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Hardliner4freedom - > Starship Sigma +5 -> The Second Amendment: Individual Right and Liberty Teeth
The Second Amendment: Individual Right and Liberty Teeth
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
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Does the Second Amendment to the Constitution, the right to keep and bear arms, reflect an individual right, or merely the right of the militia?
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The answer is the former, with a spotty yet pretty consistent trail of Supreme Court and state Supreme Court case law to back it up.  
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I will also show that our Second Amendment rights are most secure under a consistent application of liberal Constitutional legal theory, and are most jeopardized by the ultraconservative theories of the judges that President Bush wants to place on the federal bench.  And, I will show that our Second Amendment rights depend upon a presumption of the human species that is most consistent with a liberal, humanistic worldview.
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Intent of the Founding Fathers
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The most obvious indication that the Second Amendment was intended as an individual right is the fact that every other phrase in the Bill of Rights that refers to rights of the "people" was written and intended to refer to individuals.  The Second Amendment is deeply embedded in the portion of the Bill of Rights that guarantees individual rights, rather than perhaps tacked alongside the Tenth Amendment, where it might be construed to be strictly a state right.
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During the ratification of the Constitution, the state of New Hampshire made the official recommendation that "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion."  At the Massacusetts ratifying convention, Samuel Adams urged an amendment guaranteeing the individual right to bear arms.  New York, Rhode Island, and Pennsylvania likewise called for a specific protection for the individual right to firearms.
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Early Court Rulings Assume Individual-Rights Interpretation
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Prior to the Civil War, many state court rulings clearly reflected the assumption that the right to keep and bear arms was an individual right rather than merely a states-rights issue or a state militia privilege.
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In Aldridge v. Commonwealth (1824), an appellate court in Virginia dealt with the rights of free Blacks, the restrictions upon which were "inconsistent with the letter and spirit of the Constitution, both of this State and of the United States," including "their right to bear arms."
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In Simpson v. State (1833), the Tennessee Supreme Court said of the state constitution's equivalent of the Second Amendment, "By this clause of the constitution, an express power is given and secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature." [Italic emphasis mine.]
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In State v. Reid (1840), the Alabama Supreme Court upheld a ban on carrying concealed guns and knives.  However, the ban was upheld on the assumption that the right to keep and bear arms was an individual right:  "The evil which was intended to be remedied by the provision quoted [the right to keep and bear arms], was a denial of the right of Protestants to have arms for their defence, and not an inhibition to wear them secretly."
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And in Nunn v. State (1846), the Supreme Court of Georgia referred to the Second Amendment in reversing the conviction of a man wrongfully charged with openly carrying a firearm: "inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void."
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The Supreme Court Weighs In
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The Supreme Court has had surprisingly little to say about the Second Amendment.  Some of what it has said should come as a stern warning to today's demands for appointing more "conservatives" to the federal courts.
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In Cruikshank v. United States (1876), a conservative Supreme Court mirrored today's most extreme "conservative" legal thought in holding that the Second Amendment (and the rest of the Bill of Rights) only restrained the federal government -- states were free to restrict or ban firearms to their hearts' content.  But even Cruikshank considered the Second Amendment an individual immunity rather than a mere collective militia-based right asserted by some liberal scholars.
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Presser v. Illinois (1886) reached the same conclusion, holding that the Second Amendment only restrained the federal government.  Yet Presser, as well, considered the amendment to be an individual immunity of some sort.  Had the amendment represented only a collective militia right, the plaintiff would not have found standing to lodge a Second Amendment complaint.
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In both cases, the Second Amendment was indeed considered an individual right rather than a militia or state right.  The cases merely ruled that the the amendment only shielded individuals from the federal government.
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Even the infamous Dred Scott v. Sandford (1857) case observed that if Blacks were considered citizens, it "would give to persons of the negro race... to hold public meetings upon political affairs, and to keep and carry arms wherever they went."  The right to keep and bear arms was seen as an individual right.
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And while United States v. Miller (1939) examined limitations on what kinds of arms could be restricted, it lends support to the view that the collective role of the militia arises from the individual right to keep and bear arms: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
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The Second Amendment and Liberal Constitutional Theory
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The architect of the 14th Amendment, Rep. John Bingham of Ohio, in the first session of the 42nd Congress (March 29, 1871), listed the first eight amendments of the Bill of Rights, as being the rights of individual citizens.  Moreover, he stressed, in no uncertain terms, that the Privileges and Immunities clause of the 14th Amendment rendered the Bill of Rights binding upon the States:
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"These eight articles I have shown never were limitations on the power of the States, until made so by the Fourteenth Amendment.  The words of that Amendment, 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' are an express prohibition upon every State of the Union."
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The Second Amendment was counted among those rights of the citizens of the United States.  
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(As an aside, the fact that the conservative court that issued the Presser decision had twisted the 14th Amendment into something far narrower than its author intended -- shows that ultraconservative judges are the ones with the activist agenda, much moreso than "liberal judges.")
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Today, far right legal theorists -- like those favored by the Bush Administration -- want to tear down the Bill of Rights as it applies to states.  When you realize that most gun bans and gun restrictions come from the state and local level, the ascendance of "conservative" judicial theory within the federal judiciary would effectively spell the end of your Second Amendment rights.
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Dangers to our Second Amendment rights have been justified by other legal tricks and ruses routinely advocated by "conservative judges."  In Robertson v. Baldwin (1897), the court used the fact that "protecting public morals" has been used to justify exemptions to the First Amendment, to itself justify encroachments upon the Second:
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"Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons..."
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In other words, be careful what you ask for.  If you want to see judges appointed who will declare arbitrary and poorly founded reasons to curtail freedom of the press, those same judges will likely devise poorly founded excuses to curtail your gun rights.
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The Second Amendment's Humanistic Worldview
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Finally, it's worth pointing out that the Second Amendment is consistent with a liberal, humanistic vision of human nature.
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It might seem, at first, that the right to own firearms is necessary because of the evil element in society, thus an emphasis on the dark side of human nature.
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However, what the Second Amendment actually assumes is that the evil element is a small minority.  It assumes, much to the contrary, that the great majority of Americans can be trusted to own deadly weapons and use them responsibility.  
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In other words, the Second Amendment assumes the inherent goodness of the vast majority of human beings -- a thoroughly humanistic worldview.
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Moreover, it's easy to conclude that if the Founders felt that the great majority of citizens could be trusted to own deadly force, then those same citizens can likewise be trusted to make every other life decision responsibly, whether what books to read, whom to sleep with, or even using marijuana.  If we can be trusted with deadly weapons, it follows that we can be trusted with liberties of less gravity as well.
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The greatest statement in favor of human freedom of choice may be -- of all things -- the Second Amendment.
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posted by Hardliner4freedom on Saturday, November 18, 2006 at 01:33 PM
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1

posted by dusty1215 on Nov 18, 2006 at 11:40 AM
We all need the right to arm bears. :)
posted by Hardliner4freedom on Nov 18, 2006 at 01:49 PM

Bears or people, I'll wager that this is a pro-Second Amendment argument that comes with an insight that nobody here has seen gleaned from it before.  :-)

posted by anonymous on Nov 18, 2006 at 05:02 PM
Get over it, second amendment rights  are great as they are, everyone loves and needs well regulated miltias as we have taught our new protoges' in Iraq,

Someday when more American's get second amendment savy we will have many militias except that this time around when Blacks form well regulated militias like the old Black pather organization they will not be called terrorists by the government.as they will have plenty of company. The white militia, the Asian militia, and the Christian militias will form one block, while the Hispanic militia, the Black militia, and the Atheist Militia will form another block, and the independent Muslim and Midlle_Eastern militias will work both sides. It will be a very exciting time, just as the militias make life better for Iraqis in Iraq today, they will make life better for us at home.

Ah, life as it should be, everyone should own at least one gun and join at least one militia!!
posted by djntwk on Nov 18, 2006 at 10:29 PM
Long story. short.  The intent was to allow the people to be in charge of the government.  If the government were to become oppressive against the people, the people have the ability to fight back.

The people, additionally, retain the ability to fight on behalf of the Union, by retaining the right to bear arms.  If you saw the movie, "Red Dawn" or are watching the series "Jericho," perhaps you understand the importance of this aspect.

Personally, I feel that an armed citizenry is an excellent deterent to crime.  Many crimes take place, because criminals (who will arm themselves in spite of any laws to stop them) prey on unarmed citizens.  

Please think back to recent times when drive-by shootings, road rage shootings, and on-road snipers terrorized communities.  If the intended victims were all armed, how successful do you feel these activities would have been?  

If the half-dozen people on the sidewalk suddenly fired back upon the drive-by car, how long would it be before people would stop engaging in this form of terrorism?

I do not advocate duels in the streets, although I am sure that Kern County history is replete with such episodes, however, I do feel that the best defense is a good offense, and those who are eligible and responsible, should ABSOLUTELY EXERCISE their right to bear arms (not bare arms, not arm bears).
posted by Hardliner4freedom on Nov 19, 2006 at 08:30 AM

Yes.  I have heard people pooh-pooh the idea of the citizenry resisting an oppressive government with comments like "do you really think your little popgun will hold off the government and all of its military gear?"
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I have a one-word answer for that:  Iraq.
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I'm not trying to say that our troops aren't equal to the task over there, but we sure could make life awfully difficult and painful for a government that would try to oppress us.  Enough to think twice, at least.

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That's partly why I blended in those little warnings.  A lot of people who value our Second Amendment rights are unaware of the dangers posed by (what they think is) their own political side.  It has been infiltrated by an extremely oppressive element that would hesitate little to turn on its own citizens.
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It's true that there are some hypocrites on the other side, such as the way-out-there 9th Circuit judge Stephen Reinhardt.  His reading of the Establishment Clause of the First Amendment is so broad and hard-line that "under God" in the Pledge of Allegiance violates it -- yet he doesn't see the Second Amendment as any individual right at all.
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But the alternative is much worse, judges who will hold the entire Bill of Rights inapplicable -- taking the Second Amendment along with it.
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A balanced Constitutional theorist would recognize that the militia clause of the Second Amendment is the well-regulated aggregate of the individual citizens' natural rights to self-defense.  The common defense is the collective orchestration of the individual right to self-defense.
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Strictly speaking, you don't need that Second Amendment to derive a right to keep and bear arms under the natural-rights philosophy embraced by many of our Founding Fathers.  The fact that self-defense is a natural right is enough.
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But it sure is nice to have it in there to serve as an underline and an exclamation point.

posted by TomW on Nov 19, 2006 at 09:26 AM
Well put together, H4F.  I think we really are starting to move back to a government that works for people with a liberal social philosophy and a conservative fiscal policy.  Your piece though does turn around some of the assuptions a lot of people have about what it means to be liberal.
posted by Glocker on Nov 19, 2006 at 01:25 PM

Hardliner, very thoughtfull piece. I just got in and did a quick read, but you make arguments that must be pondered.

posted by Hardliner4freedom on Nov 20, 2006 at 09:16 AM

Thanks.  It's time to "think outside the ammo box," so to speak.  ;-)

 

posted by mattloch on Nov 20, 2006 at 11:56 AM
Hardliner, I'll ignore the blatantly racist comments made by the SCOTUS in the Dred Scott decision (next thing you know, those uppity negros will want to marry our fine upstanding white women!), and make a few comments on the other points. The Second Amendment is one of those "throwback" Amendments, designed in response to what the Founding Fathers took as greviances against the British throne (similar, in fact, to the 3rd Amendment). Back then, there was no standing army (in fact, many Founding Fathers saw a standing army as a direct threat to a democratic government), so defense fell squarely on the shoulders of the citizenry of the nation. Additionally, firearms were required for hunting, an important source for food as well as revenue for the average citizen. The firearms of today are nothing like the ones from then, and the rights of today should be measured against such changes, just as changes in communications today (television, email, etc.) must be analyzed against the 1st Amendment. The "standing army" is where those rights can be seen as paramount (doubly so with the "National Guards"). I do not believe, as djntwk states, that modern weapons gives the average citizen the ability to "fight back" against the government (I ignore and discard the "Red Dawn" scenario as unlikely, and to be handled by the standing army and National Guard). The government has access to F-16s, napalm, M1A1 Abrams tanks, 120mm howitzers, and nuclear weapons. If the government wants to, it'll kick your butt, armed or no (with Waco and Ruby Ridge as recent examples). Armed citizenry may be a deterrent to crime, but with their example of a half-dozen people firing back from the sidewalk opens the possibility of much greater "collateral" damage from flying bullets, to say nothing of the fact that it would do nothing to the person (target) shot first. It has also been shown that armed people are much less likely to comply in a criminal situation, making a gun battle much more likely, as well as deadly. The sniper attacks in D.C. (and I believe freeways in Ohio?) recently could in no way have been countered by an armed citizenry. I believe that limits can be put onto the 2nd Amendment, just as they are with the 1st (libel and slander, "fire" in a theater, incitement of violence, "hate" speech, etc.). This may be an "individual right", but that doesn't remove the ability for the (federal) government to regulate it. The 2nd explicitly mentions regulations as being part of the "right", so the question then becomes "how do we regulate it?" That's where the legislative branch need to deliberate, and put such issues into the record (so that the courts can have a clear picture of legislative intent). The problem is that groups like the NRA don't want any discussion, fearing (perhaps rightly so) that once it is put on the table, it is no longer a question of "regulation or no", but instead "how much regulation is enough". The only case you mention to have been deliberated by SCOTUS in the past 100 years (US v Miller) upheld the regulations of the civilian gun market, and basically said that if people want to own firearms, they should join the military. If you believe that the Founders would have supported unregulated and unrestricted access to modern (or future) firearms, that is certainly your right. But I think that of all the rights enumerated in the Bill of Rights, the FF would have a decidedly different opinion if they could even have imagined what man has invented in the intervening 200+ years. Sure, we'd be better off if we all had a few acres to farm, as Jefferson intended, or any of the other "ideal" pursuits they had in mind. But I have read more cases for than against regulations, from the FF point of view. Certainly if you ask Constitutional scholars, or FF specialists, (instead of those working within the gun control "field") regulations would certainly be backed up more than shot down (so to speak). Your points are certainly valid, but I believe that there is much to be desired in terms of regulations being Constitutional.
posted by cando on Nov 21, 2006 at 01:19 PM
I will show you my militia, if you show me your militia

Don Rumsfeld
posted by motopoet on Nov 21, 2006 at 06:30 PM
I wear short sleeves often just to prove to the world that I have the right to bare arms! I also own a nice little arsenal to face down any people who are well armed because they do a lot of curls at the gym.
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