear arms for personal defense.

. ... . . all of which can be trumped by ONE SCOTUS vote.

FullMetalJacket
09-05-2011, 6:31 PM
It takes a special kind of denial to argue that in the Bill of Rights...

...a set of amendments intended to protect us from the excesses of a powerful central government...

...that the Second Amendment's clause "the right of the people to keep and bear arms shall not be infringed"...

...somehow permits justification for the government to summarily disarm individuals.

mag360
09-05-2011, 6:55 PM
I love when I get to explain to anti's that "well regulated militia" means well equipped and similarly trained. it has nothing to do with "regulation" as a restriction of bearing arms to only "whoever you decide qualifies" as militia.

strongpoint
09-05-2011, 8:18 PM
"[To deny that the right protected is one enforceable by individuals] the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used "right of the people" in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment's "right of the people" had reverted to its normal individual right meaning; (4) "right of the people" was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished "the states" from "the people," although it had failed to do so in the second amendment."

-- B. Kates, Jr.
Handgun Prohibition and the Original Meaning of the Second Amendment
82 Mich. L. Rev. 204 (1983)


"In recent years it has been suggested that the Second Amendment protects the "collective" right of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."

-- Stephen P. Halbrook
That Every Man Be Armed: The Evolution of a Constitutional Right 83 (1984)



both are cited in

Glenn Harlan Reynolds
A Critical Guide to the Second Amendment (http://www.guncite.com/journals/reycrit.html)
62 Tenn. L. Rev. 461-511 (1995)

which is great.

Drivedabizness
09-05-2011, 8:42 PM
Ummmm...some of this stuff is authentic frontier gibberish.

The Framers were wordsmiths - VERY careful with the language they used. Your claim that the Bill of Rights was designed to protect States rights would be laughable, if it weren't such a flawed line of thought. The 1st Amendment not only precludes the Feds stomping on the States and their existing "preferred" religions, it protects the "right of the people" to do a number of things (e.g peaceably assemble, petition for redress). Just as the 2nd and a number of the other original BOR's enumerate a number of other rights belonging to the People, that the Feds are enjoined from infringing.
As otherwise noted, many of the original States placed many of the same kinds of protections in their own Constitutions.

otalps
09-05-2011, 9:50 PM
You're confusing "collective" right with a right of the state government. As the article makes clear, there is a difference. And having said that, there is actually very good evidence that the original intent of ALL of the Bill of Rights was to protect the states, not individuals. You're forgetting that the Bill of Rights was only meant to restrict the power of the Federal government, not government in general. That didn't happen till the passage of the 14th Amendment.


This is a common argument but read Dred Scott and other writings from the days of the founding and it falls apart.

As strongpoint posted:




"In recent years it has been suggested that the Second Amendment protects the "collective" right of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."

-- Stephen P. Halbrook
That Every Man Be Armed: The Evolution of a Constitutional Right 83 (1984)




I believe that quote can also be found in the Parker decision.

dwtt
09-06-2011, 5:10 AM
I get massively flamed every time I bring this up, but the truth is the truth....let me start by says I'm as ardent a true believer to our cause as anyone on this board.


That said, I've studied enough historical/original documents (federalist/anti federalist papers, letters, etc.) to believe the framers had militia in mind when constructing the 2a....BUT where people, including a lot on this board miss the boat is, the militia is made up of individuals.



you're off on this one. A lot of us stayed awake during history class and learned that when the Massachusetts Militia rallied at Concord after being alerted by Paul Revere's famous ride, the militia was made up of ordinary farmers and citizens who picked up their arms to defend their armory against the British. You're just restating the obvious and trying to sound smart, but more power to you. :)

CDFingers
09-06-2011, 5:10 AM
From the interesting article:

Quote from near the conclusion:

>The 9th Circuit observed: “Besides the Fourth Amendment, the name of ‘the people’ is specifically invoked in the First, Second, Ninth, and 10th amendments. Presumably, ‘the people’ identified in each amendment is coextensive with ‘the people’ cited in the other amendments. No contrary indication appears in either the text or history of the Constitution.” [856 F.2d 1214, 1239.]

>So if “the right of the people” protects a personal right to assemble (First Amendment) and a personal right to freedom from unreasonable search and seizure (Fourth Amendment), then “the right of the people” in the Second Amendment must also protect a personal right.

CDFingers

CalBear
09-06-2011, 7:21 AM
The militia was obviously a primary concern when enacting the second amendment, because the militia was one the newest / most important concepts to the founders at the time of the Constitution. When you have a key message to convey (militias are important to our defense), it makes sense that you will make mention of it in a preamble to a right. The preamble basically just gives some explanation of a key motivation for the right that follows.

To turn around and use the preamble to limit the right, especially when other sections of the Constitution deal specifically with State / Congressional powers over the militia is ... special indeed. The 2A is unique in the minds of manipulative academics in that it is the ONLY part of the Bill of Rights that conveys and protects the state's power over the people, rather than protecting a right of the people from the state. They are completely wrong, but as is typical, they reach their conclusion first, and manipulate evidence to fit the conclusion.

Mulay El Raisuli
09-06-2011, 8:06 AM
"[To deny that the right protected is one enforceable by individuals] the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used "right of the people" in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment's "right of the people" had reverted to its normal individual right meaning; (4) "right of the people" was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished "the states" from "the people," although it had failed to do so in the second amendment."

-- B. Kates, Jr.
Handgun Prohibition and the Original Meaning of the Second Amendment
82 Mich. L. Rev. 204 (1983)


"In recent years it has been suggested that the Second Amendment protects the "collective" right of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."

-- Stephen P. Halbrook
That Every Man Be Armed: The Evolution of a Constitutional Right 83 (1984)



both are cited in

Glenn Harlan Reynolds
A Critical Guide to the Second Amendment (http://www.guncite.com/journals/reycrit.html)
62 Tenn. L. Rev. 461-511 (1995)

which is great.


Looks to be worth reading. Thank you.


The Raisuli

ALSystems
09-06-2011, 8:36 AM
Massachusetts Militia rallied at Concord after being alerted by Paul Revere's famous ride, the militia was made up of ordinary farmers and citizens who picked up their arms to defend their armory against the British. :)

The people of Massachusetts have changed a lot since Paul Revere's ride. Just look at their crazy :willy_nilly: gun laws. I can see where "collective right" view came from by looking at the wording of some state constitutions such as:

Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. Pt. 1, art. 17 (enacted 1780).

In fact this was interpreted as a collective right only in Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976).

At face value, the Massachusetts 2nd Amendment appears to be a collective right but that view is wrong!

nicki
09-06-2011, 9:56 AM
The second amendment is not a "collective right", rather it is a "collective responsibility" laid on all of us for "militia service".

The "Militia" was supposed to compose the bulk of our "national, state and local" defense in cases of invasion or even natural disaster.

We were not supposed to have a large "standing army".

So in order to be able to perform our "collective duties", we not only have a individual right, but really a duty to bear "militia grade" or "better" arms.

Nicki

Scarecrow Repair
09-06-2011, 11:29 AM
You're confusing "collective" right with a right of the state government.

I'm confusing nothing. The very idea that any amendment was needed to guarantee the government a "right" to protect itself from the public is ludicrous. The entire thrust of the first 8 amendments is to list specific examples of things the government could not do, to rein in the government. To believe otherwise is willful delusion.

Tarn_Helm
09-06-2011, 5:36 PM
I get massively flamed every time I bring this up, but the truth is the truth....let me start by says I'm as ardent a true believer to our cause as anyone on this board.


That said, I've studied enough historical/original documents (federalist/anti federalist papers, letters, etc.) to believe the framers had militia in mind when constructing the 2a....BUT where people, including a lot on this board miss the boat is, the militia is made up of individuals.

Back then, they believed that states where separate powerful independent governments. And people were to provide for the common defense. They the people would elect governments that best represented the will of the people they were governing. It was truly a government For, Of, and By the people (well a lot closer then we have now anyway)

People's rights to be armed came from the English Bill of Rights of 1689 undid the disarming of Protestants.

But also, each state and possibly city had their own firearms laws. Those laws include things like you MUST keep a weapon of specific specifications, "X" amount of ammo, "x" powder horns, and various other things like a bed roll, etc. They also provided for how many times a year you must present yourself on the practice field per year when called to muster.

The reason for these laws were you for expected (almost conscripted) to muster when called to arms...for the common defense...So owning a PERSONAL gun was needed (mandatory) for the collective welfare. In certain cases, as a able bodied male, you didn't have a choice, you were required by law to own one.

But going back to the original part of my post. since it was government of the PEOPLE, and your vote was actually supposed t mean something, you being armed and part of a militia that could change your government was a huge individual right, power and responsibility.

The right let you have arms to decide your destiny as long as that was also the will of the majority (revolution, insurrection, etc)

So in a absolute sense, it is both a individual and collective right at the same time.

I believe that's where most people go astray. Each side has their agenda and frames they're arguments to bolster there position. You'll never get a anti to say "yes" something as simple as "if you walked in and found your wife/mother/loved one being gang raped, would you rather have a gun or not"

Luckily for our side (the right side) it being a collective right is predicated on it being a individual right.

I believe this was the line of thought Scalia had in Heller when he broke rhe 2a wording down into clauses

Since prevailing usage implies that "individual" and "collective" are often taken to be mutually exclusive, I think you can articulate your point more precisely and not claim that it is both at the same time.

The right to bear arms was, in the minds of the Framers, an individual right conceptualized as right of armed self-defense for the sake of the individual himself as an individual per se, and also as a right of armed self-defense for the sake of the individual as a voluntary or conscripted member of a militia, whether an unorganized militia, selective militia, or as a member of our now de jure "standing army."

But it is not a concept with a "dual core"--it is a right that remains even if one only American is left alive.

In other words, even if there only existed one individual American, the right would not disappear simply because it is somehow co-dependent on the existence of an actual "collective" militia, in service of which his right would be exercised.

Nice argument, but I cannot agree for the reasons adumbrated above.

You might want to head over with this argument to this other Calguns thread: http://www.calguns.net/calgunforum/showthread.php?t=474927

sreiter
09-06-2011, 7:56 PM
you're off on this one. A lot of us stayed awake during history class and learned that when the Massachusetts Militia rallied at Concord after being alerted by Paul Revere's famous ride, the militia was made up of ordinary farmers and citizens who picked up their arms to defend their armory against the British. You're just restating the obvious and trying to sound smart, but more power to you.

Cool, you get it. I wasn't "trying to sound smarter" then anyone. I put forth the exact same argument before, and was flamed for 10-20 pages, including by some of the folks you'd think would see this argument just as obviously as you.

Their argument put to me was "personal right ONLY" collective didn't factor in at all.

I'm glad you agree that the 2a was meant as collective, made up of individuals who had to have the right first, if the collective was to have the right at all.

Stated plainly, Their could be no collective right, without individual right, but not intended the other way around.

adriantimatter
09-06-2011, 8:32 PM
To take part in an argument, you must agree to the same rules and definitions of words and phrases. So I must ask, what is a collective right? Whenever I here a progressive use the term, they usually mean that just because you can't own a firearm, your 2nd amendment right isn't being violated, because other people can still own them. So please, for the sake of argument, what is a "Collective Right?"

sreiter
09-06-2011, 8:36 PM
Since prevailing usage implies that "individual" and "collective" are often taken to be mutually exclusive, I think you can articulate your point more precisely and not claim that it is both at the same time.

The right to bear arms was, in the minds of the Framers, an individual right conceptualized as right of armed self-defense for the sake of the individual himself as an individual per se, and also as a right of armed self-defense for the sake of the individual as a voluntary or conscripted member of a militia, whether an unorganized militia, selective militia, or as a member of our now de jure "standing army."

But it is not a concept with a "dual core"--it is a right that remains even if one only American is left alive.

In other words, even if there only existed one individual American, the right would not disappear simply because it is somehow co-dependent on the existence of an actual "collective" militia, in service of which his right would be exercised.

Nice argument, but I cannot agree for the reasons adumbrated above.

You might want to head over with this argument to this other Calguns thread: http://www.calguns.net/calgunforum/showthread.php?t=474927

I have a few small disagreements with your rational/argument.

I [incorrectly] used the word collective because the OP used the term specifically. Of course the militia could be one man, even if everyone was not dead, or it could be the very last man alive defending the country.

Where "collective" come in is "To provide for the common defense".

Remember, we had no, nor did the constitution allow for, any standing army. Therefore, the one way "WE The People" could provide for the [collective] common defense, was to have a individuals who were not professional soldiers in a professional army do it, with their personally owned, and trained with weapons.

Again, the right for sure a individuals right, just as it was in 1689's England (giving the same right to protestants, as everyone one), but as important, if not more so, was No man be denied the RKBA, least we be denied a fighting force to repel invaders domestic or abroad

If the framers simply wanted it to be ONLY a individual right, and for no other purpose, they would have copied English law verbatim, as they did in other cases, as well as from other sources.

The English Bill of rights on RKBA:
That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law

Since the framer used this law as a starting point, they included the militia clause for a reason. That is to say, my reasons listed above (IMHO).

I further maintain the duality of the amendment has been obfuscated by the polarizing actors in the 2a fight.

Because the anti's are staunch in their position to rid the world of guns, they want to grasp at any straw to bolster their side. That being "Look!!! Right there the word MILITIA!!!. That HAS to mean the framers only wanted militiamen to have guns, and only muskets at that!!!!"

Our side had no choice but to be a equally vehement with our "Militia nothing. LOOK RIGHT THERE "THE RIGHT OF THE PEOPLE"!!! Thats us, individuals!!! What part of not infringing on PEOPLE's rights don't you get!!!!" to counter their lunacy.

As stated, the framers weren't dumb. Actually, I think they could rival some of the greatest thinkers of ancient Greece. They had 2 clauses set forth for a reason, or why put them both in if each didn't stand equal weight and serve its purpose?

sreiter
09-06-2011, 9:07 PM
To take part in an argument, you must agree to the same rules and definitions of words and phrases. So I must ask, what is a collective right? Whenever I here a progressive use the term, they usually mean that just because you can't own a firearm, your 2nd amendment right isn't being violated, because other people can still own them. So please, for the sake of argument, what is a "Collective Right?"

LOL - sorry, this make me think of the idiot descent in McDonald (maybe Heller now I forgot which) where the judge goes "You can't have a the right to assembly without a group of people (a collective right as opposed to individuals). That judge would argue collect right is something only a GROUP of people have, and you couldn't have it alone.

I guess that's as good a definition as any, as absurd a proposition as it may be.

i could get a demonstration permit allowing for lawful assembly, and no one but me show...I can still tilt at windmills all day - megaphone in hand, only the breeze and the tree's to hear me.