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View Full Version : The Big Elephant in the Room - 2A for Protection Against Tyranny


mikestesting
12-12-2012, 9:20 AM
Disclaimer: I am not a legal expert and make no claim to be.

I've been getting into 2A politics pretty heavily and have been doing some browsing over the last few months of the cases here in CA and at the national level (hooray for Illinois!) and I've noticed that all of the counsel on our side argue the 2A for self-protection against thugs and rapists. Even the recent Illinois 7th Circuit case had the majority specifically mention thugs on the street.

It is my personal belief that the single biggest reason for the 2A was for The People to have protection and an insurance policy against a future tyrannical government. I believe the 2A gives us the right to bear arms, with the specific intent to use those arms against a future corrupt government, foreign or domestic. I don't think this is just my own belief, but a common view shared and repeated amongst American historians.

So this leads to my question: Why is this never brought up in court? It seems to be the one thing that the 2A was intended for, but no one wants to talk about it. Would bringing this reason up make pro-2Aers seem loony and crazy? Would it make us seem like traitors?

I really don't get it. Americans are supposed to be patriots, freedom lovers, and against tyranny. Can someone please explain to me why no one talks about the big elephant in the room, from a legal perspective?

Mitch
12-12-2012, 9:28 AM
I really don't get it. Americans are supposed to be patriots, freedom lovers, and against tyranny. Can someone please explain to me why no one talks about the big elephant in the room, from a legal perspective?

Because:

1) No one wants to stand before a judge and demand relief for his client who is arming himself to prepare for violent revolution against the government of the United States; and

2) Such an interpretation of the 2nd Amendment (which is not invalid, from an historical standpoint) would instantly strike any laws that prohibited law abiding Americans from possessing any military weapons they chose to possess. No matter what the Founders thought (and in their day Americans could lawfully possess cannon, the most fearsome of contemporary weapons), legal decisions are not issued in a social vacuum, and to a great extent will reflect contemporary ambient cultural values. Today almost no one is interested in allowing Larry Ellison to buy a fully-armed F/A-18 Hornet.

NotEnufGarage
12-12-2012, 9:35 AM
The problem with that line of argument is who gets to say when it's allowable to implement that usage of the 2nd Amendment.

Some might argue that Lee Harvey Oswald was heading off a tyrannical situation by assassinating JFK. The line of thinking being that even with the 22nd Amendment, we might end up with 24 years of Kennedy rule from the White House (8 for JFK, 8 for RFK and 8 for Teddy) and that would amount to something akin to a royal family. Who knows what Kennedy's might've come along after that to assume the office with little or no political competition?

I'm not saying I approve or disapprove of this approach, but it is what it is...

Making this kind of argument in court is probably self-defeating. What judge will buy into and sanction the possible destruction of the institutions he/she holds sacred by force? It'd be similar to getting the Congresscritters in DC to implement term limits.

JJE
12-12-2012, 10:03 AM
Judge Kozinski spelled that argument out in his dissent in Silveira v Lockyer (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CDEQFjAA&url=http%3A%2F%2Fnotabug.com%2Fkozinski%2Fsilveira _v_lockyer&ei=L9HIUI7aMOfziQKsj4CQDQ&usg=AFQjCNH04blxI1elwTxsZfeIrJJ4ndp7BQ&bvm=bv.1355272958,d.cGE):

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

Jazeronthelaser
12-12-2012, 10:17 AM
Judge Kozinski spelled that argument out in his dissent in Silveira v Lockyer (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CDEQFjAA&url=http%3A%2F%2Fnotabug.com%2Fkozinski%2Fsilveira _v_lockyer&ei=L9HIUI7aMOfziQKsj4CQDQ&usg=AFQjCNH04blxI1elwTxsZfeIrJJ4ndp7BQ&bvm=bv.1355272958,d.cGE):

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

That's a great quote!!

winnre
12-12-2012, 10:21 AM
Some might argue that Lee Harvey Oswald was heading off a tyrannical situation by assassinating JFK.

Don't forget about Lincoln, it was not just him, there were supposed to be plenty of people killed that evening in one large coupe!

FastFinger
12-12-2012, 10:24 AM
Judge Kozinski spelled that argument out in his dissent in Silveira v Lockyer (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CDEQFjAA&url=http%3A%2F%2Fnotabug.com%2Fkozinski%2Fsilveira _v_lockyer&ei=L9HIUI7aMOfziQKsj4CQDQ&usg=AFQjCNH04blxI1elwTxsZfeIrJJ4ndp7BQ&bvm=bv.1355272958,d.cGE):

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

That is a fantastic quote. Thanks for posting it!

paul0660
12-12-2012, 10:25 AM
one large coupe!

https://encrypted-tbn2.gstatic.com/images?q=tbn:ANd9GcS7IDZD4nYaA2vxh6SWiBtfj88owruMr a6-JOz8aok7b8SPxmLvAg

zhyla
12-12-2012, 10:38 AM
It seems to be the one thing that the 2A was intended for, but no one wants to talk about it. Would bringing this reason up make pro-2Aers seem loony and crazy?

Yes.

If you don't understand this then you probably seem loony and crazy to non-gun people. Part of life is not saying things that you know won't be effective.

ElvenSoul
12-12-2012, 10:55 AM
Are people unhappy with Obama? Something must be wrong with them?

SilverTauron
12-12-2012, 11:04 AM
So this leads to my question: Why is this never brought up in court? It seems to be the one thing that the 2A was intended for, but no one wants to talk about it. Would bringing this reason up make pro-2Aers seem loony and crazy? Would it make us seem like traitors?

I really don't get it. Americans are supposed to be patriots, freedom lovers, and against tyranny. Can someone please explain to me why no one talks about the big elephant in the room, from a legal perspective?

Because Americans of Olde loved patriotism, this nation, and all it stands for. Today the modern generation of Americans don't know what true freedom is and believe in some places that liberty should be outlawed. Tyranny? Remember that Hitler was lawfully elected to his office.

Given that social situation today, its very hard for a lawyer to argue in front of a judge that the 2nd Amendment guards freedom when 90% of people have no idea what that actually is, including the judicial bench. Crime protection and self defense is a concept everyone from New York to Montana can identify with, but freedom? Defending Liberty? Overthrowing a lawfully elected government? Such is the talk of crazies!

The very ugly choice we may face in our lifetimes is overthrowing a corrupt government lawfully and willfully elected by our deluded neighbors, or following a corrupt regime that has public backing. Such is beyond the scope of this post, but that's why the "liberty's fail safe" argument isn't heard in court.

Kestryll
12-12-2012, 11:08 AM
The Big Elephant in the Room

Damn.

I thought this was going to be a thread about me...

YubaRiver
12-12-2012, 11:37 AM
The Scot's were disarmed by the English. As such they weren't able to defend
themselves on even an individual scale against the brutality of local English forces.
This experience was a big part of Scottish Americans supporting the second amendment.
And there were a bunch of Scottish founding fathers.
A total overthrow of a government was not the only reason
citizens were to be armed, but the protection of the region or individual.

In other words, the right of citizens to bear arms was for the protection of all
along a contiuum from individual through community up to nation.

vantec08
12-12-2012, 11:50 AM
Indeed, Yuba. In fact, the wearing of the kilt or playing the pipes was an executable offense on its face. Disarming them made hunting them down and executing them so much safer for the Parliamentary Army. As Judge Kozinski said, "where all other rights have failed." We are approaching that with politicians, the media, political parties, and even some of the judiciary.

Decoligny
12-12-2012, 12:10 PM
Because:

1) No one wants to stand before a judge and demand relief for his client who is arming himself to prepare for violent revolution against the government of the United States; and

2) Such an interpretation of the 2nd Amendment (which is not invalid, from an historical standpoint) would instantly strike any laws that prohibited law abiding Americans from possessing any military weapons they chose to possess. No matter what the Founders thought (and in their day Americans could lawfully possess cannon, the most fearsome of contemporary weapons), legal decisions are not issued in a social vacuum, and to a great extent will reflect contemporary ambient cultural values. Today almost no one is interested in allowing Larry Ellison to buy a fully-armed F/A-18 Hornet.

The private citizen of the time, if he could afford it could own a warship. Imagine having the ability to move over great distances with 20 or 40 cannon. You could literally sail into a harbor and lay seige to a port.

During the war of 1812, many civilians recieved "Letters of Marque" which allowed them to use their private warships to capture enemy merchant vessels and take the vessel and the cargo as a prize, with the Gov't getting a percentage.

steve91104
12-12-2012, 12:12 PM
"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

:King:

bwiese
12-12-2012, 12:15 PM
Damn.

I thought this was going to be a thread about me...


No, me.

Remember they use 6 or 7 of me to load test elevators.

Uxi
12-12-2012, 12:53 PM
It's ultimately the logical conclusion of the self defense argument more than proactively overthrowing the government, which is a couple steps beyond simply extended the self defense to the likes of no-knock warrants.

mikestesting
12-12-2012, 1:44 PM
Now serious: Address a federal judge in his courtroom sometime, and tell him: "Your honor, I need the right to keep and bear arms, so in case I disagree with the US government, I can start an armed insurrection and overthrow it, including the judicial branch. Since you happen to be conveniently close to me, let's start with you. Could you please put on this T-shirt with concentric circles, to make it easier to aim?"

How do you think this will fly? Like a lead ballon.

You say 'serious', but come back with an answer that isn't serious. Back during the framing of our rights, the right to free speech to say whatever you wanted to, to speak out against anyone with privileged power was a revolutionary new right to come into this world. This was a shockingly new concept to be given to the general public.

In Libya and Syria and middle eastern countries that are experiencing democracy for the first time, they still don't quite understand the concept of free speech. The new governments still aren't taking well to the citizens speaking out.

If free speech could be such a terrible and new idea, but still given merit and taken for granted in this country, then why cannot the big elephant in Second Amendment room be recognized?

No one in their right mind is saying 'I'm going to kill you judge' nor would anyone say that in court. Why can't our court system legitimize the need that our Framers gave us to own weapons to overthrow a future tyrannical government?

It's not supposed to matter to the courts if the idea is crazy sounding. Like I said, the 1st Amendment was crazy at the time but the courts still upheld/uphold it. The courts are supposed to hold up what the Constitution gives us, regardless of if it's crazy or sane.

It's still the big elephant in the room. We know it's there, we know where it came from, but no one in the legal system wants to talk about it.

nicki
12-12-2012, 1:47 PM
The second amendment will never be interpreted as protecting our right to overthrow a legitimate government.

Now, if the control of our government was seized by tyrants and all peaceable means to restore a legitimate and just government failed and the now criminal government was operating outside of their constitutional oaths and destroying the very rights they were supposed to protect, then we the people would not only have the right, but duty to do whatever is necessary to restore a legitimate government.

The 2nd amendment does not give us the right to stage an armed rebellion against our government, but one could argue that the 2nd amendment imposes a duty on all of us to take up arms to put down rebellions against our system of ordered liberty from all enemies, including rebellious government officials who are in open rebellion against the people.

The reason no intelligent people are pursuing any second amendment cases on this issue at this time is the under lying issues are far deeper than gun rights, the real issue is the whole concept of our government deriving t's power from the people and actually operating under the premise of consent of the governed.

IMHO, we are at least 5 years out from even starting such litigation and it is my hope some one doesn't jump the gun and set us back 20 plus years.

We not only have to win in the court of law, but the court of public opinion so that if such a case ever gets to the SCOTUS, it will be a non issue.


Nicki

Dantedamean
12-12-2012, 1:47 PM
Judge Kozinski spelled that argument out in his dissent in Silveira v Lockyer (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CDEQFjAA&url=http%3A%2F%2Fnotabug.com%2Fkozinski%2Fsilveira _v_lockyer&ei=L9HIUI7aMOfziQKsj4CQDQ&usg=AFQjCNH04blxI1elwTxsZfeIrJJ4ndp7BQ&bvm=bv.1355272958,d.cGE):

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."

A very good quote.

Hopalong
12-12-2012, 1:52 PM
Don't be ridiculous

Only the paranoid would think that about the government. :shifty:

Untamed1972
12-12-2012, 1:53 PM
If you think about it.....it's gonna a tough arguement to make when you're addressing a branch of the very Gov't you're saying you might need to overthrow.

But I can see it being brought up in cases dealing with "assault weapons" that part of what the 2A protects is the right to modern military style arms for the purpose of defending the nation in case of foreign invasion. Foreign invaders could be intent on tyranny could they not? So you get to make your point without pointing the finger (or the gun) at OUR Gov't.

Kinda one of those "you catch more flies with honey" kinda thing. Make it sound good.....that your desire is to PROTECT your nation, not OVERTHROW your Gov't.

SilverTauron
12-12-2012, 2:00 PM
You say 'serious', but come back with an answer that isn't serious. Back during the framing of our rights, the right to free speech to say whatever you wanted to, to speak out against anyone with privileged power was a revolutionary new right to come into this world. This was a shockingly new concept to be given to the general public.
No kidding. The most common form of government across the world today and over history's long stretch has been some form of autocracy-which is suspiciously similar to the simian social structure of primates. One could say that tyranny is instinctual.


If free speech could be such a terrible and new idea, but still given merit and taken for granted in this country, then why cannot the big elephant in Second Amendment room be recognized?

Because the entire Bill of Rights,including the 2nd and 1st Amendments, is under assault by our modern politically correct society.

Don't believe me?

As to the 1st Amendment, we may not be at the point of issuing permits to read a book-yet- but try calling a fat person fat sometime and see what happens. Walk up to a nice girl and pay her a compliment, and you could talk yourself into a sexual harassment charge.

10th Amendment? Eh whatever, the Federal Government has to keep us safe by any means necessary.

2nd Amendment? Who needs a gun? Cops and military need them to catch and shoot bad guys, but the rest of the proles don't need em.

4th Amendment? Get pulled over in CA with a cased gun and try telling the cop he needs a warrant to check if its unloaded. See also NYPD's "stop and frisk".

Out of all of the amendments, only the 5th seems to gain any respect in the modern legal establishment. The rest of the USC is considered birdcage liner by most of our government, including the judiciary.

POLICESTATE
12-12-2012, 2:05 PM
I might not be an elephant, but it seems I'm always cleaning up after them! :rolleyes:


Okay so as to tyranny and 2A, yeah it's in there for that, among other things. The extraCOTUS writings of our founding fathers and their contemporaries are more than clear on this.

The issue as I see it however: people think that just assembling with their guns in opposition to tyranny is somehow going to make it go away. It's won't. That's just silly. A tyranny will seek to preserve its position and it will brand the people who oppose it as traitors/terrorists/criminals/rebels/enemies and will at first imprison them. If that doesn't work it will simply start killing them.

Read your history. Standing up to tyranny is never pretty, there is nothing romantic about it.

Squid
12-12-2012, 2:23 PM
I feel need to point out that Hitler greatly freed up gun ownership in 1938.

Even if Hilter passed laws against Jews owning guns, (unless they had a reason, like transporting valuables), since general ownership was so free and who was or wasn't Jewish was grey, anyone, including a Jew, would have no trouble getting any guns they wished, either officially or through "strawman" or "2nd hand" un-reported PPT, or just stealing off a drunk German, since so many would have guns for the taking.

It was the Communists who disarmed everybody, then killed them as well as destroyed their "ethnic identity". IIRC, the mere presence of a unauthorized gun would be plenty to 'convict' everyone in the area, including any friends, etc. So you weren't going to have guns around at all, any more than than would have a mortar or something in the USA.

If you don't like Nazi Germany you should say "Nazi Germany is what can happen even if civilians have unlimited access to pistols, rifles and shotguns, and where explosives are loosely regulated."

PS-I believe even The 5th is basically worthless because you be compelled to testify and maybe THAT court of DA can't get you but that in no way protects you from other courts or Feds with "dual sovereignty".

1st also worthless, only limits CONGRESS, not Commissioner Boss Hogg of Hazard County. You either got Freedom of Speech or you don't. We don't.

POLICESTATE
12-12-2012, 2:28 PM
I feel need to point out that Hitler greatly freed up gun ownership in 1938.

Even if Hilter passed laws against Jews owning guns, (unless they had a reason, like transporting valuables), since general ownership was so free and who was or wasn't Jewish was grey, anyone, including a Jew, would have no trouble getting any guns they wished, either officially or through "strawman" or "2nd hand" un-reported PPT, or just stealing off a drunk German, since so many would have guns for the taking.

It was the Communists who disarmed everybody, then killed them as well as destroyed their "ethnic identity". IIRC, the mere presence of a unauthorized gun would be plenty to 'convict' everyone in the area, including any friends, etc. So you weren't going to have guns around at all, any more than than would have a mortar or something in the USA.

In the Nazi's vision there was only going to be "perfect" people living in society in the end. Of course these folks could be trusted with guns, they are all of one accord.

The communists on the other hand didn't trust anybody, not even each other. Especially each other. Just ask Comrades Lenin, Stalin, and Trotsky.

paul0660
12-12-2012, 2:29 PM
I thought this was going to be a thread about me...

It is just as I suspected............damn.



pRf_A07Elyw

paul0660
12-12-2012, 2:32 PM
I feel need to point out that Hitler greatly freed up gun ownership in 1938.

Never heard of that. And, if so, did he do it in fact? Most importantly........source?

htjyang
12-12-2012, 2:40 PM
It's time to put this myth to rest. The fact of the matter is that the insurrectionist rationale is frequently brought up in court. Even leaving aside Judge Kozinski's dissent, the merit brief for DC v. Heller specifically stated:

But as expressed in the Declaration, the Framers saw no tension between accepting the lawful authority of an imperfect and even frequently unjust government, while retaining the ability to resist tyranny.

.....

And should our Nation someday suffer tyranny again, preservation of the right to keep and bear arms would enhance the people’s ability to act as militia in the manner practiced by the Framers.

The majority opinion in Heller specifically referred to the anti-tyranny rationale:

Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

.....

If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment ’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny.

The majority also referred to the Tennessee Supreme court's Aymette decision in 1840:

The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny.

I'm not entirely sure what more is needed. It seems to me that too many people either don't even bother with reading Heller or harbor some bizarre desire to have somebody go to court, take off his shirt, wave a machine gun in the judge's face and scream: "Anti-tyranny, b*tch*s!!!" I'm not at all convinced that's helpful to anyone except the Bradyites.

POLICESTATE
12-12-2012, 2:42 PM
The punchline in the end is to DIE FOR :D

V5-fr33RQ6s

Squid
12-12-2012, 2:43 PM
I'm pretty sure the Nazis were aware that even if the "Volk" were "the best" people, they weren't exactly a bunch of Stepford Wives, and part of "unifying" was bringing in wide range of people who spoke some form of German, but had considerable cultural differences.

Lets remember that Germany wasn't even "Germany" until very recently, and the states, with their strongly held identities, had been in "Hot Wars" fairly recently.

It is quite striking that the Nazis, who never even got a majority vote support, where freeing up gun laws radically just 5 years after wiggling into power, with several powerful entities(old Army, royality, Commies, etc) certainly 'threats' to unseat them.

Imagine Communists letting folks buy any guns they wanted while support for the Communists was still lukewarm.


I don't think "gun rights" will be successful until you use the factual "Communist" example, not the incorrect "Nazi" one.

paul0660
12-12-2012, 2:52 PM
The punchline in the end is to DIE FOR

Yes, it was. I owe YOU an adult beverage.

Dreaded Claymore
12-12-2012, 3:03 PM
The argument that firearms are useful as a last resort against tyranny is, in my opinion, a sound one, with two important provisos.

Number one: It's an extra-governmental argument. It's an argument about defying and disobeying government. A court is a governmental institution, and for a court to work, its rulings must be obeyed. So, if you go into court and make a case for the "final argument of Liberty," you're asking for the court (the government) to be obeyed about being disobeyed. A paradox. The argument that we have firearms as a last resort against tyranny is fundamentally incompatible with the court system because if you ever had to disobey the government, you'd be disobeying the court system.

Number two: Most people, unlike most of the people in this thread, do not understand Whig ideology. If you bring up using guns to resist governmental tyranny in casual conversation, you will appear crazy and dangerous. I can't stress this enough.

So this leads to my question: Why is this never brought up in court? It seems to be the one thing that the 2A was intended for, but no one wants to talk about it. Would bringing this reason up make pro-2Aers seem loony and crazy? Would it make us seem like traitors?
YES. It would.

Edit: Actually I just read Htjyang's post, above mine, and it refutes my post pretty well:
It's time to put this myth to rest. The fact of the matter is that the insurrectionist rationale is frequently brought up in court...

speedrrracer
12-12-2012, 3:35 PM
Why can't our court system legitimize the need that our Framers gave us to own weapons to overthrow a future tyrannical government?


First, it's a moot point (I'm like you -- no legal knowledge whatsoever, so maybe that's a misuse of the term, but you know what I mean). SCOTUS has said the core of the right is self-defense, and so that's what it is. The High Priests have interpreted the Holy Words, so we're stuck with it.

Having said that, self-defense is a pretty broad umbrella, esp if a tyrannical government really exists. Shouldn't be hard to claim self-defense if they're throwing people into ovens in concentration camps, right?

Second, it's kinda pointless.
Scenario 1: Imagine the government has become tyrannical. They're throwing people into ovens. Now imagine it's also part of the core of the 2nd that you can overthrow tyrannical govts.

Scenario 2: Imagine the government has become tyrannical. They're throwing people into ovens. Now imagine it's NOT part of the core of the 2nd that you can overthrow tyrannical govts.

What exactly about anyone's behavior will change between scenario 1 & 2?

The answer is nothing. Does anyone actually think the military or LE will stand by and say, "Sorry they're throwing your wife into the oven, but defense against tyrants wasn't in the SCOTUS decision..."

mikestesting
12-12-2012, 3:41 PM
The punchline in the end is to DIE FOR :D


Yeah, that was pretty awesome.

SilverTauron
12-12-2012, 4:03 PM
I feel need to point out that Hitler greatly freed up gun ownership in 1938.

In irrelevant factoid.

I mentioned Nazi-ism because many are not aware of the dark sides of the Democratic process. When The People select ethical candidates life goes on as it should, but what happens when a traitorous snake runs for office and he wins the Majority Vote?

Picture a situation where an Islamic candidate who backs Sharia law and wants to burn the Constitution runs for office in America and legally wins the popular AND the Electoral College vote. Now what? Do you repudiate the will of the people and revolt against an illegal government, or do you recognize the will of the people above the law?

I sense its a dilemma we'll get to see in the very near future.

Spyder
12-12-2012, 6:27 PM
Damn.

I thought this was going to be a thread about me...


If you start walking around with your pants pockets inside out and your zipper down, I'M LEAVING. :D

MOA1
12-12-2012, 6:34 PM
If the SCOTUS was asked, would they say they are not part of anything associated with tyranny? At that point they would have to prove they are not.

If they could not do that then they would be guilty by association. And thus not protected by the laws they approve.

JMO. No axe to grind here. :D

Lone_Gunman
12-12-2012, 9:15 PM
We all know it, it's one of the major reasons we fight so hard to keep the right. They all know it, it's one of the major reasons they fight so hard to disarm us.

CDFingers
12-13-2012, 5:00 AM
The question behind the OP is a good one.

I think the answer for me will be found in a few definitions.

What is a "Secure State?" What means "state," and what means "secure," As in, "being necessary for the security of a free state..." Is this a state, as in "the several states," or is it a nation state, as in the USA? Is this security inside one's home, inside one's town, inside one of the several states, and secure inside the USA against outside aggression?

Yes, I think so.

Is a state secure when its people feel secure? Does this security stem from one's right to be secure in one's person, papers, and effects, alone, or is it a wider sense of security? Does this security stem from being secure against outside invasion? Does this security stem from the ability to defend self, home, town, region? Does this defense have many components, including weapons?

Yes, I think so.

These are good questions to ponder about the 2A, about security, and about our place in the world. That was a provocative OP for me.

CDFingers

Mitch
12-13-2012, 7:17 AM
Picture a situation where an Islamic candidate who backs Sharia law and wants to burn the Constitution runs for office in America and legally wins the popular AND the Electoral College vote. Now what? Do you repudiate the will of the people and revolt against an illegal government, or do you recognize the will of the people above the law?

I sense its a dilemma we'll get to see in the very near future.

We've already been there.

Picture a situation where a religious fundamentalist candidate is elected (with a disputed Electoral College count) who repudiates habeas corpus (http://www.cato.org/new/06-02/06-20-02r.html) and admits to illegally wiretapping American citizens (http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=print), among other civil rights transgressions. Imagine him not only being re-elected, but also being wildly supported by those Americans who claim they are most concerned with 2nd Amendment rights.

The fact is, when you dress up tyranny with appealing rhetoric (waving the flag a lot helps, as does frequent allusions to the bogeyman de jour), the guys with the guns, the very people the Founders relied on to oppose tyranny, will enthusiastically embrace it.

A very good read on this subject is Sinclair Lewis' chilling novel It Can't Happen Here, which, while not his best work, offers a step by step timeline of how tyranny can gain a foothold in a formerly free society with the zealous support of the People. Buy a copy today from Shop42a.com (http://www.shop42a.com).

Wherryj
12-13-2012, 10:29 AM
Because:

1) No one wants to stand before a judge and demand relief for his client who is arming himself to prepare for violent revolution against the government of the United States; and

2) Such an interpretation of the 2nd Amendment (which is not invalid, from an historical standpoint) would instantly strike any laws that prohibited law abiding Americans from possessing any military weapons they chose to possess. No matter what the Founders thought (and in their day Americans could lawfully possess cannon, the most fearsome of contemporary weapons), legal decisions are not issued in a social vacuum, and to a great extent will reflect contemporary ambient cultural values. Today almost no one is interested in allowing Larry Ellison to buy a fully-armed F/A-18 Hornet.

I'd be interested in allowing it. He'd probably fly himself straight into the nearest mountain and solve any controversy in the most prompt manner possible.

Aside from that, any crazy person who had one F/A 18 and got 'squirrelly' with it would be met by at least several other members of our armed forces who actually know how to use their F/A 18s.

Wherryj
12-13-2012, 10:31 AM
We've already been there.

Picture a situation where a religious fundamentalist candidate is elected (with a disputed Electoral College count) who repudiates habeas corpus (http://www.cato.org/new/06-02/06-20-02r.html) and admits to illegally wiretapping American citizens (http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=print), among other civil rights transgressions. Imagine him not only being re-elected, but also being wildly supported by those Americans who claim they are most concerned with 2nd Amendment rights.

The fact is, when you dress up tyranny with appealing rhetoric (waving the flag a lot helps, as does frequent allusions to the bogeyman de jour), the guys with the guns, the very people the Founders relied on to oppose tyranny, will enthusiastically embrace it.

A very good read on this subject is Sinclair Lewis' chilling novel It Can't Happen Here, which, while not his best work, offers a step by step timeline of how tyranny can gain a foothold in a formerly free society with the zealous support of the People. Buy a copy today from Shop42a.com (http://www.shop42a.com).

Unfortunately, aside from the "disputed electoral count" and "re-elected", you've pretty much described EVERY politician and president we've had for the last 50 years.

ap3572001
12-13-2012, 10:42 AM
To me and most people in my circles , 2A is about peoples ability to carry loaded handguns (CCW) for protection against violent criminals

CBruce
12-13-2012, 12:03 PM
The Scot's were disarmed by the English. As such they weren't able to defend
themselves on even an individual scale against the brutality of local English forces.
This experience was a big part of Scottish Americans supporting the second amendment.
And there were a bunch of Scottish founding fathers.
A total overthrow of a government was not the only reason
citizens were to be armed, but the protection of the region or individual.

In other words, the right of citizens to bear arms was for the protection of all
along a contiuum from individual through community up to nation.

It's my belief that a well-armed citizenship serves as a big detterent to prevent a government from using force against it's people in the first place.

A democratically-elected government needs to know that the citizens that they represent hold the true power in society. And in this world, true power ultimately boils down to force of arms. Strip away all laws, all money, all political influence and it's simply who has the ability to force other people to do what they want.

kcbrown
12-13-2012, 12:46 PM
The majority opinion in Heller specifically referred to the anti-tyranny rationale:


Yes, it did. And yet, that very same majority opinion talks about lawful prohibitions of "dangerous and unusual" weapons, which are precisely the weapons that would be needed to successfully resist tyranny:


Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”





I'm not entirely sure what more is needed. It seems to me that too many people either don't even bother with reading Heller or harbor some bizarre desire to have somebody go to court, take off his shirt, wave a machine gun in the judge's face and scream: "Anti-tyranny, b*tch*s!!!" I'm not at all convinced that's helpful to anyone except the Bradyites.

What more is needed is clear: 2nd Amendment protection of all weapons that would be needed to successfully resist a tyrannical government that is as powerful and well-armed as the U.S. government is.

And that is something we will never get from the judiciary, because the judiciary will never come to believe that the very government it is a part of could possibly become the enemy of the people. The judiciary itself believes itself to be the very mechanism that would prevent such a thing from happening, after all. Nobody ever believes themselves, whether individually or as a group, to be capable of becoming the very thing they abhor, but history is replete with such occurrences.


It should not be lost on you that many of the very things that were, in the past, called tinfoil hattery, have nevertheless come to pass.

frankm
12-13-2012, 2:14 PM
It is my belief that the RKBA is indeed an individual right and cannot be superseded by law. I don't mind complying with reasonable laws, but if there comes a time when we can't own weapons legally or the laws are so cumbersome to effectively disarm us, then it is our duty as Americans to become armed anyway and damn the torpedoes.

htjyang
12-13-2012, 3:06 PM
Yes, it did. And yet, that very same majority opinion talks about lawful prohibitions of "dangerous and unusual" weapons, which are precisely the weapons that would be needed to successfully resist tyranny:

What more is needed is clear: 2nd Amendment protection of all weapons that would be needed to successfully resist a tyrannical government that is as powerful and well-armed as the U.S. government is.

And that is something we will never get from the judiciary, because the judiciary will never come to believe that the very government it is a part of could possibly become the enemy of the people. The judiciary itself believes itself to be the very mechanism that would prevent such a thing from happening, after all. Nobody ever believes themselves, whether individually or as a group, to be capable of becoming the very thing they abhor, but history is replete with such occurrences.

It should not be lost on you that many of the very things that were, in the past, called tinfoil hattery, have nevertheless come to pass.

I partially concur and partially dissent.... ;)

First, Judge Kozinski's dissent clearly contemplated the possibility that courts may lose "the courage to oppose, or can find no one to enforce their decrees...." I'd like to think that he's not the only one who considered that possibility.

But talking about judicial protection for arms to be used in an insurrection is rather silly not just because of the judiciary's inherent conflict of interest but because of the nature of the event itself. In such a situation, the potential insurrectionists are not going to have their choice of arms decided by a court. I'm sure they'll come up with their own whether there is judicial sanction or not.

Finally, "dangerous and unusual" is a highly elastic term. The Heller majority certainly has not yet found a single weapon that fits that criteria nor is it clear that they will ever be able to do so. There's no shortage of people on this forum alone who are capable of calmly and rationally explaining to the learned justices of the court how every weapon under the sun is neither dangerous nor unusual.... ;)

kcbrown
12-13-2012, 6:03 PM
I partially concur and partially dissent.... ;)


:D



First, Judge Kozinski's dissent clearly contemplated the possibility that courts may lose "the courage to oppose, or can find no one to enforce their decrees...." I'd like to think that he's not the only one who considered that possibility.


One would hope, but experience shows that Kozinski's realization (or frankness to admit the realization) is quite rare, for were it not so then the courts would have protected much more in the way of liberty than they have.



But talking about judicial protection for arms to be used in an insurrection is rather silly not just because of the judiciary's inherent conflict of interest but because of the nature of the event itself. In such a situation, the potential insurrectionists are not going to have their choice of arms decided by a court. I'm sure they'll come up with their own whether there is judicial sanction or not.


This is a big, big assumption.

The weapons needed to pull off a successful overthrow of tyranny aren't going to just magically appear out of thin air. They have to preexist in such a way that they are accessible to the citizenry at the time of insurrection. The 2nd Amendment is there to, among other things, ensure that the citizenry is able to keep such arms so that it can successfully deal with that very situation.

Otherwise, you may as well say that the framers were mistaken in their belief that a citizenry needs to remain armed in order to deal with the eventuality of tyranny, for a population that is armed lightly is going to be little more effective at throwing off a tyrannical government than is an entirely disarmed population.



Finally, "dangerous and unusual" is a highly elastic term. The Heller majority certainly has not yet found a single weapon that fits that criteria.


The Heller majority arguably has found a weapon that fits that criteria: the very weapon under contention in Miller.

But the words matter here. The "dangerous and unusual" term, which originates from a law prohibiting one from terrorizing the public with such a weapon, is what was used to justify the notion that the arms which are protected by the 2nd Amendment are those in common use.

And that's just scratching the surface. The "common use" test by its very nature sets in stone those arms which are protected: those currently in common use by the citizenry, or those arms that can come into common use as a result of not being banned sufficiently early or sufficiently widely.



nor is it clear that they will ever be able to do so. There's no shortage of people on this forum alone who are capable of calmly and rationally explaining to the learned justices of the court how every weapon under the sun is neither dangerous nor unusual.... ;)

Heh. The problem, of course, is dealing with the counterargument.

Regardless, the fact of the matter is that the Heller opinion itself makes it quite clear that the weaponry that would be needed to be protected for the citizenry to be able to defend itself from a tyrannical government as well-armed as the U.S. government is not protected by the 2nd Amendment according to Heller, in direct contravention to the purpose that was acknowledged in that very same decision.

htjyang
12-13-2012, 6:28 PM
This is a big, big assumption.

The weapons needed to pull off a successful overthrow of tyranny aren't going to just magically appear out of thin air. They have to preexist in such a way that they are accessible to the citizenry at the time of insurrection. The 2nd Amendment is there to ensure that the citizenry is able to keep such arms so that it can successfully deal with that very situation.

Otherwise, you may as well say that the framers were mistaken in their belief that a citizenry needs to remain well-armed in order to deal with the eventuality of tyranny, for a population that is armed lightly is going to be little more effective at throwing off a tyrannical government than is an entirely disarmed population.

The Revolutionary War itself can shed some light on this question. I heard about a study that showed that 90% of the munitions used by the rebels actually came from the French. Those certainly weren't pre-existing in the colonies or homemade.

I suspect that model will apply to any theoretical, future insurrection. The rebels will acquire most of their arms through smuggling, sympathetic foreign powers, taken from government arsenals, or brought in by government forces sympathetic to the rebel cause.

The Heller majority arguably has found a weapon that fits that criteria: the very weapon under contention in Miller.

I think that was mentioned merely in passing and doesn't constitute any firm conviction on the part of the majority. In light of the curious circumstances of Miller, there is certainly no well-developed factual record on the issue. If in the future, somebody brings forward a well-prepared challenge on sawed-off shotguns, I think it has a reasonable chance of succeeding.

But the words matter here. The "dangerous and unusual" term, which originates from a law prohibiting one from terrorizing the public with such a weapon, is what was used to justify the notion that the arms which are protected by the 2nd Amendment are those in common use.

And that's just scratching the surface. The "common use" test by its very nature sets in stone those arms which are protected: those currently in common use by the citizenry, or those arms that can come into common use as a result of not being banned sufficiently early or sufficiently widely.

The majority opinion also suggested that 2A protects future arms as well. The majority drew an analogy with how 1A protects modern forms of communications.

Meplat
12-13-2012, 6:39 PM
Because:

1) No one wants to stand before a judge and demand relief for his client who is arming himself to prepare for violent revolution against the government of the United States; and

2) Such an interpretation of the 2nd Amendment (which is not invalid, from an historical standpoint) would instantly strike any laws that prohibited law abiding Americans from possessing any military weapons they chose to possess. No matter what the Founders thought (and in their day Americans could lawfully possess cannon, the most fearsome of contemporary weapons), legal decisions are not issued in a social vacuum, and to a great extent will reflect contemporary ambient cultural values. Today almost no one is interested in allowing Larry Ellison to buy a fully-armed F/A-18 Hornet.

Which means that as long as statists of one stripe or another control the public schools there is zero chance of successfully perusing that line of argument.

Meplat
12-13-2012, 6:44 PM
The problem with that line of argument is who gets to say when


When you grab your musket and hit the street, look to your right and left; if no one else shows, it’s not time.:eek:

Meplat
12-13-2012, 6:53 PM
Indeed, Yuba. In fact, the wearing of the kilt or playing the pipes was an executable offense on its face. Disarming them made hunting them down and executing them so much safer for the Parliamentary Army. As Judge Kozinski said, "where all other rights have failed." We are approaching that with politicians, the media, political parties, and even some of the judiciary.

Judge Kozinski alluded to a government that refused to stand for reelection; we could be closer to that now than we know. Such would no longer be a legitimate government and would justify the people showing their liberty teeth.

Meplat
12-13-2012, 7:13 PM
I feel need to point out that Hitler greatly freed up gun ownership in 1938.

Even if Hilter passed laws against Jews owning guns, (unless they had a reason, like transporting valuables), since general ownership was so free and who was or wasn't Jewish was grey, anyone, including a Jew, would have no trouble getting any guns they wished, either officially or through "strawman" or "2nd hand" un-reported PPT, or just stealing off a drunk German, since so many would have guns for the taking.

It was the Communists who disarmed everybody, then killed them as well as destroyed their "ethnic identity". IIRC, the mere presence of a unauthorized gun would be plenty to 'convict' everyone in the area, including any friends, etc. So you weren't going to have guns around at all, any more than than would have a mortar or something in the USA.

If you don't like Nazi Germany you should say "Nazi Germany is what can happen even if civilians have unlimited access to pistols, rifles and shotguns, and where explosives are loosely regulated."

PS-I believe even The 5th is basically worthless because you be compelled to testify and maybe THAT court of DA can't get you but that in no way protects you from other courts or Feds with "dual sovereignty".

1st also worthless, only limits CONGRESS, not Commissioner Boss Hogg of Hazard County. You either got Freedom of Speech or you don't. We don't.

That is not the way I remember the period between the wars but I have not done extensive reading on the subject for some time so I will not now contradict you.

But the first amendment was incorporated against all levels of government with the passage of the 14th amendment.

kcbrown
12-13-2012, 7:17 PM
The Revolutionary War itself can shed some light on this question. I heard about a study that showed that 90% of the munitions used by the rebels actually came from the French. Those certainly weren't pre-existing in the colonies or homemade.

I suspect that model will apply to any theoretical, future insurrection. The rebels will acquire most of their arms through smuggling, sympathetic foreign powers, taken from government arsenals, or brought in by government forces sympathetic to the rebel cause.


That's true, and relevant as far as it goes, but it fails to account for a couple of very important facts:


The government hadn't entirely disarmed the citizenry of large weapons (cannon, gunboats) prior to the American Revolution. Indeed, as far as I know, no such disarmament took place at all. One was attempted, and that actually helped to kickstart the Revolution.
The disparity in arms effectiveness between the most commonly held arms and the largest was not anything like the disparity that exists today. The biggest disparity would be between a musket and a gunboat, but gunboats were very limited in their mobility and thus their usefulness as a tool of war. Today, the military has firepower that is highly mobile (C-130 gunships, A-10s, tanks, missiles, etc.), packs far more firepower than the most powerful weaponry available to the citizenry, and is unassailable by the weapons available to the citizenry.


So in the modern world, the weapons I speak of would need to preexist because they would be needed to kick off the resistance to tyranny in the first place.



I think that was mentioned merely in passing and doesn't constitute any firm conviction on the part of the majority. In light of the curious circumstances of Miller, there is certainly no well-developed factual record on the issue. If in the future, somebody brings forward a well-prepared challenge on sawed-off shotguns, I think it has a reasonable chance of succeeding.


You might be right about that. Nevertheless, this decision did nothing to overturn the basis of Miller.



The majority opinion also suggested that 2A protects future arms as well. The majority drew an analogy with how 1A protects modern forms of communications.

Where did it suggest that? I saw nothing that would suggest that the 2nd Amendment would protect arms that are not in common use, and we've already seen the language that says that explicitly talks about protecting arms in common use. If arms that are not in common use are protected, then what was the point of even explicitly calling out commonly used arms as protected?

No, a plain reading of the decision strongly suggests that arms which are not in common use (for whatever reason) go unprotected by the 2nd Amendment under Heller. Indeed, the fact that the Court saw fit to use the "common use" language instead of directly using the "dangerous and unusual" language can hardly lead to any other conclusion, for the latter language was most certainly available to them.

SilverTauron
12-13-2012, 7:32 PM
That's true, and relevant as far as it goes, but it fails to account for a couple of very important facts:


The government hadn't entirely disarmed the citizenry of large weapons (cannon, gunboats) prior to the American Revolution. Indeed, as far as I know, no such disarmament took place at all. One was attempted, and that actually helped to kickstart the Revolution.
The disparity in arms effectiveness between the smallest arms and the largest was not anything like the disparity that exists today. The biggest disparity would be between a musket and a gunboat, but gunboats were very limited in their mobility and thus their usefulness as a tool of war. Today, the military has firepower that is highly mobile (C-130 gunships, A-10s, tanks, missiles, etc.), packs far more firepower than the most powerful weaponry available to the citizenry, and is unassailable by the weapons available to the citizenry.


So in the modern world, the weapons I speak of would need to preexist because they would be needed to kick off the resistance to tyranny in the first place.

I'd have to disagree with this conclusion profoundly. In point of fact the disparity has lessened, not increased.

Well wash my mouth out with soap! Modern day people cannot own war-capable aircraft, tanks, or WMDs!

That's true, but all that fancy equipment requires home grown logistical support in order to work. Without fuel trucks, no Abrams tanks can move. Without replacement parts and components, A10s don't fly. Without skilled craftsmen and repair experts, high tech hardware becomes paperweights. In the event of a civil war all that expertise and logistical support either dries up or becomes VERY difficult to maintain. In this respect the government's arms advantages become liabilities PDQ.

On the small arms front, the average man in many states can own weapons all but identical to the ones US military personnel carry, down to the same-and in many cases SUPERIOR-accessories and parts choices.

A grunt carries a beat up M9 pistol that's been handed down for 20 years. A theoretical civilian opposing him may be carrying a Les Baer 1911 with an accurized barrel and high performance sights. The same comparison can be made with AR15s-I can tack on an Eotech scope,foregrip,rail, lights & Magpul stock to my semi-auto rifle. Rest assured no line army guy's gonna get a 40 year old M16 outfitted that well!

Oh yes, the Feds can carry full auto hardware. Note that only hits count when it comes to shooting at something, and full auto all but wastes ammo with nothing gained in terms of accuracy. A team of 4 guys who hit what they aim at will be much more deadly then 30 people spraying and praying at full auto in a random direction.

In practical terms the only disparity between us people and the military with regard to small arms actually goes the other way, especially if you factor training into it. We already know the big stuff won't work right without support of the population. Good luck launching a cruise missile with a busted guidance computer.

Powerkraut
12-13-2012, 7:33 PM
Speaking of Miller, I find it funny that Miller and Heller used contradictory reasoning to uphold their decisions. Miller claimed that 2A only protected military-type weapons (not realizing that trench guns had been one of the most useful weapons of WWI) and Heller holds that because military-type weapons are not in common usage they are not protected, I believe they specifically refer to machine guns.

The NFA has always been a sore spot for me mostly because of how rediculous the Miller decision was. I would love to see it repealed in our lifetime.

kcbrown
12-13-2012, 8:00 PM
I'd have to disagree with this conclusion profoundly. In point of fact the disparity has lessened, not increased.

Well wash my mouth out with soap! Modern day people cannot own war-capable aircraft, tanks, or WMDs!

That's true, but all that fancy equipment requires home grown logistical support in order to work. Without fuel trucks, no Abrams tanks can move. Without replacement parts and components, A10s don't fly. Without skilled craftsmen and repair experts, high tech hardware becomes paperweights. In the event of a civil war all that expertise and logistical support either dries up or becomes VERY difficult to maintain. In this respect the government's arms advantages become liabilities PDQ.


Not quite. Close, though.


Without fuel trucks, no Abrams tank can move once it runs out of fuel.
Without replacement parts and components, A10s don't fly once they break.
Without skilled craftsmen and repair experts, high tech hardware eventually becomes paperweights.


These difference matter a lot. The government is not going to leave its arms in a state of unreadiness. Any insurrection against the government would have to last long enough to see the massive advantage in arms the government will initially have disappear, and it can't do that unless it has arms of sufficient strength of its own.

Hence, the necessity of the 2nd Amendment to make it possible for the citizenry (a.k.a. the militia) to preserve the security of a free state.



In practical terms the only disparity between us people and the military with regard to small arms actually goes the other way, especially if you factor training into it. We already know the big stuff won't work right without support of the population. Good luck launching a cruise missile with a busted guidance computer.

That logic would work if the initial state of all that hardware was a broken state. But it's not. The initial state is a working state. Good luck going up against that with a bunch of peashooters.

kcbrown
12-13-2012, 8:41 PM
I'd have to disagree with this conclusion profoundly. In point of fact the disparity has lessened, not increased.


Then explain why a UN-sanctioned coalition had to eliminate Gaddafi's air superiority and subsequently perform airstrikes against Libyan Army tanks (http://en.wikipedia.org/wiki/2011_military_intervention_in_Libya) for the Libyan people to win their civil war.

unusedusername
12-13-2012, 10:36 PM
Today almost no one is interested in allowing Larry Ellison to buy a fully-armed F/A-18 Hornet.

No, but it would surprise the heck out of me if he does not already own one.

htjyang
12-14-2012, 1:33 AM
kcbrown,

Clearly the question of disparity of forces remains in dispute. The US government had a great deal of trouble pacifying Iraq and still has trouble doing so in Afghanistan. The Libyan question can be answered with the Syrian situation where the rebels seem to be gaining the upper hand. It is certainly true that Heller didn't overturn Miller. I'm merely pointing out that there is no firm conclusion in Heller that any particular weapon can be banned. The majority in Heller clearly stated that:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

phrogg111
12-14-2012, 1:49 AM
Disclaimer: I am not a legal expert and make no claim to be.

I've been getting into 2A politics pretty heavily and have been doing some browsing over the last few months of the cases here in CA and at the national level (hooray for Illinois!) and I've noticed that all of the counsel on our side argue the 2A for self-protection against thugs and rapists. Even the recent Illinois 7th Circuit case had the majority specifically mention thugs on the street.

It is my personal belief that the single biggest reason for the 2A was for The People to have protection and an insurance policy against a future tyrannical government. I believe the 2A gives us the right to bear arms, with the specific intent to use those arms against a future corrupt government, foreign or domestic. I don't think this is just my own belief, but a common view shared and repeated amongst American historians.

So this leads to my question: Why is this never brought up in court? It seems to be the one thing that the 2A was intended for, but no one wants to talk about it. Would bringing this reason up make pro-2Aers seem loony and crazy? Would it make us seem like traitors?

I really don't get it. Americans are supposed to be patriots, freedom lovers, and against tyranny. Can someone please explain to me why no one talks about the big elephant in the room, from a legal perspective?


I believe it's never brought up in court, because the primary reason that the 2nd amendment exists isn't to protect against a tyrannical government. Although that certainly is one good reason.

The reason that the 2nd amendment exists is for justifiable homicide (or at least the justifiable use of deadly force).

I'm pretty sure tyranny may, under some circumstances, provide a good reason that deadly force would be justified.

It is the right of the people to keep and bear arms. Arms are weapons for killing people. The right of the people to keep and bear arms shall not be infringed. This means that any reason to keep and bear arms is a valid reason. The right of the people to keep and bear arms exists and shall not be infringed because a well regulated militia is necessary to the security of a free state. This is the reason the right exists, however, as it shall not be infringed, there is no "reason to exercise your rights" - primary or secondary.

The second amendment to the bill of rights does, in fact, apply to all arms. Until the second amendment to the bill of rights is changed, this will continue to be true.

The reason to exercise your rights remains your choice, because you have the rights, and they shall not be infringed.

Mitch
12-14-2012, 5:57 AM
I believe it's never brought up in court, because the primary reason that the 2nd amendment exists isn't to protect against a tyrannical government. Although that certainly is one good reason.

The reason that the 2nd amendment exists is for justifiable homicide (or at least the justifiable use of deadly force).

Have you ever read the Federalist Papers?

donw
12-14-2012, 6:54 AM
when one reads the Declaration of Independence, it clearly lays the foundation for the existence of the 2A.

with that in mind...can you imagine ANYONE going to court and saying that: "We have a tyrannical government and it is our right, and duty, to remove it according to the Declaration of Independence."?

can you imagine anyone campaigning that in the media? they would immediately arrested for, at least, sedation...

if it did go farther, and there was armed resurrection, the national guard would be called into action...now...if that occurs, do you think that 'revolutionaries' with MSR's would have a chance against the NG?

if political changes continue down the road they're on now, i think there may be more of a chance of that scenario than we might think.

pbreed
12-14-2012, 6:55 AM
Ok Rambo's tell me you can effectively oppose this with small arms?

http://www.liveleak.com/view?i=7e2_1342645222

Basically if the 2nd is supposed to be a tyranny relief valve your going to need more firepower than your 1911 and AR15

NKVD
12-14-2012, 8:10 AM
Note: If I am basically reiterating earlier comments well... I only read the first page so far. No I am not any kind of legal expert or anything close to that. I firmly believe in my 2A rights and plan to continue in my expression of them by buying and shooting more guns. Just try to take them... From my cold dead hands.


Now serious: Address a federal judge in his courtroom sometime, and tell him: "Your honor, I need the right to keep and bear arms, so in case I disagree with the US government, I can start an armed insurrection and overthrow it, including the judicial branch. Since you happen to be conveniently close to me, let's start with you. Could you please put on this T-shirt with concentric circles, to make it easier to aim?"

How do you think this will fly? Like a lead ballon.
*sarcasm* Yes because I would just love to buy a nuke and drop it ion my neighbor's dog. No! We don't want to start an insurrection but if need be we will. It's like shooting a home intruder; I'd rather not, but he's still coming so away mine lead train.

:King:
Exactly what we wish to avoid.

The Scot's were disarmed by the English. As such they weren't able to defend
themselves on even an individual scale against the brutality of local English forces.
This experience was a big part of Scottish Americans supporting the second amendment.
And there were a bunch of Scottish founding fathers.
A total overthrow of a government was not the only reason
citizens were to be armed, but the protection of the region or individual.

In other words, the right of citizens to bear arms was for the protection of all
along a contiuum from individual through community up to nation.
An excellent example.

Because Americans of Olde loved patriotism, this nation, and all it stands for. Today the modern generation of Americans don't know what true freedom is and believe in some places that liberty should be outlawed. Tyranny? Remember that Hitler was lawfully elected to his office.

Given that social situation today, its very hard for a lawyer to argue in front of a judge that the 2nd Amendment guards freedom when 90% of people have no idea what that actually is, including the judicial bench. Crime protection and self defense is a concept everyone from New York to Montana can identify with, but freedom? Defending Liberty? Overthrowing a lawfully elected government? Such is the talk of crazies!

The very ugly choice we may face in our lifetimes is overthrowing a corrupt government lawfully and willfully elected by our deluded neighbors, or following a corrupt regime that has public backing. Such is beyond the scope of this post, but that's why the "liberty's fail safe" argument isn't heard in court.
Tried arguing this to a group of liberals (My college English class). I felt like I was trying to argue with vegans that they were conducting a wholesale slaughter of plants and that they should switch to meat. They will never understand. The only fail safe argument they have is to employ fallacy and rhetoric, and to ignore every piece of data that even slightly counters their own. You can't argue with idiots.

Judge Kozinski spelled that argument out in his dissent in Silveira v Lockyer (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CDEQFjAA&url=http%3A%2F%2Fnotabug.com%2Fkozinski%2Fsilveira _v_lockyer&ei=L9HIUI7aMOfziQKsj4CQDQ&usg=AFQjCNH04blxI1elwTxsZfeIrJJ4ndp7BQ&bvm=bv.1355272958,d.cGE):

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."
I love that dissent (Kozinski). And of course some news agency would probably condemn them as "political" or "biased". But instead they buried it. Right? Wait... Never mind this was from 2003.

Because:

1) No one wants to stand before a judge and demand relief for his client who is arming himself to prepare for violent revolution against the government of the United States; and

2) Such an interpretation of the 2nd Amendment (which is not invalid, from an historical standpoint) would instantly strike any laws that prohibited law abiding Americans from possessing any military weapons they chose to possess. No matter what the Founders thought (and in their day Americans could lawfully possess cannon, the most fearsome of contemporary weapons), legal decisions are not issued in a social vacuum, and to a great extent will reflect contemporary ambient cultural values. Today almost no one is interested in allowing Larry Ellison to buy a fully-armed F/A-18 Hornet.
Now why would anyone in their right mind would go that far? The answer is not me as I am not entire in my right mind... so yeah. But really no one is crazy enough to go out and by some military aircraft. It's too expensiove for the average citizen and then you need to factor in maintenance, ammo costs, fuel costs, etc. It's just far too much hassle to own something like an F18.

Disclaimer: I am not a legal expert and make no claim to be.

I've been getting into 2A politics pretty heavily and have been doing some browsing over the last few months of the cases here in CA and at the national level (hooray for Illinois!) and I've noticed that all of the counsel on our side argue the 2A for self-protection against thugs and rapists. Even the recent Illinois 7th Circuit case had the majority specifically mention thugs on the street.

It is my personal belief that the single biggest reason for the 2A was for The People to have protection and an insurance policy against a future tyrannical government. I believe the 2A gives us the right to bear arms, with the specific intent to use those arms against a future corrupt government, foreign or domestic. I don't think this is just my own belief, but a common view shared and repeated amongst American historians.

So this leads to my question: Why is this never brought up in court? It seems to be the one thing that the 2A was intended for, but no one wants to talk about it. Would bringing this reason up make pro-2Aers seem loony and crazy? Would it make us seem like traitors?

I really don't get it. Americans are supposed to be patriots, freedom lovers, and against tyranny. Can someone please explain to me why no one talks about the big elephant in the room, from a legal perspective?
It's because the American people have been brainwashed and cowed into either believing the "government" will always be there to help and protect you, or that if you do speak out then they will come for you.

The thing is, when this is brought up the Left goes haywire. They throw accusations around and generally fall for a number of fallacies, namely of which are the Slippery Slope fallacy and the ad hominem (personal attack) fallacies. Complete unreasonableness and empty rhetoric usually follow. But i completely agree with your line of thinking. Who knows? We might just need it in these next four years.

YubaRiver
12-14-2012, 8:24 AM
Ok Rambo's tell me you can effectively oppose this with small arms?

http://www.liveleak.com/view?i=7e2_1342645222

Basically if the 2nd is supposed to be a tyranny relief valve your going to need more firepower than your 1911 and AR15

So the Taliban has been vanquished?

Mitch
12-14-2012, 8:34 AM
Now why would anyone in their right mind would go that far? The answer is not me as I am not entire in my right mind... so yeah. But really no one is crazy enough to go out and by some military aircraft. It's too expensiove for the average citizen and then you need to factor in maintenance, ammo costs, fuel costs, etc. It's just far too much hassle to own something like an F18.

And yet, the Czech Aero L-39 Albatros (http://en.wikipedia.org/wiki/Aero_L-39) remains popular in certain heady high net worth circles. I saw a couple flying around in the San Gabriel Mountains a few years ago:

http://farm4.staticflickr.com/3188/2704900733_76cfbac05c_z.jpg (http://www.flickr.com/photos/simonov/2704900733/)

These are legal to possess only because they are not armed.

Your argument sounds suspiciously like one we have heard many times, except it goes something like this: "But really no one is crazy enough to go out and buy some military rifle or machine gun."

The fact is, there are people who wish to possess whatever they can lawfully possess, for their own reasons. Your own personal desires and tastes should not represent a standard by which others should be measured under the law.

Meplat
12-14-2012, 8:37 AM
Never heard of that. And, if so, did he do it in fact? Most importantly........source?

Actually, as I recall the really draconian gun control came early as a result of the treaty of Versailles. Hitler in the beginning did work toward easing restrictions so his henchmen could be armed. As he consolidated power several forces; not necessarily allied with Hitler; backed various more restrictive measures, some were adopted. Hitler didn’t really seem to care at the time because he was the government by that time and of course the government was exempt.

donw
12-14-2012, 9:02 AM
Ok Rambo's tell me you can effectively oppose this with small arms?

http://www.liveleak.com/view?i=7e2_1342645222

Basically if the 2nd is supposed to be a tyranny relief valve your going to need more firepower than your 1911 and AR15

what you say is true...about the 1911 & MSR's

the founders and framers of the constitution had no idea that the "Militia" would soon become a separate, military, state controlled entity, from the, then, civilian community, when they wrote the constitution.

Meplat
12-14-2012, 9:29 AM
when one reads the Declaration of Independence, it clearly lays the foundation for the existence of the 2A.

with that in mind...can you imagine ANYONE going to court and saying that: "We have a tyrannical government and it is our right, and duty, to remove it according to the Declaration of Independence."?

can you imagine anyone campaigning that in the media? they would immediately arrested for, at least, sedation...

if it did go farther, and there was armed resurrection, the national guard would be called into action...now...if that occurs, do you think that 'revolutionaries' with MSR's would have a chance against the NG?

if political changes continue down the road they're on now, i think there may be more of a chance of that scenario than we might think.

You are assuming that the NG would in fact support an ilegal Gvt.

Meplat
12-14-2012, 9:46 AM
The argument that firearms are useful as a last resort against tyranny is, in my opinion, a sound one, with two important provisos.

Number one: It's an extra-governmental argument. It's an argument about defying and disobeying government. A court is a governmental institution, and for a court to work, its rulings must be obeyed. So, if you go into court and make a case for the "final argument of Liberty," you're asking for the court (the government) to be obeyed about being disobeyed. A paradox. The argument that we have firearms as a last resort against tyranny is fundamentally incompatible with the court system because if you ever had to disobey the government, you'd be disobeying the court system.

Number two: Most people, unlike most of the people in this thread, do not understand Whig ideology. If you bring up using guns to resist governmental tyranny in casual conversation, you will appear crazy and dangerous. I can't stress this enough.


YES. It would.

Edit: Actually I just read Htjyang's post, above mine, and it refutes my post pretty well:

Well……….. The judiciary is one branch of government. The three branches do not march in lock step. The executive is presumably the dangerous branch. Unless its paid minions disobey orders SCOTUS is toothless. As someone once asked about the Pope; how many divisions does Chief Justice Roberts have?

I can envision circumstances wherein a large body of the population, possessed of its own arms, and loyal to the constitution, the rule of law, justice, and the notion of ordered liberty, might just be a great comfort to the judiciary.

Meplat
12-14-2012, 9:54 AM
We all know it, it's one of the major reasons we fight so hard to keep the right. They all know it, it's one of the major reasons they fight so hard to disarm us.

Way to cut through the bull $#!t. ;)