What Would The Founding Fathers Say

[aquatus1]

Yes you're right and we've discussed this. You can change the Constitution in the US by amending it.

Which is not the only way to change the law in the United States. It is, actually, the extreme end of the options, that only very rarely must be called into play (only 17 times in the past 200+ years). The far more common method of changing laws in the US is simply by regular old circuit judges making new precedent rulings on existing laws. The next most common is Supreme Court Judges deciding on constitutionality or re-interpretation.

It's a formal and necessary process,

It is only necessary when there is a constitutional challenge to the law. Otherwise, it is dealt with in the lower courts. Prior to the 1970's, unchallenged virtually entirely since the 1939 ruling in favor of state rights, it simply wasn't necessary until the whole special interests lobby got into it.

and so loose discussions about changing the law and acting like the courts change our laws can lead to a lot of erroneous thinking, especially in the case of the Second Amendment where another Amendment is necessary to change it.

Which is why you are always being challenged when you play fast and loose with how our government's legal system actually works.

If limiting the right to bear arms solely to the National Guard is aquatus's shtick,

Which it is not, which you have already been told multiple times, which you have already been called out on in regards to this being a failed attempt at creating a strawman by re-interpreting (you can't even call it "twisting" anymore) my actual statements.

his only legal recourse is a Constitutional Amendment.

Not at all. Ignoring the part about the National Guard being the only ones allowed to bear arms, because you made up that claim entirely on your own (i.e. you lied), the creation of the National Guard was merely a revisal of the original Militia Act of 1792 into the Militia Act of 1903. The new act divided militias into the Organized Militia, which received federal funding, training, and support (i.e. the National Guard), and the Reserve Militia (known less generously, but more accurately as the Unorganized Militia).

It is true that limiting weapons solely to members of the militia and no one else, or, for that matter, passing any law banning weapons altogether (which would be largely the same thing) would require a constitutional amendment, however absolutely NO ONE on this thread had suggested this.

We can dance around the trivia all day but it's not going to get around that.

If you would stop dancing so much, we might actually be able to discuss the actual point.

[aquatus1]

All the difference pretty much.

You are avoiding the question, Yamato. What are you scared of?

No, that would be like me saying that we both agree it's been the rule of law since 1791. You're not ready to admit that yet, for some strange lingering reason.

No, Yamato, saying we agree it has been the law since 2008 is not the same as saying we agree it has been the law since 1791. The first statement is true, whereas the second statement is false. Either way, however, we both do agree that the law has been, since 2008 at the very least, in favor of individual rights.

Why is it so important for you that it was so prior to that? Why spend so much effort on it if it is something that is no longer relevant to the law today? My reason is still in effect, as History requires one to know the past, but your claim of "Rule of Law" (reflecting the exact opposite of the quote from John Adams himself asserting that guns in the hands of individuals not in a militia would be the end of the constitution and the rule of law, p.15) should be valid regardless of what happened prior to 2008. Why is it so essential for you not to be wrong?

Because that's what the rule of law is. When the Constitution is amended, it's the rule of law. Not 200 years later.

The rule of law encompasses far more than the Constitution, surely even you must acknowledge that. Circuit courts do not refer to the constitution when passing judgements. The Rule of Law is the current law of the law, not what came before nor what will come after (we actually have an amendment specifically stating that). The current law is that individual rights is the rule. Why are you demanding it be acknowledged to have been this way since 1791? How does that tie into your alleged reason for discussion?

What is really the motivating factor in your continued insistence that you are not wrong?

Your word count, compared to my word count. What is "so much effort", really?

Still avoiding the question, Yamato. And this time, by going into philosophy. Scraping the bottom of the barrel, there.

Come on, fess up. Your motivation has nothing to do with the Rule of Law. Your knowledge of the law has been directly shown to be wrong on multiple occasions in this thread alone, let alone in your history of posting. Hell, you are the one who claimed the Constitution was intended to prevent a standing army. No, not even you can claim that you are defending the Rule of Law.

Why so insistent, Yamato? Why to the point of even trying to turn it into some philosophical "What is effort, really?" sort of dismissal. Everyone can see that this is a personal point for you, just as it is for me. You asked me for my reason, and then dismissed it as unimportant when I gave it. Well, I'm asking you the exact same question in return. We are all waiting for your answer.

Your answer to what? My answer was, it's the rule of law circa 1791. You're repeating the same question and we're done here.

Don't be scared, Yamato. There's no need to run away. You know perfectly well what the answer and the question was (considering you even reference it right there, literally the next sentence over). You decided to make this personal by asking me for my motivation.

Your turn.

[aquatus1]

So wrong AQ1. The rights of man MUST extend to the individual level. It is the individual that is sent to prison. It is the individual that is arrested and prosecuted by the government. All proceedings must begin at the individual level.

The rights of man, being a philosophical construct, can mean whatever the heck you want it to mean. The legal rights within a constitutional government, being a legal form, extend to whomever is defined in the right as written or interpreted.

Don't mix up philosophy with law and you won't have so many problems.

Yes, of course an indictment can list several people, but it must start with one man.

And any individual can claim legal protection under a given legal right as long as it doesn't violate the terms as defined by the legal right. If a person is part of a group that has been indicted for something, that person can claim protection from a group right.

Not that this is particularly relevant to the discussion of the 2nd amendment, or amendments in general, but rather legal minutia which really isn't going to affect the course of the argument in any significant way.

And the nonsense about "It is only when individuals gather as a mob...." is absurd.

I'll take any such analysis from you with a condescending nod to your past history in such things.

If that were true, why is it that the right of Habeas Corpus (that is singular, btw) was nullified by Congress in the absence of mob action?

Well, being that the above claim has been put forth so, so, so many times, I would need to know what you were talking about to comment specifically, however I suspect the reason can be found in the actual definition of habeas corpus (hint: Habeas corpus is also known as the "Suspension" clause).

But, since this is likely simply another attempt by yourself to cloud the issue, don't bring it up unless it directly impacts whatever point it is you are trying to make.

If that were true, why was the Fourth Amendment nullified by way of the Unpatriot Act in the absence of mob action?

Same as above.

Still not bothering to find out how you could legitimately claim individual rights to bear arms as an actual legal right? No?

Would you like a hint?

[Yamato]

Which is not the only way to change the law in the United States. It is, actually, the extreme end of the options, that only very rarely must be called into play (only 17 times in the past 200+ years). The far more common method of changing laws in the US is simply by regular old circuit judges making new precedent rulings on existing laws. The next most common is Supreme Court Judges deciding on constitutionality or re-interpretation.

The far more common method of changing lesser laws. You might get away with violating the Constitution with lesser laws. An additional requirement is that they're Constitutional. That's another discussion. And I'd be glad to have it, but not in the context of requiring a militia as the right to bear arms.

It is only necessary when there is a constitutional challenge to the law. Otherwise, it is dealt with in the lower courts. Prior to the 1970's, unchallenged virtually entirely since the 1939 ruling in favor of state rights, it simply wasn't necessary until the whole special interests lobby got into it.

It is "only" necessary to retain constitutionality, which isn't much of an "only". If you want to change the Constitution and be any shade of Constitutional, you have to amend it. That's what we're talking about here in this discussion. Not what you're dancing off into now.

Which is why you are always being challenged when you play fast and loose with how our government's legal system actually works.

I'm sorry the law is clear and you're just dead wrong this time. Get an amendment bud. That's your only recourse and about as slow and tight as it gets.

Which it is not, which you have already been told multiple times, which you have already been called out on in regards to this being a failed attempt at creating a strawman by re-interpreting (you can't even call it "twisting" anymore) my actual statements.

If you believe what you're saying, that can't be true. You're imposing a militia prerequisite on Americans before 2008? You keep repeating "Heller" as if the law changed. Heller is not an amendment. And the rule of law was not militia only, anywhere in this country, before 2008, judging by the lifestyles of millions of people and thousands of districts. Nothing speaks louder than our actions. Our actions suggest that we have an individual right to bear arms, not the reverse. You dancing this painful long narrative of having to go back and needle little nuggets out of the rock that even barely suggest that something you're saying is correct...no man, I won't have that discussion with you here.

Ignoring the part about the National Guard being the only ones allowed to bear arms, because you made up that claim entirely on your own (i.e. you lied),

No I didn't. You made yourself clear about your militia requirement. I asked you why. You said defense against tyranny. I asked you who. You said the National Guard. I put your answers to my questions together and there is no other possible conclusion to make about your position here. You're trying to worm your way out but you're not getting off the mat so easily. Since inventing fantasies about how the Constitution works is so iimportant.

the creation of the National Guard was merely a revisal of the original Militia Act of 1792 into the Militia Act of 1903. The new act divided militias into the Organized Militia, which received federal funding, training, and support (i.e. the National Guard), and the Reserve Militia (known less generously, but more accurately as the Unorganized Militia).

So what? That's irrelevant. Yes, we had a military. No surprise. Back to the topic: Your only legal recourse of changing the Second Amendment is by Amendment.

It is true that limiting weapons solely to members of the militia and no one else, or, for that matter, passing any law banning weapons altogether (which would be largely the same thing) would require a constitutional amendment, however absolutely NO ONE on this thread had suggested this.

Then as people have suggested on this thread, the Second Amendment is an individual right to bear arms. And we've gone full circle. Nobody at least on this thread (see the Poll about gun control on another thread) said that, so why are you talking about it? Banning all weapons altogether is pure straw man. You're using black and white thinking to escape from one color to the other and that's not going to work.

If you would stop dancing so much, we might actually be able to discuss the actual point.

If you don't think that you're discussing this with me, and you're going to patronize me like this, then don't. Have the conviction to walk away and stop wasting your time.

[aquatus1]

**clapping hands and tapping foot in rhythm to the dancing bear**

For any of those who think Yamato might actually have a point (in all fairness, he has about 6 of them, but none are actually pertinent to the topic, and they change as needed when resolved or untenable, so it is easy to get confused):

• Lower courts change laws. If there is a challenge to their Constitutionality, the Supreme Court gets involved. Remember that making a law that restricts a particular right is not a challenge to the right itself. If the change doesn't violate the right, the Supreme Court rules the challenge failed, and nothing changes. If the change does violate the right, the Supreme Court rules it valid and gives its interpretation of the right. In neither case does the actual right, as written in the book, change; only the application of it. Laws do not have to be re-written in order to be changed.
  
• You don't need to amend the Constitution to change the rights affected by it. The Constitution guarantees a militia and states who is in charge of what, but the actual details of the operation come from a separate source (in this case, the Militia Act of 1903). Unless the act or directions or process used in implementing a particular right are in violation of the actual right, they are still perfectly within the scope of the Constitution. You can change the rules to fit the situation, as long as the spirit of the game stays the same.
  
• No one on this thread has requested anything that would require a constitutional amendment. No one has suggested the 2nd amendment be repealed. No one has recommended weapons be banned. No one has proposed a new amendment repealing the individual rights to bear arms. These are all fictional accusations. They do not represent the positions of anyone who has posted to date.
  
• The claim that the Constitution was meant to prevent a standing army is wrong. The claim that the 2nd amendment does not refer to the bearing of arms by the militia is wrong. The claim that only the Michigan Militia or the National Guard can bear weapons is wrong.
  

No amount of repetition will change that. No amount of denial will affect it. No amount of blustering will hide having no respect for history, no understanding of the rule of law, and more fear of being wrong than desire to be right.

Edited July 26, 2014 by aquatus1

[Yamato]

All the jockeying, invective and one-uppsmanship about who doesn't understand things, about who doesn't hold our laws in context, about who can't interpret the laws correctly, along with saying that the Supreme Court doesn't have those problems, already made my argument for me. The Supreme Court is the one that interpreted the law. I mean how difficult is this, really?

The claims, as far as what I actually said, was that a reference to the Militia isn't creating the Militia, authorizing the Militia, or guaranteeing the Militia. Article 1 already did that. As if the Militia wasn't armed in 1791. As if they hadn't just defeated the world's superpower in a war of independence. As if the attempted confiscation of privately owned firearms wasn't instrumental in starting the Revolutionary War in the first place. Alrighty then.

You slip and slide into rhetoric about "state run militias" too at the same time you're citing Article 1. Article 1: 15 says To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress

Probably a few more commas in that one too than we need in modern language, but the meaning is clear. The federal government is empowered to organize, arm, and discipline the Militia. The same Militia that is referred to in the 2nd Amendment. Then we state that the purpose of our obsolete collective-rights interpretation of the Second Amendment is to prevent tyranny? How in God's Green Hell are you going to defend against the tyranny of government by appealing to the government to provide you with the organization, armament and discipline you need to defeat the government? What planet are we crash-landing on? Are we about to embark on another classroom about non-governmental forms of tyranny here that the Militia will have to single-handedly save us from? This sloppy and I would add irreverent treatment of the rule of law highlights a fundamental paradox our Founders tried so hard to prevent in the way in which they separated power and it's why our government was ultimately designed the way it is by the Constitution. Guaranteeing the militia that the government runs, or more specifically, guaranteeing the guns of the Militia that the government runs, flies in the face of preventing tyranny today. In 2014 the collective-rights model is absurd when we consider the organization of our government, our military, the National Guard, and state militias all.

Like the demands of people from the States for other rights, such as freedom of speech and religion, they also wanted an assurance that the government wasn't the ultimate arbiter of firearms in this country. The intent of the Second Amendment was to ensure that the government would stay afraid of the people.

Pennsylvania's appeal for an Amendment on gun rights: 'That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.'

Well how slick those Founders were then to slip in a word like "People" into the law and screw over Pennsylvania by not telling them that "the People" actually meant the Militia.

Nonsense. Guaranteeing government guns you already authorized to prevent tyranny?! Yeah and maybe only the Militia had the right to hunt, too.

What a zoo.

[Babe Ruth]

So very NOT persuasive AQ1

It sounds like your understanding of constitutional principles was acquired maybe on a television offer, a "class" conducted by "constitutional law professor Barack Obama"

[aquatus1]

You know...

I think I'll just leave that as is. I honestly don't think I could describe the gap between yourself and me any better than that short little post.

[Bama13]

Here is what Thomas Jefferson, one of the founding fathers, did say: "The beauty of the Second Amendment is that it will not be needed until they try to take it."

"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first."

Edited August 8, 2014 by Bama13

[Babe Ruth]

Government is like fire--a useful servant but a fearsome master.

The Jury is perhaps the best device designed by man to keep the government within its lawful boundaries.

[Alaric]

"The problem with all these internet attributions is that you're never entirely certain which ones are legitimate."

Thomas Jefferson

All levity aside, I think the founders would weep... officially sanctioned kidnapping and torture... extra-judicial killing of American citizens... "laws" legitimizing the indefinite detention of citizens and the removal of their rights... the way the 1st Amendment is gutted by the government's collusion with and control of the media... the way they are slowly, but surely, pulling the teeth out of the 2nd Amendment, with the eventual aim to get rid of it entirely.... most of all, the government's use of what amounts to general warrants.  If you know your American history, general warrants were one of the main reasons the founding fathers rose up against England and threw off the shackles of their monarchical system of government (along with the concept that our rights are granted by the government).  This is likely the main reason those that still bow to the queen begrudge us our guns to this day (yet have an odd fascination with them), as they are the very tool which we used to attain our freedom.

It boggles the mind, the cognitive dissonance of those who argue that the 2nd amendment should be limited because the founding fathers couldn't have possibly imagined some sort of modern firearm. They say that we should have severe restrictions and limitations on what kind of arms we can bear (i.e. only flintlocks and muskets), yet they are posting about this on a world wide web of interlinked computers that can simultaneously reach billions of people at once... using their logic, their own free speech rights should therefore be severely curtailed, monitored and restricted (ironically enough, something our government is also certainly working on as I type this).

Regarding tyranny of government, those that believe it is not possible demonstrate a glaring failure to study history even in the most elementary way.  "B...b...but... it will never happen, we live in the USA!"... ask any First Nation tribe, they'll tell you all about government tyranny (and how it continues to this day) in the good old US of A.

 

Regarding the meaning of "well regulated" in the 2nd amendment.

http://www.constitution.org/cons/wellregu.htm

The meaning of the phrase "well-regulated" in the 2nd amendment

From: Brian T. Halonen <halonen@csd.uwm.edu>

The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.

So, read as initially intended by the founders, using the language in common use at the time, the meaning of the 2nd amendment is simple and clear:

An armed citizenry, being necessary for a militia that functions properly (i.e. they can be called up at any time), the the government shall not infringe upon the right of the citizenry to keep and bear arms.

[danielost]

As I said, tradition being the rule. Americans can own any weapon they can throw over their shoulder, with th e exception of explosives. Which would mean machine gun yes RPG it hand grenade no.

[toyomotor]

If there was some magical way to transport the founding fathers to modern America, what would they say about the current society? Do you think they might possibly regret putting in the right to bear arms in the constitution or that they might think differently about freedom of speech after listening to talk radio for an hour? What are your thoughts?

Their first words would be, "****, we certainly stuffed this up didn't we?"

The Right to Bear Arms would be removed-retrospectively.

Freedom of Speech would be modified to a more acceptable and less PC level.

Slavery would be outlawed from the outset.

And that's just the first 30 seconds worth!!