The individual has the right to bear arms. The federal government also has the right to make restrictions on that right if it can show compelling interest just like it can for other rights. An infringement would be that no one may own a gun.....but it is not a law that makes that restrictions on that ownership
The government wanted the troops to carry the best standard weapons of the day. If they had a plasma rifle with a 40 Watt range in 1792, then the Founders would have wanted those. Because the "militia" is "the people"---then those who are able-bodied and are of sound mind---should do as the Founders say, and arm themselves with modern rifles. I'd suggest at least 6 magazines for the rifles.
And yet the authority of the federal government to regulate the militia and its equipment, does not mean that it has the authority to regulate what type of firearms the public is allowed to own privately.
Why was the conscientious object clause removed from the Second Amendment? " Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms." -Elbridge Gerry http://press-pubs.uchicago.edu/founders/print_documents/amendIIs6.html So it appears that Gerry feared that this clause would effectively give "the people in power" an opportunity to exclude whomever they wished from militia service. He clearly wasn't comfortable with Congress having absolute power over the militia. He didn't want the Second Amendment to have that effect. Standford historian Jack Rakove has pointed out that bills of rights tended to be statements of principles rather than legally enforceable claims in 18th Century America. Those in the First Congress who participated in drafting the Second Amendment probably viewed their role as affirming that the federal government was committed to preserving the institution of the citizen militia- that Congress would not abuse its Constitutionally granted power over the militia. That's why Gerry was so alarmed about the possibility of the conscientious objector clause being used as justification to exclude anyone from the militia. He did, however, support a conscientious objector clause that was more limited in scope.
My wife never served in the militia, even when I did. I wasn't allowed to bear arms when I served in the militia. Were my rights infringed?
You are not asking the right question. The right of the people to keep and bear arms is not necessarily infringed just because one person does not participate in the exercise of that right. "The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually. And it uses a distinctly military phrase: 'bear arms.' " -Akhil Reed Amar
where did the federal government get such a power. an infringement is any INTERFERENCE with the right to Keep and bear arms. Its a negative restriction on the federal government. BM members pretend that if you can own ONE TYPE of gun, then the federal government does not "infringe" on your right by banning a bunch of other guns. That is a moronic argument because the power of the federal government to ban guns does not suddenly become possible merely because there are other types of firearms available.
I know Akhil Reed Amar. Akhil Amar is a good friend of mine. You sir, are No Professor Amar. and He has stated in a lecture to the Alumni at Yale University, last May, that it is an individual right and your interpretation of what he says is incorrect. You see, at one time Akhil tried to play a fine line between his liberal background while not supporting the blatant dishonesty of the Bannerrhoid movement by claiming bearing arms was an individual right one exercised collectively (in militia service) such as JURY DUTY. However, he has admitted that its nonsensical to pretend you could have a militia without an individual right to bear arms. And he has never been able to state that the commerce clause was intended to get around the second amendment's blanket prohibition on federal action. He also has never been able to deal with the fact that the bill of rights were all intended to GUARANTEE and recognize rights the founders saw as PRE=EXISTING GOVERNMENT. how how does one recognize a pre-existing right by pretending you have to be part of a government controlled collective group to exercise it?
It was removed because it had no application there. Answering my question with a question is not answering my question. It appears to me you still have not answered my question, unless your argument is that Jack Rakove has convinced you the Bill of rights does not contain any actual enforceable rights…. Rakove, by the way, would be correct if he addressed this argument to the militia preamble of the 2nd Amendment, for that indeed is a statement of principle which does not limit in any way the right protected by the operative clause. But if you are willing to accept the nonsense that this mere “statement of principle” theory applies to the phrase “the right of the people,” then you better buy some stronger doorframes before you tell your local law enforcement it’s not your right but rather a mere statement of principle that forces them to get a warrant before they kick your door in…. But to be fair I will further explain my answer to your question. Gerry is a sideshow, pure and simple. Gun control proponents use him to attempt to define what was passed by an inference from what was rejected. It is a backwards method consistently rejected in all other forms of legislative interpretation. But they are forced to use this method because they cannot accept how the amendment—as actually ratified—was actually explained to the public. Remember (I’ve quoted it to you before) that Madison used his friend, Tench Coxe, to help explain his proposed Amendments, and this is how the 2nd was explained during the ratification push: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear private arms.” Tench Coxe, discussing the purpose of the Second Amendment in his "Remarks on the First Part of the Amendments to the Federal Constitution," published under the pseudonym, "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 Col. 1. This actually addresses—and explains—the Amendment as ratified. You may, of course, object by arguing this is only the word of one founder (even if you must concede it was widely published for consideration). I agree it is only one. So where is yours? Do you have a single founding father who looked at the Amendment as it was ratified and explains it only applies to the militia or militia arms?
And yet, we find the definition of “bear arms” to be broader that mere military activity: Surely a most familiar meaning is, as the Constitution's Second Amendment (“keep and bear Arms”) (emphasis added) and Black's Law Dictionary, at 214, indicate: “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (199 (Ginsberg, dissenting) (emphasis on the word “bear” in the quote added in original and not by me. I like this because Ginsberg was, after all, one of the political dissenters in Heller, and the definition has been consistent throughout the multiple editions of Black's) In addition, we find the Amendment reads “keep and bear” arms. "Keep" has no military connotation whatsoever. This, perhaps, is why Justice Stevens and Breyer both avoided it as much as they did in Heller. And this whole notion that the use of the words “the people” means a collective and not a personal right is the height of folly. If you accept this, then the 9th and 10th Amendments also only recognize so called “collective” rights. What in God’s name could they be? Further, the phrase “the right of the people” is found in the 1st, 2nd, and 4th Amendments. I suppose you could argue the first Amendment right to peacefully assemble must, by definition, involve two or more persons. But it also says “petition the government.” If you accept this collectivism theory of “the people,” then Congress must allow Citizens United to petition it for a redress of grievances, but it can make it a crime for you to write by yourself a letter to your congressman to complain since your theory says you are a mere “person” and not acting collectively as the “people.” The same goes for the 4th Amendment. It is the right of the “people,” not the persons. Oh go ahead, cite all you want that the Amendment also uses the word “persons,” but realize that this is used where the Amendment explains what the right actually is (freedom from unreasonable searches and seizure OF persons, papers, houses, and effect.) and not who owns the right. It is the phrase “the right of the people” which describes who this right belongs to. (Much like “the right of the people” defines who actually owns this right “to keep and bear arms.”) So if you accept this collectivism only theory, then Citizen United can object to its offices being searched and its employee’s persons being searched because it is a collective organization of “people” to whom the right is directed, but you have no right to complain when your person is strip searched or your home is invaded for a search because you are not acting collectively as a member of “the people.” This interpretation is as I said, the height of folly. This is what happens when you are unwilling to accept what the plain language means and try to bend it to fit the desired outcome. It might work for Beckham in soccer, but it most certainly does not work with constitutional interpretation (or, to put it more accurately, purposeful misinterpretation).
No, I don't believe that the Second Amendment repealed Congressional power over the militia, but the federal government was expected not to abuse its power over the militia. The Second Amendment was further affirmation of that. Rakove probably understands the Second Amendment from the Founding Fathers' point of view much better than anyone alive. I don't think the First Congress sat down and thought, "Let's write a Bill of Rights which will be enforceable by the courts." That wasn't part of their legal tradition. There is some doubt about how widely accepted Coxe's ideas were. There is no evidence that Madison endorsed Coxe's interpretation of the right. Rakove writes: "Had there been any reason for the constitutional disputants of the late 1780s to discuss, directly and consciously, the extent of private rights of the ownership and use of firearms, advocates of the individual right interpretation would certainly have filled their articles with the apposite remarks.They would not have had to pepper their quotations with the tell-tale ellipses that invite critical readers to check what has been omitted (as in the use made of The Federalist No. 46); or make preposterous claims that are easily refuted (such as James Madison's supposed endorsement of Tench Coxe's description of the right to bear arms as a private right); or suggest that the deletion of a substantive qualification of the nature of the militia ("composed of the body of the people") was an inconsequential exercise in editorial concision; or use one textual rule for defining people and another for militia. Had the framers and ratifiers of the Constitution really perceived the problem in terms of a private right detached from service in the public institution of the militia, we would know it, and the writings of Halbrook, Kates, Malcolm, and others would take a different form." http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3289&context=cklawreview "Mr. Scott objected to the clause in the sixth amendment, 'No person religiously scrupulous shall be compelled to bear arms.' He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army." http://press-pubs.uchicago.edu/founders/documents/amendIIs6.html It's clear that Scott did not view the Second Amendment as protecting a private right unconnected to militia service. How could the militia disintegrating due to too many people claiming religious exemptions constitute a violation of individual right that is unconnected to militia service?
No. The two are not related One pertains to a right held by the individual.and the other, the power of the government to regulate the militia. The former is not limited by the later. As for what constitutes an infringement... If the left believes a given restriction creates an infringement when applied to the right to free speech, the free press, free religion, the right to an abortion, and/or the right to vote, it equally infringes upon the right to keep and bear arms when similarly applied.
Even assuming all of the above is a correct and accurate assessment of history, what ultimate, meaningful difference would be made? How would such a discovery modify the rulings of the united states supreme court in the cases of Miller, Heller, McDonald, and more recently Caetano which have all affirmed an individual right to own modern firearms for legal and legitimate purposes?
No, if this is his understanding the he is the most singularly uninformed man alive—for this was in fact the most universally read and best understood legal tradition which existed at the time. The alpha and the omega of legal textbooks of the revolutionary era, the one that reduced the common law into a language all could understand, the one all the founders will familiar with, the one that for decades had been the legal treatise which every law student in America consulted starting from their first year of law school, said this about constitutional rights: And we have seen that these rights. . .consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights. To preserve these from violation, it is necessary that the constitution of parliaments be supported in it(s) full vigor. . . .And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly, to the right of having and using arms for self preservation and defense.” Sir William Blackstone, 1 Commentaries on the Laws of England, p. 136 & 140 (1st. ed. 1765, reprinted 1979). Here Blackstone is talking about the individual rights listed in the English Bill of Rights of 1689—the same document, by the way, which was cited repeatedly by our founders. Our founders absolutely understood that the word “right” referred to something belonging to the individual which could be enforced by our courts. To argue otherwise is to claim that no enforceable rights exist. Do you see how dangerous this is? When the government chooses to invade your home any time they want, and while inside tries to force you and your family to pray to a deity they have chosen for you, then you have no recourse but to comply. Indeed, if you try to speak up against it you can be arrested and subjected to cruel and unusual punishments because these are only unenforceable principles which depend for their existence—to the extent that they exist at all—on the unrestrained forbearance of your leaders. Now if you have a dispute with your neighbor over the boundary of your property, then the courts will listen and adjudicate that property right, but if you go to them to “vindicate these rights” in the Bill of Rights, you will be told, like Aragorn, that “the way is shut.” Finally, what this really means is the judicial branch has engaged in a long, slow campaign of usurpation of a power it was never intended to have. I hope, for the sake of Rakove’s credibility, that this is not what he believes. There is absolutely no doubt his view was far more widely distributed than those which explained the amendment as adopted was only intended to protect militia arms from congressional domination—for this is an explanation that never was. At least Rakove admits Coxe’s explanation was explicitly one of an individual right. Where does Rakove cite Madison rejecting it? Where is the “hold on friend, you got it all wrong” letter? At best Madison endorsed it. At worst, he read it and tolerated it. Neither position helps the “militia only” interpretation. It would not. But implicitly tying the RKBA to militia duty by the inclusion of a religious objector clause could allow Congress to assume the position that all arms exist solely for the benefit of the militia, and are therefore under its control This would lead to a violation of “another article”—the individual RKBA. (There now, see how even he separates militia service from the individual right). This is the crown jewel of the militia only argument. And what is it? A rejection of an explicit explanation of the amendment so that we can engage in speculation about legislation that never was. In short, if we are going to ignore direct evidence in favor of speculating about the lack of negative evidence then I believe my imagination will prove as fertile as Rakove’s. Is it your position that Scott’s misapprehension about the amendment, or our misapprehension of what he was saying, is persuasive in the mere lack of contradiction by other founders?
Some of Rakove's thoughts on the matter- "Our quest to discover a perfect syntax and vocabulary for its twenty-seven words thus risks ascribing to a general statement of principle a measure of legal exactitude it was never conceived to carry.... "A bill of rights, in this view, was more a political than a legal text. It was precisely because declarations of rights, of the kind that accompanied many of the early state constitutions, could so be read that Madison originally proposed to 'interweave' his amendments with the text of the Constitution. Adopted in that way, they would act as explicit restrictions affecting particular institutions of government; their legal authority would become more precise and explicit, thereby enhancing the security afforded to rights. Conversely, framing the amendments as supplemental articles, Madison warned, would make it 'difficult to ascertain to what parts of the instrument [the Constitution] the amendments particularly refer.' 3 4 But that, of course, was exactly what Congress ultimately preferred to do. In taking that course, however, the majority arguably still shared the dominant conception of 1776 which viewed a bill of rights as a statement of principles affirming the existence of particular rights but not clearly delegating responsibility for their enforcement or protection to any institution.... "The state declarations of rights of 1776 were filled with statements of this nature, and many of these statements-and arguably the bills of rights in toto-lacked legal authority. A statement endorsing the principle of rotation in office did not impose term limits on legislators; it simply reminded voters that they would be well advised, from time to time, to send the bumpkins back to the country. To be sure, it was precisely because such statements had demonstrated their 'inefficacy' that Madison first dismissed bills of rights as so many 'parchment barriers,' 148 and then proposed interweaving his amendments in the most salient places in the Constitution, rather than see them appended as supplemental articles.... "By the same token, while the Second Amendment generally endorsed the value of a well-regulated militia, as a mere statement of principle it made no alteration of any kind in the delegation and allocation of legislative authority in Article I." http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3289&context=cklawreview When were the Bill of Rights first enforced by the courts? I view what Coxe thought as of secondary importance. He wasn't part of the First Congress that created the Bill of Rights. His opinion is the opinion of one individual. Scott was distinguishing between a right and an exception to that right- that's what he meant by "another article". His fear was that if the exception was too broad then it would lead to a violation of that right. Exempting people from militia service because of religious beliefs would not lead to a violation of an individual RKBA unconnected to militia service. Thus, his comment only makes sense if he interpreted the RKBA as being connected to militia service. Of course, the best direct evidence is the wording of the Second Amendment and the commentary on it in legislative bodies. The second part of the amendment would arguably be ambiguous (because of its use of the term "bear arms") but paired with a clarifying preamble about the militia I don't think there is any ambiguity. There was never any mention of arms being used for other purposes besides militia service in the First Congress. There sole concern was that the militia be functioning and be armed.
Why don't we arrest and convict felons now? Wouldn't that actually be more common sense than unenforceable, ineffective laws? Does overturning Heller also overturn Cruikshank, Miller or Caetano?
what part of the constitution does he claim empowered the federal government to interfere with the arms private citizens choose to keep and bear. The BM members never ever want to deal with that. They try to parse and dissect the second amendment in an illogical and dishonest attempt to pretend the second amendment does not recognize an individual right (which is incredibly stupid given the founders' belief that the bill of rights merely affirms rights man had from the dawn of time) but the same BM members never want to tell, how in God's name, does "Commerce among the states, mean a power to control what private citizens do in their own sovereign states. and the BM members NEVER EVER want to deal with those two complete and utter destructions of their idiotic constitutional misinterpretations
