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modulate our understanding of the Second Amendment

This is a discussion on modulate our understanding of the Second Amendment within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Good LTE Commentary on gun rights errs in several ways - Roanoke.com Commentary on gun rights errs in several ways Re: "Gun rights should apply ...

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Thread: modulate our understanding of the Second Amendment

  1. #16
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    Good LTE

    Good LTE

    Commentary on gun rights errs in several ways - Roanoke.com

    Commentary on gun rights errs in several ways

    Re: "Gun rights should apply to the general good," May 15 commentary by Lawrence Reid Bechtel:

    The writer makes the same false assumption made by most non-lawyers and non-constitutional scholars that the Bill of Rights confers certain rights. The Bill of Rights confirms certain rights contained in the Constitution and common law. In other words, rights we already have as citizens.

    Likewise, he errs in that he does not recognize that the militia clause is a preamble to what is "the right of the people," in this case, the right "to keep and bear arms." "The right of the people" also appears in the First and Fourth amendments. The 10th Amendment also mentions "the people." Only a fool believes that the framers meant that the people meant individuals three times and a collective in another.

    His attack on the Heller decision sinks low in trying to make his point. One can only wonder if he has read Heller, much less understands the legal reasoning. The decision has been made, and Bechtel needs to get over it. The decision is what the law is and has always been. As President Reagan often said, "We win, you lose."

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  2. #17
    Senior Member Array Divebum47's Avatar
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    Some food for thought

    "mi·li·tia
    Pronunciation: \mə-ˈli-shə\
    Function: noun
    Etymology: Latin, military service, from milit-, miles
    Date: 1625

    1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service

    2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service

    mi·li·tia
    Pronunciation: \mə-ˈli-shə\
    Function: noun
    Etymology: Latin, military service, from milit-, miles
    Date: 1625

    1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
    2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service
    "

    Perhaps the writer should take a look at a couple of key words in his "lecture."

    For me, what it boils down to is 1) an acceptable definition of "militia" and 2) a literal definition of "modulate," and 3) the last clause of the Second Amendment, and 4) his very loose interpretation of the word "right" and it's application to the Second Amendment - which does nothing to grant a right, but serves to reinforce the rights granted by the Constitution.

    I'm not smart enough to interpret for everyone, but I am responsible enough to research and interpret for myself.
    "Never underestimate the power of stupid people in large groups"

  3. #18
    Senior Member Array press1280's Avatar
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    Although the author does bring up a few good points, he's trying to sell the 2A as yet again, a "collective" right. Heller said that,"it is not the role of this court to pronounce the Second Amendment extinct." a collective Second Amendment would have basically made it worthless, as no one would have standing to sue for a 2A violation.
    He's also making another "blood in the streets(or in this case restaurants that serve alcohol)". All the antis arguments like to bring up police chiefs objections, but maybe he should point out the chiefs in FL and Texas are eating their words after the success of shall-issue in those states.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

  4. #19
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    He may be incorrect in rooting his opinion in this particular reading of the 2nd Amendment, but his over-all conclusion is the same as the Court's in Heller. The Court was careful to explain what was unconstitutional and what was not - as regards its judgment. And it enumerated quite a few examples of the latter - all of them gun regulations - including regulations of CCW, and, in fact, CCW itself.

    It did not find that the 2nd Amendment was an absolute right but a basic right. And the 2nd A. was treated by the Court as all other Amendments are: basic rights that stop the government from going beyond a certain point, but allow it - (and "it" refers to the government as protector of other rights that its citizens also enjoy) - to regulate and modify the practice of any of these basic rights/Amendments before that point is reached.
    (The "Shouting-'Fire!'-in-a crowded-theater" metaphor in the case of Free Speech, e.g.).

    Thus, while the policies of D.C. towards guns fundamentally infringed on the basic right to bear arms, a locale running background checks for prior criminal activity when an applicant applies for a pistol license would likely not infringe on that right. In fact, making that practice unconstitutional would infringe on the rights of all citizens in that locale to be safe and secure in their daily lives.

    This is the conclusion - however flawed you might think his reading of the 2nd A - that the essayist quoted arrives at. And it is about the same conclusion Heller arrived at.

  5. #20
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    Evidently the author is a poor student of history; he ignores the fact that many legal treatises have been written reaffirming the fact that the Bill of Rights is more about individual liberties than collective ones; that is part of what Heller clarified....
    "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined". - Patrick Henry

  6. #21
    VIP Member Array SpringerXD's Avatar
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    Let me sum the above article up in one paragraph:

    "I'm an over-educated liberal moron who has no clue about what the Founding Fathers really meant when they framed the Bill of Rights. I'm thinking that if I sound 'scholarly' enough, you'll let me think for you and thereby swallow my BS hook, line, and sinker."

    And might I also add, Blah, blah, blah....
    "I practice the ancient art of Klik Pao."

    -miklcolt45

  7. #22
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    I am getting so sick and tired of that militia argument crap that these liberal morons peddle out. They seriously expect people to believe that the 2A is the only collective right in a bill of rights full of individual rights. They are blatant liars and hypocrites and should be listened to by no one.

  8. #23
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    My LTE Published...

    in the Roanoke Times, finally.

    It's very similar to the blog entry but had to be changed a bit to meet word count limit for a LTE.

    http://www.roanoke.com/editorials/letters/wb/247433

    Tyrants also want to alter rights

    Re: "Gun rights should apply to the general good," May 15 commentary:

    Lawrence Reid Bechtel provides insight into his core values and at the same time undercuts his argument with, "Yet few -- if any -- of the many reasons I hear given for the defense or expansion of gun rights are related to the general good or the security of a free state."

    The Bill of Rights is not about the general good or the security of the state. The Bill of Rights is about protecting individual citizens from governmental infringement in a number of areas. The Bill of Rights is a declaration of fundamental rights of the people, of the citizens, of the individuals -- not a list of privileges to be granted, modulated or withdrawn by the state.

    The Supreme Court of the United States has declared these fundamental rights and other fundamental rights are protected from governmental infringement.

    Bechtel's idea of revising or modulating any of the fundamental rights for general good or the security of the state is the same catch phrase tyrants use. It is the same justification which fascist, communist and other dictators use to sell a bill of goods to their subjects.

    I'll stand for a bill of fundamental rights of citizens over a bill of goods of tyrants.

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    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  9. #24
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    Nicely done!
    I prefer to live dangerously free than safely caged!

    "Our houses are protected by the good Lord and a gun. And you might meet 'em both if you show up here not welcome son." Josh Thompson "Way Out Here"

  10. #25
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    RT Op Ed Rather bland mostly Grammar based reply...

    to May 15 opinion piece "Gun rights should apply to the general good," -- nothing about the meaning of "the people" in all BoR, nothing about The BoR confirming basic Rights not establishing Rights, nothing about the BoR not about the needs of State but it is all about the rights "the people."

    No conditions on Second Amendment - Roanoke.com

    No conditions on Second Amendment

    Rick Surratt

    Surratt is retired and lives in Salem.


    The May 15 opinion piece "Gun rights should apply to the general good," by Lawrence Reid Bechtel, prompts me to respectfully disagree with his views on the meaning of the Second Amendment and his proposed future course for gun rights.

    Specifically, his interpretation that the right to keep and bear arms applies only as an adjunct to the need for a well-regulated militia does not comport with an objective reading of the language.

    As he quotes it, the Second Amendment provides: "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." Given the overall context of this amendment and the unconditional nature of our Constitution generally, the introductory phrase referring to the need for a well-regulated militia more convincingly appears to have been merely an expressed premise, not a precondition, for the substantive right to keep and bear arms.

    Thus, the Second Amendment conveys essentially an unconditional "right of the people" that "shall not be infringed" regardless of any changing circumstances or convenient excuse. No exceptions to this right were tacked onto it.

    Moreover, while there may currently be no need for a militia, as such, and may very well never again be, that is not a certainty. Also, it would seem that the issue of whether there is a need for a militia would always be a political, rather than a legal, question, the answer to which courts could not decide or assume as a given.

    It is arguable that the Second Amendment necessarily presupposes or presumes an ongoing potential need for a militia -- even if not always an immediate one -- as its wording expressly proclaims.

    Regardless, the operative language in the amendment is its positive command, which stands timeless and permanent, that is, "the right of the people to keep and bear arms, shall not be infringed." This imperative is a clause, not an interdependent phrase, as Bechtel characterizes it. No part of the Bill of Rights is temporary, comes and goes with circumstantial fluctuations, or expires with shifting sands.

    Contrary to Bechtel's suggestion, there is no need to contrive some new, current societal utility in the right to keep and bear arms to justify honoring and upholding it.

    Our Constitution is a foundational document that is inviolable unless changed according to its own terms, terms that opponents of gun rights grudgingly cannot meet.

    Though constitutions and statutes are necessarily somewhat abstract and therefore sometimes in need of judicial interpretation and practical application, they cannot legitimately be interpreted or applied in such a way as to negate or defeat their essential thrust and purpose.

    To make the right to keep and bear arms contingent upon an ever continuous need for a militia would, for all practical purposes, render this cherished part of our Constitution temporary and superfluous.
    Wonder why they posted his not mine?
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    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  11. #26
    VIP Member Array zacii's Avatar
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    Quote Originally Posted by DaveH View Post
    to May 15 opinion piece "Gun rights should apply to the general good," -- nothing about the meaning of "the people" in all BoR, nothing about The BoR confirming basic Rights not establishing Rights, nothing about the BoR not about the needs of State but it is all about the rights "the people."

    No conditions on Second Amendment - Roanoke.com



    Wonder why they posted his not mine?
    They posted his, because it's more politically correct. He argued the logic based on grammar and reading comprehension.

    Yours was not. Your reply was based on the principle, on which the amendment was drafted.


    The truth, without dilution, is indigestible to many.
    Trust in God and keep your powder dry

    "A heavily armed citizenry is not about overthrowing the government; it is about preventing the government from overthrowing liberty. A people stripped of their right of self defense is defenseless against their own government." -source

  12. #27
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    Over and over again I see the word "liberal" applied to anyone who is against gun rights. It's right here in this thread as well as sprinkled around many others.

    This is not only counter productive but insulting to the gun owning liberals who want more gun rights, or might want to own one themselves. It might be similar to saying all conservatives want more gun violence, and then repeating it over and over right in their faces. It makes it much more difficult to work with those that have a common interest. It attempts to categorize and weed out a group, with far to general of a statement.

    As long as the gun rights struggle is vocalized by those that claim they can categorize and know the intentions of ALL people of the political spectrum, by those that want to win be dividing, even amongst those with similar views, the movement will be hobbled. When someone equates liberal with anti gun, anti America and anti 2nd amendment, they are preaching to the choir on one hand and making enemies on the other.

    Get over the divisive labeling that does not address the core issue, and stay on message! The message is gun rights. If you want to talk about an individual who is against gun rights, address the isssue of gun rights and not with a label that has nothing to do with it. The issue is history, statistics, tradition, interpretation, etc. It's about dispelling unfounded fear and dispelling illogical responses to that fear. It's not about insulting those that can be on your side. It is about education and not about illogical labeling. Unfortunately it is a frustrating struggle that requires us to be effective. That's what democracy is all about.

    Those of us that want increased gun rights need all the friends we can get. We need then to come from all walks of life and from all points of view. We think we are on the right side of the issue and we want others to see our points. They'll see it more clearly if we stay on message.

  13. #28
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    DaveH, I enjoy reading your opinions and posts. However, I do get tired of seeing the Roanoke editors articles. That paper is staffed by fools with little to no understanding of America or its history.

  14. #29
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    I have always looked at Federalist 46 for my interpretation of the 2nd amendment, written by Madison. It says:
    The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

    The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people."

    As I read this, and was taught in school, the citizenry of the country has arms in order to keep the federal government from running amock and trampling our rights. We need the arms because the government, by its nature, has to have a militia. The founders knew that government, by it's nature, becomes oppressive. There was a time when Americans were happy under England. When that changed, we overthrew the government with force.

  15. #30
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    The PA Constitution predates the U.S. Constitution & it's quite clear there.


    The original 1776 PA Constitution:
    XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

    Later revised to:
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~
    Right to Bear Arms
    Section 21.
    The right of the citizens to bear arms in defense of themselves ....and the State shall not be questioned.

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