This is a discussion on Constitution Discussion...Living or Not? within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Originally Posted by edr9x23super To me it boils down to this: 1) The Bill Of Rights is inviolate and non-negotiable; those who would negotiate those ...
The Bill of Rights has been a source of contention since the beginning. As you suggest, it is used to define the rights we have allowing the government to infringe in areas that should be of no concern. The Bill of Rights serves no purpose whatsoever since what it proportedly protects was already protected by the limitations enshrined in the original document. The Bill of Rights is superfluous and adds nothing.
Further, some do not even understand that it is only a prohibition on the Federal government. The words "Congress shall make no law" are so plain and obvious that a fifth grader could explain its meaning. Yet, some think its scope is expanded because they don't like the idea of united sovereign states, as the Founders intended. And even that misguided idea continues despite the opinions of the highest Court in the land. Barron, Slaughterhouse, Cruikshank, Adamson and common sense correctly describes what a grade school student would recognize: the Bill of Rights applies only to the Federal government.
We fought a war over this issue. The question that compelled the United States to make war on Virginia was whether the states get to decide what constitutes "property" within their own borders. Admittedly a bad issue to be arguing. But the result was that the United States won the war, and now owns the Constitution by right of conquest. It means whatever they say it means.
I'm a Constitutional fundamentalist, myself, but like my Dad told me about green beans, "you're not required to like it."
Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com
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Who is the author of the first? That was an outstanding article.
HERE for the total article and further 2A discussions. I apologize for not including that in the OP, I thought I had copied the header, but obviously not. He has some very interesting views and I encourage all to read.
Living, but only in a very limited way. For example, the BoR provides that we should be secure in our papers. It says nothing about hard drived, web sites, or distributed 'cloud' storage. Somebody, and in practice this generally ends up being a court (rightly or wrongly), has to decide whether these new technologies then unknown fit into the existing model or not. One can not simply point at the Constitution and say, "Yep, there's the magnetic storage clause." Generally, we are best off when we fit new issues into the existing parameters, rather than trying to make new rules out of whole cloth.
(In the case of computer storage, one ought probably argue that your personal hard drive provides you with an expectation of privacy, covered the same as personal papers, but that putting something on Google Documents does not, as you have given your property into the hands of a third party without the legal obligation to maintain confidentiality.)
Oddly enough, I am a big fan of Miss Manners, and I find a good parallel in how she constantly manages to fit new things (like cell phones) into the 'old' rules of etiquette, even while all the yammering masses insist that this new thing does entirely away with the old rules, because those stuffy old Victorians never thought about cell phones!!!
No, but the Victorians knew something about politeness, if not cell phones, just like the Founding Fathers knew something about personal liberty, if not hard drives...
“What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia
SIG: P220R SS Elite SAO, P220R SAO, P220R Carry, P226R Navy, P226, P239/.40S&W, P2022/.40S&W; GSR 5", P6.
Another of my web crawler finds. This one from Michael Steven Green on PrawfsBlawg
What is the Purpose of the Second Amendment?
Under the collective-right interpretation, the Second Amendment exists to allow states to create organized militias, as a bulwark against federal military power. But in District of Columbia v. Heller, the Supreme Court embraced the idea that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. My question is – what are these interests?
I do not think this question was answered in Scalia’s opinion in Heller (although I’d be happy to be convinced otherwise). It is not enough to say, as Scalia does, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.
Consider, for example, the following argument for a right of self-defense: The impulse to engage in self-defense in cases of imminent violence is so strong that if self-defense were prohibited by the government, people would defend themselves anyway. No threat of sanction is sufficient to stop people from defending themselves. Since a government can require people to do only what they can do (ought, as they say, implies can), the government cannot require people to refrain from self-defense.
One nice feature of this argument is that it suggests that the right (or, more accurately, the excuse) of self-defense is inalienable: I cannot promise to refrain from engaging in self-defense when faced with imminent violence, because I know I will be unable to abide by my promise when I’m threatened.
But there is no reason to think that this inalienable right of self-defense justifies a right to bear arms. To be sure, people probably have an overwhelming impulse not merely to engage in self-defense, but also to grab whatever weapon is at hand to defend themselves. So the government probably should excuse anyone who, in the course of self-defense, uses a weapon lying nearby (or, like MacGyver, creates a weapon on the spot). But that does not mean that the government must excuse people for keeping weapons for use in self-defense. After all, it is not true that our impulse to possess weapons is so great that no threat of sanction would lead us to give them up. People can be coerced to disarm. So there is no relationship between this right of self-defense and the Second Amendment.
Of course, there may be arguments for other rights of self-defense that could justify a right to bear arms. The problem with the justification above (which is the second that I discuss in my article) is that the right of self-defense is unrelated to the protection of innocent life. Self-defense is protected only because the impulse to engage in it is overwhelming, not because it makes us safer. A right of self-defense that is tied to safety, one might argue, can justify a right to bear arms.
I’ll discuss the safety argument for the Second Amendment in later posts. But it is a striking fact that Scalia’s opinion does not answer the fundamental question of whether the Second Amendment protects our interest in safety or an autonomy interest that is valuable even if its protection increases our vulnerability to violence. (At least I cannot find him addressing this issue.) The academic literature on the Second Amendment has not been helpful either.
Clarity about the purpose of the Second Amendment is necessary for any principled reasoning about its scope – including the looming question of whether the right to bear arms is incorporated into the Fourteenth Amendment and so applicable against the states.
Men look out for themselves; real men look out for others!
If the United States were to repeal the 1st Amendment, would I lose my recognized rights under Article 1, Sections 3, 4, and 5 of the Florida Constitution? If the United States were to repeal the 2nd Amendment, would I lose my right to keep and bear arms under Article 1, Section 8 of the Florida State Constitution?
Should I go on?
In point of fact, only a radical judiciary would hold against your free speech rights no matter what the State of Florida did. And, if it makes sense that 1a applies to all, which is the current state of constitutional law, then it makes NO sense that 2A or 3 A do not. What sense is there or rational is there in the pickin' and chosin'. Mostly it is historical accident and not rational interpretation.
We are in the predicament we are in because of misguided 19th century rulings which twisted the true purpose of the BOR to enable some of our past abominations as a nation. Why anyone would applaud the outcome is beyond my comprehension.
Frankly, since the courts have not perhaps (it is debatable) found that the BOR applies in a plenary way to all, it is time they either did, or time for Congress to solve the problem with its own statement of interpretation and instruction to the courts...they do things like this from time to time. E.g., spell out how certain things are to be interpreted, or spell out that courts lack jurisdiction in a matter.
Maybe it is even time for the Congress to start the amendment process to spell out clearly that the BOR applies to all, even against the interests of the states.
Unfortunatley, every now and again we hear of polls in which ordinary man on the street people are asked if they would vote for one or another of the BOR provisions. Inevitably, there are people who do not recognize that they are being asked about the BOR and will not agree with the rights therein.
I submit that some here, not you BAC, truly do not believe the rights in the BOR should apply to all. They think that rights are great if you have them in your own state, but tough luck for everyone else, everywhere else.
That isn't my vision of a great country or a decent perception of righteous justice. And I do not think for a second that this viewpoint reflect the founder's intentions, just accidents of history.
I was actually hoping you would answer the questions I posed, because they address even the reverse that you posed quite well. If the United States were to repeal anything in the Bill of Rights that is similarly addressed and protected by my state constitution, what happens?
I guess the only sensible action is SCOTUS?
Men look out for themselves; real men look out for others!
Actually, concealed, the answer is a lot more simple than that. I think Hopyard knows it, too.
Men look out for themselves; real men look out for others!
The Constitution is not a living document. If it was allowed to change with each movement in society, we would not recognize it by now. Because it is so hard to change, politicians are forced to make arguments for their interpretations, and try to convince us that their "version" of the meaning behind a given statement is the true one. If they can get a president into office that agrees with these views, then in turn appoint judges into high positions that have the same views, then they can legislate end runs around the Constitution. If everyone agrees up to the SCOTUS, its not hard to do, and they all were elected by the people after all.
All the 2A infringements we now "enjoy" is because a few people up and down the line convinced alot of people out in the world that restrictions are not infringements, and do not violate our rights.
These end runs will get more abundant and become worse in nature until we elect people who share our values. Trying to convince people who don't share our values may be a lost cause but we have to keep pushing and speaking out and lastly, we have to teach our kids.
From Michael Steven Green on PrawfsBlawg
What is the Second Amendment for? (Part Two)
As I’m sure you all know, in District of Columbia v. Heller the Supreme Court held that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. In this series of blogposts, I’m asking the following question: What are these interests? (This is a topic I have pursued in greater detail in a recent article.). It is not enough to say, as Scalia did, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.
My first post discussed one conception of a right of self-defense, which failed to justify a right to bear arms. Today I am going to consider an alternative argument – that the right of self-defense and the right to bear arms can be justified on safety grounds.
But first a quick distinction between two senses in which possessing a firearm might increase one’s safety. There are good reasons to believe that possessing a firearm makes one safer compared to a fixed population. Firearm possession is, as the game theorists say, the dominant strategy. If no one else owns a firearm, one is safer if one is armed. If everyone else owns a firearm, one is safer if one is armed. That means that each individual will tend to have a strong desire to own a firearm and will rightly point to considerations of safety as the ground for this desire.
But that does not mean that a system of private arms possession, in which others are also allowed to own firearms, makes us safer. The mutually-imposed risks of accidental or improper use of firearms might make us all less safe than we would be in a world of compelled disarmament. Guns might, as the game theorists put it, present a prisoners’ dilemma.
But let us assume, as is surely possible, that a system of private arms possession does make us safer than a policy of disarmament. One reason could be because a policy of disarmament would primarily affect only the law-abiding, leaving criminals with guns. If so, we would be safer if we let the law-abiding have guns as well. Another (less likely) reason is because a system of private arms possession would be very good at keeping guns out of the hands of those who would use them improperly, such that the predominant use of guns would be in justified self-defense.
Whatever the underlying reason, we are now assuming not merely that firearm possession is the dominant strategy, but that a system of firearms possession makes us safer than a policy of disarmament. The question remains, however, why we have a right to bear arms. To see why there is a problem here, consider the safety argument for a right of self-defense.
Imagine that the government prohibited all acts of self-defense, even when retreat is impossible. If confronted by a violent attacker, we could not defend ourselves, although we could inform the attacker that his actions are illegal and subject to punishment by the government. I think just about everyone would agree that we would be less safe in such a world. But why does it follow from this that there is a right of self-defense?
It appears that when Scalia speaks of the rights of self-defense and bearing arms, he means that these rights are pre-existing limits on the authority of the government. Individuals enjoy these rights even if they are not legally recognized. But does it follow from the fact that self-defense makes us safer that it is beyond the authority of the government to prohibit it? Keep in mind that the whole point of governmental authority is to obligate us to do what the government says even if it is wrong. If we were obligated to do what the government said only when it got things right, governmental authority would evaporate. The minute people disagreed with a law, they would conclude that the law was outside the government’s authority and could be permissibly ignored.
I’m not saying that there are no limits on the government’s authority. We can assume that the government would be acting outside its authority if it prohibited free speech or imposed cruel and unusual punishments, even if there had been no 1st or 8th Amendments. But the question remains why self-defense is among those limits. The fact that allowing self-defense is a good idea cannot be the reason, since governmental authority can obligate us to obey even the government’s bad ideas.
Nor do I think we can say that there is a right of self-defense because we have no duty to obey laws that are wrong concerning issues of public safety. The government constantly passes laws that impact our safety, laws that we think are binding upon us even when they are misguided.
Here are two other possibilities. The first is that laws that are manifestly bad at promoting public safety are beyond the government’s authority, and a law prohibiting self-defense would be such a manifestly bad law. (Notice that governmental authority would not evaporate if we were freed of an obligation to obey manifestly bad laws.) Another possibility is that we have a right to a certain minimal level of security (say, a level higher than what we would experience in the state of nature) and the government, by prohibiting self-defense, would take us below that threshold.
Of these two, I like the first better. One problem with second is that it is not clear that a government that prohibits self-defense would take us below the threshold of safety that is our due, since it may be doing a sufficiently good job at protecting us from violence in other respects that we are safer than we would be in the state of nature, even though we cannot engage in self-defense.
But let us assume that both of these are arguments for a right to self-defense. It is hard to see how a right to bear arms follows from this right of self-defense. Second Amendment advocates are fond of the following syllogism: There is a right of self-defense; arms are an important instrument of self-defense; therefore there is a right to bear arms. But this is too quick. As we have seen, even though we are clearly made safer by a system that allows self-defense, it does not follow that we are made safer by a system in which people possess arms for use in self-defense. The mutually imposed risks of the misuse of arms may make us less safe compare to a system in which we are disarmed (but can otherwise engage in self-defense).
Of course, we are now assuming that a system of private arms possession does make us safer. But it still does not follow from this that we have a right to bear arms. After all, even if it is true that such a system makes us safer, it is hardly manifestly true. It is a matter about which reasonable minds differ. Therefore, it is hard to see how this is an issue that it outside the authority of the government to decide. By the same token, it is very unlikely that the contribution of private arms possession to our safety is so profound that the government can satisfy its obligation to provide us with a minimal level of security only by providing us with arms. (It would be odd to say, for example, that countries that prohibit arms are not providing their citizens with a level of safety better than they would experience in the state of nature).
Of course one can always conclude that the Founders simply wanted to constitutionalize this empirical judgment that a system of private arms possession makes us safer, even though there is in fact no genuine right to bear arms. But I would prefer a reading of the Second Amendment that makes better sense of why people think arms possession is truly a right.
Furthermore, if the safety argument does stand behind the Second Amendment, the argument for incorporation into the Fourteenth Amendment seems very weak. After all, if the Second Amendment does not protect a right, but simply constitutionalizes a (controversial) judgment about how best to promote public safety, it is hard to see how it can be “fundamental to the American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
It is for this reason that I think that the most promising argument for the Second Amendment points instead to an autonomy interest in firearms possession, which might be worth protecting even if we are all made less safe as a result. I’ll talk about that in subsequent posts.
Men look out for themselves; real men look out for others!