From Backwoods Home Magazine: 2nd Amendment, the Bill of Rights...long read, but worth it

[ZoEd]

http://www.backwoodshome.com/articles/silveira58.html

I posted this article in another thread and I'm quite surprised that no one has commented on the information contained within. Some very good opinions, questions raised, clarification given and facts that I wasn't aware of. The also seem to be supported by hyperlinks that will take you to where they're written. I'm interested in seeing what folks on both sides of this debate think about the above article. I know it's very long, but still an excellent read; so, I've copied some of the text and pasted it below.

In regards to the Second Amendment referring to only the "militia" having the right to bear arms.

"Read the amendment again. It’s about the militia. It’s only you gun nuts who think it’s about you".

“The National Guard didn’t exist when the 2nd Amendment was written. It came into existence over a century later,” Mac said without looking up and he continued to read.

“What?” Dave asked.

“I said the 2nd Amendment isn’t about the National Guard. The Bill of Rights was adopted in 1791. The act that created the National Guard wasn’t enacted until 1903.”

“What’s this about how the guys who founded this country used the word militia?”

“You’ve got to understand what the militia is,” he said. “In May of 1792, five months after the adoption of the 2nd Amendment, the Militia Act was passed. That act distinguished between the enrolled militia and the organized militia. Before the passing- of that act, there was only the enrolled militia, which was the body of all able-bodied men between the ages of 17 and 44, inclusively, and it is that militia to which the 2nd Amendment refers. It couldn’t refer to the organized militia because it didn’t exist yet. The 2nd Amendment was to ensure that this body of citizens is armed and that’s why the Founding Fathers thought to place it in the Bill of Rights. Legally, both militias still exist.”

When the guy debating the wording and intended meaning of the militia, the guy Mac continues.

“I was looking up some stuff on the 2nd Amendment for a lawyer friend I play poker with down south,” he said, meaning southern California, “and I still have some of the papers.”

“Here are copies of the Militia Act,” he said and held them out to Bill. “They explain what the militia meant to the Founding Fathers. They also show that the 2nd Amendment came before Federal law created the organized militia and provide evidence that what they referred to as the enrolled militia—the body of citizens—were allowed to arm themselves.”

Bill waved them away. “All that happened 200 years ago,” Bill said. “Militia means something else today. It means the military.”

When Bill states what many have stated in recent years "that was 200 years ago, it means something different now". Mac responded with this.

“No, the law hasn’t changed,” Mac said. “But even if we decide the word means something new to us, you can’t use the new definition to change the intent of the Amendment.”

“That’s your opinion and you’re entitled to it. But times have changed and we need new interpretations of the words and of the Constitution.”

“It’s not just my opinion,” Mac said. “The Supreme Court has ruled that the words in the Constitution mean what the Founding Fathers said they meant, and we can’t go changing or amending the Constitution by giving new meanings or new shades of meaning to the words. And, if you think about it, it makes sense; otherwise, our rights really mean nothing. Congress or any other governing body can deny you the right to free speech, freedom of religion, a trial by jury, or whatever else it wanted just by claiming the words now have a new meaning. An oppressive government could change the Constitution without ever having to go through the bothersome ritual of submitting it to us, the people, for our approval. And, in the end, the Constitution and, in particular, the Bill of Rights are there for our protection, not for the benefit of the government or those who run it.”

Then next exerpt is pretty long but I tried to pare it down as much as possible. It discusses "rights" and where they're derived from. I personally think this is where a lot of people get it wrong, assuming the Bill of Rights is where they're granted. Mac does an excellent job of explaining our rights and why the BoR was necessary.

Mac shrugged. “That’s okay. Even if you’re right and the 2nd Amendment refers only to the National Guard, the state police, or some other uniformed military or police organization we’d still have the right to keep and bear arms. We don’t need the 2nd Amendment.”

“Well, let’s start with this,” Mac said. “Can you find anything in the 2nd Amendment, or any other part of the Constitution, that says the individual can’t have arms?”

“And do you also understand that the Bill of Rights is not the source of our rights. It’s not even a complete list of our rights.” I’m asking you if you understand that we do not get our rights from the Bill of Rights.”

“Of course we do,” Bill said. “That’s why they wrote the Bill of Rights.”

“I’m saying this because the Founding Fathers did not believe we got our rights from the Bill of Rights. Nor did they believe they came about as a result of being American, Christian, of European decent, or white. They believed everyone had these rights even if they lived in Europe, China, or the moon. They called them Natural Rights. Where these rights were not allowed, they believed they still existed but were denied.”

“Well, it’s a question as to whether or not our rights exist apart from government,” Mac said. “Let me ask you this,” he said to Bill. “In a country where children have no civil rights, do they still have a right not to be molested? Do women in countries where they have a second-citizen status have the right not to be abused by their husbands, even if the government won’t protect them?”

“I’m saying this because the Founding Fathers did not believe we got our rights from the Bill of Rights. Nor did they believe they came about as a result of being American, Christian, of European decent, or white. They believed everyone had these rights even if they lived in Europe, China, or the moon. They called them Natural Rights. Where these rights were not allowed, they believed they still existed but were denied.”

“Well, it’s a question as to whether or not our rights exist apart from government,” Mac said. “Let me ask you this,” he said to Bill. “In a country where children have no civil rights, do they still have a right not to be molested? Do women in countries where they have a second-citizen status have the right not to be abused by their husbands, even if the government won’t protect them?”

Then is it too much of a stretch for you to understand that the Founding Fathers believed everyone has the right to free speech, freedom of religion, the right to fair trials...?” His voice trailed off

“In other words,” Dave said, “it’s a question as to whether the rights of the citizens in China are at the pleasure of the government or if they have them but are being denied, or if the Jews had basic human rights in Germany even if Hitler didn’t let them exercise them?”

“Yes. All I want to know is if that’s hard for you to see.” He looked at Bill who was still silent.

“Then I see what you’re saying,” Dave said, “But I’m not sure how it relates to the 2nd Amendment.”

“Take it a step further. If the government passed a law tomorrow that said we didn’t have the right to free speech, or the right to free worship, or freedom of the press, would those rights no longer exist, or would they be simply denied? If the Constitution is amended depriving us of our rights, do those rights cease to exist?”

“The answer, according to the guys who set up this country, is yes, we would still have those rights. We’re just being denied them. Because of that, it’s the way we have to look at the Constitution.”

Again, this is a very long read but IMO well worth the 10 minutes it may take you. I'm not starting this thread to start a bunch of name calling thinly veiled behind "I'm attacking your idea, not you". I simply would, for once, like an open debate/discussion on the issue without the smartass comments.

Have a feeling that's asking for too much.

[Predicto]

As I just posted in the other thread, I read the article and didn't find it that useful. It's just one of those made up conversations where one guy makes all of his arguments and comes across as completely reasonable while the other fictitious people raise weak counters, admit they don't know anything, and are bowled over by the force of his undeniable logic. It's completely one-sided.

The article does, however, present the gun rights side pretty well, although it kind of annoys me with its stereotypical "common man who happens to know everything about history and law shows up the elitist egghead lawyer" ending. That's one of my pet peeves.

Again, this is a very long read but IMO well worth the 10 minutes it may take you. I'm not starting this thread to start a bunch of name calling thinly veiled behind "I'm attacking your idea, not you". I simply would, for once, like an open debate/discussion on the issue without the smartass comments.

Have a feeling that's asking for too much.

Dude, you don't have to do the passive/aggressive "everyone disrespects me and my conservative values" shtick in every post you make.

[MattFancy]

Here's something I find interesting, I'm probably generalizing a bit here, but I'm gonna guess most gun owners are conservatives. They are fine with infringing on people's right in regards to banning gay marriage. But say 1 thing about their precious guns and they'll throw the Constitution at you. Yet I'm pretty sure there's something in the Constitution that says, "all men are created equal", so it's okay to infringe on other people's right as long as it's not yours?

[ZoEd]

As I just posted in the other thread, I read the article and didn't find it that useful. It's just one of those made up conversations where one guy makes all of his arguments and comes across as completely reasonable while the other fictitious people raise weak counters, admit they don't know anything, and are bowled over by the force of his undeniable logic. It's completely one-sided.

The article does, however, present the gun rights side pretty well, although it kind of annoys me with its stereotypical "common man who happens to know everything about history and law shows up the elitist egghead lawyer" ending. That's one of my pet peeves.



Dude, you don't have to do the passive/aggressive "everyone disrespects me and my conservative values" shtick in every post you make.

Dude, you don't have to do the superior intelligence/name calling shtick everytime you make a post!

I bumped the previous thread because it seemed to be missed, so, while I was making this thread you probably posted your uber intelligent, articulate, post that did exactly what your post here did...nothing. Would you prefer to make counter points on the article or simply make broad sweeping accusations about its origin, the motivation behind the person writing it and of course your signature dismissive attitude for anyone who has an opposing point of view?

[Jumbo]

I was hoping you'd start a thread on this after reading your posts on it---I think this is a sort of "packet" of viewpoints that reflect a lot of people's thinking on the "high resistance to any more gun laws" side (among other demographic categorizations). I think it would be great if some of our genuinely informed legal and history experts take a stab at it. I can understand if people pass, however. There are fields of my expertise where I won't bother to engage in such at times, for various reasons.

<edit>----My bad for not reading P's reply and the others first---I started this post when the OP was the only other entry, and then went away for a bit, and then came back and finished it and hit enter before re-reading.

ZoEd, I don't fault P's reply. I'd suggest preparing for such when you invite it with your choice of OP. You would perhaps do better to plan for the reality that when your source is pulled from some agenda-driven high-bias internet site, that what one reasonably intelligent person finds impressive in an argument, another very informed person may find silly and not worth engaging to any great degree. That's what I was alluding to in the last line of my post, prior to this edit..

I get his reaction just fine. When I initially read the piece, I was laughing at how contrived it was and art the level it was written, yet I meant what I said about how it reflects the thinking its trying to support and how I would like to see the historical references, as used, dissected and examined. I just wanted to see what someone else who knew more about law and the constitution than I did would present. I have never thought of myself as exceedingly knowledgeable on the Constitution, yet I have come to believe I understand it, and the times (I do know my history fairly well) better than many of the "2nd amendment fever" type (my negative pigeonholing) who often present as though they know it so well.

When this sort of thing is happening involving a matter I am truly expert in I often choose to bypass it (as I also alluded to earlier) because it's just not worth to me to argue with people who haven't spent decades doing all the work required to excel in a complex matter that I did, yet who want to argue with me about it on the internet (not of this is "aimed" at you at all--it's all meant generally).

I still would like to see what you are asking for, but I again will say I understand if it doesn't happen.

[rictus58]

Here's something I find interesting, I'm probably generalizing a bit here, but I'm gonna guess most gun owners are conservatives. They are fine with infringing on people's right in regards to banning gay marriage. But say 1 thing about their precious guns and they'll throw the Constitution at you. Yet I'm pretty sure there's something in the Constitution that says, "all men are created equal", so it's okay to infringe on other people's right as long as it's not yours?

Don't forget their various attempts at infringing/making it more difficult with regards to people's right to vote.
Making it more difficult to buy a gun=bad
making it more difficult to cast a ballot=good.

[Mad Mike]

As I just posted in the other thread, I read the article and didn't find it that useful. It's just one of those made up conversations where one guy makes all of his arguments and comes across as completely reasonable while the other fictitious people raise weak counters, admit they don't know anything, and are bowled over by the force of his undeniable logic. It's completely one-sided.

^ This.

Bottom line is that the issue is far too complex to be resolved with a made up conversation. And from a societal standpoint moving forward, we have to recognize that the vast number of guns in the US and the resistance so much of the population feels towards giving them up means that they aren't going away any time soon.

[DjTj]

The interesting thing about the Militia Act of 1972 is that it included regulations on the types of guns and ammunition that every citizen between 18 and 45 was supposed to own.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

http://www.constitution.org/mil/mil_act_1792.htm

So if the Federal government could require all citizens to own certain types of guns and a certain amount of ammunition, and to require them to report regularly, can it really be unconstitutional for the Federal government to require registration of guns, to limit the size of cartridges, or to regulate the types of guns that are sold?

[ZoEd]

I was hoping you'd start a thread on this after reading your posts on it---I think this is a sort of "packet" of viewpoints that reflect a lot of people's thinking on the "high resistance to any more gun laws" side (among other demographic categorizations). I think it would be great if some of our genuinely informed legal and history experts take a stab at it. I can understand if people pass, however. There are fields of my expertise where I won't bother to engage in such at times, for various reasons.

That's what I'm hoping for, open discussion that provides a better understanding. Of course those of us "gun nuts", since that's the new catchy label the a it's are using, will lean towards agreeing with this articles POV on the 2nd Amendment and the BoR's. But what about those on the other side? Is your interpretation different? If so, how?

[Bang]

It hardly matters.
Our government has once again been hamstrung, hogtied, and rendered completely ineefective by people who I can only characterize as evil corrupt bastards.
Rather than source a million articles, I'll source one guy who lays it all out in short order.
watch the videos called "There goes the Boom".. there's two parts.

http://www.thedailyshow.com/

What does the constitution say about bribing officials and dismantling official law enforcement agencies?

No discussion will change things. We're slaves to the lobby and their criminal operatives.

~Bang

[mboyd784]

Can anyone from the Fox News/NRA side of the issue explain to me why background checks at gun shows is a bad idea or in any way violates the spirit of the second amendment?

[KDawg]

Can anyone from the Fox News/NRA side of the issue explain to me why background checks at gun shows is a bad idea or in any way violates the spirit of the second amendment?

It doesn't. It's a good idea. (although, I'm so moderate it's ridiculous)

Now, my question back to you is: What constitutes as a red flag on a background check?

[mboyd784]

It doesn't. It's a good idea. (although, I'm so moderate it's ridiculous)

Now, my question back to you is: What constitutes as a red flag on a background check?

Hmmm...probably a little bit out of my realm of expertise having never purchased a gun, but off the top of my head.

Domestic violence charge within the last two years, conviction within the last 7 years.
DUI conviction within last 5 years.
Possession with distribution charge 5 years, conviction within 10 years...or would this already be covered as a felony? Do gun shows even check for previous felonies at this time?
Outstanding child support or child endangerment charge.

help me out here....

[Bliz]

No, the law hasn’t changed,” Mac said. “But even if we decide the word means something new to us, you can’t use the new definition to change the intent of the Amendment.”

“That’s your opinion and you’re entitled to it. But times have changed and we need new interpretations of the words and of the Constitution.”

“It’s not just my opinion,” Mac said. “The Supreme Court has ruled that the words in the Constitution mean what the Founding Fathers said they meant, and we can’t go changing or amending the Constitution by giving new meanings or new shades of meaning to the words. And, if you think about it, it makes sense; otherwise, our rights really mean nothing. Congress or any other governing body can deny you the right to free speech, freedom of religion, a trial by jury, or whatever else it wanted just by claiming the words now have a new meaning. An oppressive government could change the Constitution without ever having to go through the bothersome ritual of submitting it to us, the people, for our approval. And, in the end, the Constitution and, in particular, the Bill of Rights are there for our protection, not for the benefit of the government or those who run it.”
.

Strict construction is HARDLY a settled matter. It's probably the single most highly debated aspect of the Constitution, whether it should be given strict construction or whether it is a "living breathing" document. Or something in between.

But, for the sake of argument, let's go with strict construction for just one second. You know what no one EVER discusses in this context? What did the word "infringed" mean in common parlance in the 18th century? Did it mean "encroached upon in any way"? Did it mean "substantially impaired"? Did it mean "denied altogether"?

I don't know. Amateur constitutional scholars on the interwebz don't either. But without that information, we can't even attempt a strict construction. Period.

[Kindred]

The interesting thing about the Militia Act of 1972 is that it included regulations on the types of guns and ammunition that every citizen between 18 and 45 was supposed to own.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

http://www.constitution.org/mil/mil_act_1792.htm

So if the Federal government could require all citizens to own certain types of guns and a certain amount of ammunition, and to require them to report regularly, can it really be unconstitutional for the Federal government to require registration of guns, to limit the size of cartridges, or to regulate the types of guns that are sold?

Good find. I didnt realize they provided the regulations for a militia in the Militia Act a few months after passing the 2nd amendment (which oh, by the way, refers to a well regulated militia)