Admittedly I am a Constitution admirer. I think it is one of the most brilliantly created documents ever. In my mind, the Constitution is the frame that the house that is America is built onj.
There has been much conversation about the Second Amendment being outdated, and not comprehending of the possible technological advancements of weaponry. I say this is baloney. The Founders did not write the Second Amendment as an arbiter of what weapons were permissible, (ie. their knowledge of current or future weaponry ), but as declaration of a Right. The Right to own arms to obviate a political advantage of a faction.
Our Supreme Court has ruled that this Right is not unlimited, and that our government does have the right to regulate the "arms" that we have a right to own. I also agree with this decision.
My thoughts are that the Founders understood the need, then as a matter of practicality, (again, ie. the fight against the tyranny of the British), of owning arms as a bulwark against a tyrannical centralized government power, and now, as a symbol of that freedom from a tyrannical government.
I believe the Second Amendment has nothing to do with specific weaponry, but everything to do with a Right of power against a usurping government.
What say you?
Do you think the right to own arms by the citizenry should allow them to have the same weapons as the government, GA? If not, then how could the common man hope to defend their rights with inferior weaponry?
Hi Randy, I believe your question was answered in the OP. Here it is again:
"Our Supreme Court has ruled that this Right is not unlimited, and that our government does have the right to regulate the "arms" that we have a right to own. I also agree with this decision."
Your second question isn't to the topic of the OP. And speaking of the OP's topic, it was your Second Amendment comments that prompted it. Do you have thoughts on it's posed questions?
It's just badly written:
"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."
Does that mean the right to keep and bear arms belongs to a militia? Or simply the right of all people to keep and bear arms shall not be infringed? Or both?
People can spout opinions about the 2nd all day long. But I challenge anyone to claim that the Amendment is clearly written and unambiguous.
Sure. I'll make the claim.
The writers chose to give a reason for the amendment in the first half, with the second half defining the right of the people. That you wish they had said "the right of the militia to keep..." does mean they did, and that some will do their best to spin it that way doesn't mean it either. It really is quite clear: "the right of the people...shall not be infringed". Anything but a simple reading is no more than spinning it to say something it does not.
It's common for gun supporters to elevate "right of the people" while dismissing "right of the militia" to support their own spin on gun control.
And what are considered well regulated militias? Would that be the National Guard?
Yes, according to the Militia Act of 1902, which replaced the Militia Acts of 1792. The states "fund, organize and administer" the National Guards, although the federal government can take control.
Could the Govt take control of the different State funded Guard units without the State's permission?
Hi promisem, a quote from your first link causes me to consider that a comparison of a Nation Guard to the "militia" of the Framer's mind is not a valid one.
"The mobilization of state military forces for the Spanish-American War in 1898, while much more effective than the mobilizations of 1846 and 1861, did clearly demonstrate that the Guard was not a reserve force fit for modern conditions."
I see the term "reserve force" as being important. I don't think the Framer's regarded their militia as a reserve force for the national Government at all, but rather a competing force. A thought which I think their stated aims in the writing of the 2nd confirms.
What do you think?
Hi Randy, and promisem, In looking for quotes to respond to promisem's point about the purpose of the 2nd Amendment, I came across a couple quotes that jogged my memory. One in particular addresses your question Randy, and, promisem's answer concerning the Militia Acts.
Considering that I have an Originalist view of the Constitution's interpretations, I would of course look to what the Framers had in mind as determinant over future, (ie. the 1902 Militia Act), interpretations.
To that point, I think it was Hamilton that described what the Framers regarded a "well regulated" militia to be. His perspective was that it meant a militia formed of citizens and their Arms, which would meet only "once or twice a year," to organize, and practice that organization.
I think that what he was referring to, with regards to both well-regulated, and organize, was not the regimented regulation of modern National Guards, but the organization of forming-up, as in Officer structure and designation, times, standards, and locations, (and other such working details) for "forming-up" a militia to respond to a purpose.
I think the "well-regulated" perspective of today that equates their concept of militia with that of today's National Guard, is in error. What we view as a National Guard, I think, would have been similar to what Hamilton and the Framers were viewing as a National Army, a standing Army of the new National government.
I came across an excerpt from a pamphlet, (in support of ratification), by Noah Webster, (a peer of the time), that I think supports this view:
"Thus, the well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say "A Militia well regulated by the Congress, being necessary to the security of a free State" -- because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the "security of a free State."
I would take Webster's wording of "might some day," and Hamilton's "once or twice a year" to also imply that their "well-regulated" did not include the concept of a standing militia as is implied by the comparison to the more modern concept of the Nation Guards of the states.
Just a thought, but do you think it applies to your question?
But GA, how did the framers take in account the superiority of todays weapons owned by such a "tyrannical" government compared to those of any such militia created by the common citizens? And if the SCOTUS sets limits on which arms a citizen can wield, then doesn't this defeat the entire purpose of the amendment altogether?
My thoughts on your first question is that they didn't "take in[sic] account" the possible superiority of weapons of the future. (although notes of their efforts surely indicate they were aware the document they were creating needed to be applicable to future circumstances they could not know.
I think one of the Madison Federalist excerpts I mentioned to promisem illustrates their thinking - regarding the power of an armed civilian militia conflict with a National Army. In explaining the reasons for the 2nd Amendment, and why he thought it was important, Madison wrote:
"... ... 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. "
The entire quote explains his thinking, but I bolded the nuggets that the thought boils down to. And, as I mentioned in a previous response, (in this thread to Live to learn), it is almost certain that in our times, the national military could destroy a resistance force of armed civilians, but that they could not win a war against an armed civilian resistance.
I say this with the thought that any tyrant, (whether a man or a government), would not want do "destroy" the society of citizens, but would want to subdue them to the will of tyranny. What good would it do a tyrant to rule a destroyed nation? I posed the following example of this thought to her:
"Could you consider The Soviet's failed war against Afghanistan a possible example? They certainly could have destroyed Afghanistan, but their goal was to subdue the population - not destroy it. And they failed. Is it just a coincidence that the Afghan civilians were armed?
Can you see that point?
As for your question about the Supreme Court, I think you misunderstood. The Court does not regulate the Arms, they only rule on the validity of 2nd Amendment regulations and restrictions passed by the legislature, so the concern you questioned about that limiting ability would be about the legislature doing what you thought the Court might do. In which case, if the legislation were not passed by representatives of the "will of the people," but instead by some political hook and crook, then it would be the Court that protects our Right - instead of curtailing it. Or at least that's how I see it. For that protective check to fail would require that the tyrant would have also gained control of the judiciary, in addition to the military. I do not see such a move being possible before an armed resurrection made it unnecessary.
ps. I know some of these historical quotes can be hard to wade through - they did have a different manner of speaking, but, that same manner also clearly expresses their intended meanings too. I know that many times I have to reread some of them multiple times, or go find a quiet spot without distractions to get them to sink in. ;-)
I don't see any "right of the militia" anywhere. Can you be more specific what those "rights" are, that are assigned to a militia?
Where did I say the 2nd Amendment has the words "right of the militia"?
I wish you would quit making up things I allegedly said. You do it to other people, too.
"It's common for gun supporters to elevate "right of the people" while dismissing "right of the militia" to support their own spin on gun control."
Did I misunderstand? Are the rights of the militia just something you made up and were never addressed at all in law or constitution?
promisem, you are certainly right that "People can spout opinions about the 2nd all day long"
You have "spouted" yours here, and I "spouted" mine in the OP, and many other scholars and jurists have "spouted" theirs throughout our history.
I think you are wrong and you think I am wrong, and I will accept your challenge.
I am familiar with the debate involved in the parsing of the two distinct segments of the Amendment's actual wording. I am familiar with the argument that the latter, (the Right to bear arms), doesn't require the former, (the militia part), and that because the former was included - it must have been so as a condition on the latter. I don't agree. I see it as a grammatical and deductive argument that has no stronger basis than as a possible school of thought, perhaps similar to those different "schools" of thought on economic principles and theories.
I choose to rely on the documented notes and thoughts, and, debate records, of the Framers as they authored the Amendment. I also choose to follow the conclusions of the greater number, (greater than the membership of the "parser's school of thought), of Constitutional scholars that oppose the "parser's interpretations. And then, there is of course the history of judiciary rulings that side with the majority of non-parser Constitutional scholar's interpretations.
So, yes, I do say that the Amendment - for the purpose it was intended, was not ambiguous and poorly written. Other than your belief that your opinion of interpretation is the right one, can you offer an equally supportive basis for your opinion as I have offered for mine?
GA, I can't tell by your comments if you're in favor of citizens owning nukes, or that they simply can according to the 2nd.
That's just baloney Randy. How about addressing the point of the OP instead of just restating silly questions and statements.
In the hope that it will help, I will once again offer my answer to your repeated question: (and I will bold some of it to promote clarity):
"Our Supreme Court has ruled that this Right is not unlimited, and that our government does have the right to regulate the "arms" that we have a right to own. I also agree with this decision."
To your added question, no, I do not believe the Second Amendment addresses any types of arms at all - nukes or cannon chain-shot.
Come on bud, step-up to the conversation. You must have thoughts of your own beyond those clever trap-questions you are loaded to spring on.
"That's just baloney Randy. How about addressing the point of the OP instead of just restating silly questions and statements."
"Come on bud, step-up to the conversation. You must have thoughts of your own beyond those clever trap-questions you are loaded to spring on."
GA, is that what you meant previously about "peer review"? Or do only people with certain beliefs have to follow peer review rules?
Maybe he was adopting the same tone as the post he was replying to.
Well damn PrettyPanther, a double dose of chastisement. I must have been really off-key.
But I must ask, did my explanatory response to promisem make any difference, or is it still a "jerk" of a response? Do I need a helping of crow, and loosen-up a bit?
Actually, even before you responded to promisem I had re-read through this thread and regretted my pile-on. My apologies. I think I understand your position and I don't feel qualified to comment much.
Alright now promisem, it seems a little like you are missing the point on purpose.
Here are Randy's questions I was referring to:
"Do you think the right to own arms by the citizenry should allow them to have the same weapons as the government, GA? If not, then how could the common man hope to defend their rights with inferior weaponry?" permalink
"GA, I can't tell by your comments if you're in favor of citizens owning nukes, or that they simply can according to the 2nd." permalink *Okay, I admit that was a statement, but I read it as an implied question. ;-)
And there was another couple of references to the "owning nukes" and "are nukes Okay by the 2nd Amendment" questions in another thread.
I had already answered those questions - more than once, and neither were relevant to the OP's topic of whether or not the Second Amendment is antiquated. Combine that with Randy's avoidance of the topic question, and yes, they seemed to be silly misdirection to me.
It had nothing to do with whether he agreed with my perspective or not. And I think that would have been clear to you too.
It's not a martini night, so you will have to explain your "peer review" reference - I don't understand what you mean.
GA, you sound grouchy today.
I didn't say you were wrong, so I'm not sure why you are taking my post so personally. I just said the Amendment was badly written. And it is badly written BECAUSE the country and the courts have fought over its meaning for centuries more than any other Amendment and continue to do so.
Like one other poster here, your reply reduces the militia clause to irrelevance for the sake of a pro-gun position. I'm not making a rights case either way. I'm simply talking about the clarity of the Amendment.
You also assume my post is attacking the Amendment as a right to own guns when, again, I'm just saying it isn't well written. I don't have a problem with people owning guns. I just have a problem with assault rifles and massacres.
Which comes back to my original post in the form of a question (and your cranky question about why my opinion is the right one): Why does the miltia clause exist at all?
Hi promisem, I wasn't grouchy at all, and didn't intend to sound that way. Sorry for not being more clear in my intentions, and I certainly didn't intend my response to imply it was a "personal" thing now.
Perhaps one reason might be that I feel strongly that the attacks on the 2nd are misdirected. They almost always come from anti-gun or pro-gun control perspectives that want to blame the amendment for the failure of their political representatives.
If the will of the people was such that regulation could be passed declaring the only permissible arms would be single-shot .22 rifles - that would be completely constitutional, by my perspective of the amendment.
Regarding the thought that it is a poorly written amendment because it has so frequently been debated or adjudicated - I again point to my consideration that such debate and litigation should be directed at legislative actions.
Of course that is the simple basics, as I see them. I am sure there may possibilities where some litigants will challenge the constitutionality of some restrictions or regulations - citing the "militia" part as some type of qualifier on what may be declared the minimum power of arms. Sort of like you can't have a functioning militia with just .22s. But that point is beyond the scope of what I am trying to say.
... and without any personal direction, you did offer a challenge. A challenge that no one could say it was not a poorly written amendment. I disagreed, and took your challenge. And in the good nature of an honest reply, my question about why you consider your opinion right wasn't cranky. Had you responded to my points of support for my opinion, with similar points of support for yours - I would not think it was personal.
Maybe a small confession is in order, I didn't address your question of "why the militia part" at all.
My impression from various readings is that it was a reference of the times. We had just won our independence through militias composed of civilians and their Arms. It was our only defense against the tyrannical, (as we viewed them) government of the British, and here they were, (the Framers), promoting acceptance of another form of powerful Central Government.
The authors realized they needed a safeguard should the need arise again. I think they also realized that the citizens would not accept another shot at powerful central governance without the security of the declared Right to be able to mount a defense - should it be needed. I think the inclusion of the militia part was intended to frame the point of the Right - that citizens will have the Right to their Arms, because it was just such a condition, (that they had Arms), that allowed them to defend against a tyrannical government once, and would still be the condition under this new government, should they need to do it again.
But, that is just my opinion. Even though I disagree with the "parsing" or "why the militia part" schools of thought, I have no more support than the foundation of my opinion. I just happen to think it is a solid foundation that can rebut the challenges posed by those other perspectives. ;-)
I suppose it is simply symbolic, in some ways. Because to successfully rise up against the government now you'd need tanks, drones, fighter jets and (worst case scenario) a nuclear weapon, or two. And I am a fan of the constitution also. Although I see it as a living, breathing document which should reflect the collective understanding and interpretation; which evolves with the development of a society and the world it lives in. Which it is, on some issues. If it weren't then blacks would not have full representation, women would have few rights, we'd have a lot less lawyers running about and the judges on the SCOTUS would have more free time. And, as a symbol, it is pretty powerful. If we did not believe our right to judge and convict our government of not living up to the spirit of the founders what would we have? A tyranny, void of opposing views.
But, if just a symbol; the arguments in favor of gun ownership would simply be made from a different perspective. The fact remains that guns exist and arguments in favor of gun control continue to fall flat. It's a public school mentality. In a perfect world we wouldn't be having the discussion. In a perfect world no one would need to defend themselves. Judging all by the same standards used to judge violent, potential (or current) criminals makes little sense. And ignoring the fact that any, and all, participating in the discussion could easily own an arsenal and never infringe on the rights of others remains, to me, reason enough to oppose it.
Until we have a discussion on the underlying causes of gun violence it will persist. And if we took guns out of the equation the violence would persist, and possibly escalate.
"Until we have a discussion on the underlying causes of gun violence it will persist. And if we took guns out of the equation the violence would persist, and possibly escalate."
Thank you. Odd just how difficult it is to get some people to recognize this simple fact, isn't it?
That was well stated Live to Learn, but with the most sincere intention, I must offer a bit of direction and focus.
I contend, and I believe historical documents support me, that your list of weaponry, ("...tanks, drones, fighter jets and (worst case scenario) a nuclear weapon"), have nothing to do with the original intent, or today's validity, of the Second Amendment. It's purpose then, (in reality), and it's purpose today, (maybe more symbolic than real), was as a defense against a tyrannical government.
The reality in its time was the very real example of our prior British rule. Do you suppose that a danger of a tyrannical government is a thing of the past? Do you think that today's examples of tyrannical national governments can't apply to us - just because we are America?
The most prominently stated argument I see most frequently is the very one you stated - our armed society wouldn't have a chance against today's modern military arsenals. That is, I think, an incorrect perspective.
I think it is true that current military power could destroy any civil resistance, but I do not think it could win against a war of resistance - as in subdue that society. I understand that may sound like just semantics, but consider... do you think the destruction of a resisting society would be the goal of a tyrannical government, rather than the subduing of its resistance?
Could you consider The Soviet's failed war against Afghanistan a possible example? They certainly could have destroyed Afghanistan, but their goal was to subdue the population - not destroy it. And they failed. Is it just a coincidence that the Afghan civilians were armed?
As for your perspective that the Constitution be a "living" document whose interpretations change with the times, I enthusiastically disagree. I think it must be considered that our Constitution, (*sigh, I don't want to wear-out this analogy), was and is intended to be the frame that we build the house that is America around. And like adding to or modifying, or renovating any house, it is the house that is changed, not the structure that supports it. But... also like a foundational frame of a house can be changed if required - so too can our Constitutional frame be modified by the included Amendment process. One designed to ensure that major changes didn't just happen willy-nilly, but only after considerable thought. Sort of like deciding to make your bedroom larger by knocking out a supporting wall - without considering that the loss of that wall will make the roof sag.
I think the Constitution can be a living and breathing document of our times, but by changing it through the Amendment process - not changing its original interpretations. If the interpretations no longer suit - amend them, but don't just declare they now mean something else because times have changed.
I think your "blacks and women" examples make that point. The interpretations weren't just re-interpreted, they were changed by the Amendment process.
I also think that I may have gotten carried away and forgotten my point of directing your focus - and that was intended to be that a Second Amendment discussion is not about any aspects of gun control, as in the controversies of modern times - and as you mentioned as a rational, but it should be a discussion about the validity and intent of the Amendment. I think these gun control issues are a separate discussion, and the Second Amendment is as valid now as it was then - as written.
The tyrannical government argument does not reflect the reality of 18th century America. Once again, it is a personalized, gun advocate interpretation of the 2nd Amendment.
America did not have a standing army in the 18th century after the Revolution. It needed to call up militias if Britain came back or if a major Indian war broke out again.
The country had much more to fear from them than a very weak central government.
For that reason alone, the purpose of the militia clause in the Amendment makes more sense.
Now you have tossed out the red meat promisem. You got me. And don't take the following personally, but there is a lot of proof that "the tyrannical government argument" is exactly the reason for the 2nd Amendment. And, the proposed Central Government of the new Constitution was far from viewed as a "very weak central government."
But since I feel recently chastised by you for my form, I won't tell you that you are wrong, I will let some of the publications and peers of the times, and, the Framer's words tell you:
"Anti-Federalists - As opposed to Federalists, people that feared a strong central government, supported states' rights, and opposed ratification of the U.S. Constitution. Anti-federalists insisted that a Bill of Rights must be included in the Constitution to protect individual's rights against a powerful central government. Anti-federalists typically were members of the poorer classes, but also included patriots Thomas Jefferson, Patrick Henry, James Monroe, and Richard Henry Lee."
Here is James Madison, in Federalist Paper #46 - explaining the reason for the 2nd Amendment, telling how it is his belief that a citizen militia, with its associated patriotic and defense of liberty attributes and motivations would be more than a match for a national standing army. (of course his then-computations won't pass the test of today's reality): (ps. my underlining)
"... ... 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. " source: Yes, it is Wikipedia, but it is a direct quote of the Federalist text
In Federalist Paper #28, Alexander Hamilton clearly states there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms.
"[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!" guncite.com *again, I know this source may be challenged, but also again, it is a direct quote pulled from the Federalist Paper - not an opinion or spun fact.
There are plenty more, but here is a last reference.
" A widely reprinted article by Tench Coxe, an ally and correspondent of James Madison, described the Second Amendment's overriding goal as a check upon the national government's standing army: 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 next article in their right to keep and bear their private arms. source: LecLaw.com
promisem, everywhere you look for sources of the motivation, impetus, and reason of support for the 2nd Amendment, during the time of the Constitution's creation and ratification, it is as a citizen's defense against the tyranny of a powerful central government - which was exactly what our Constitution was creating.
I think we all know what events were in the minds of the founders at the time the second amendment was written. As I said, it is merely symbolic; but the symbolism is enough to ensure it has remained enough. I don't know of any other Western government which holds the values we do, in regards to government, its purpose and its function.
Civil resistance would not be necessary because military power would be difficult to wield against us. Citizen soldiers is what makes up our military and I cannot fathom a scenario where those would (en mass) agree to go against the principles of our nation.
I wouldn't stop at 'the soviet's failed war against Afghanistan' since we are guilty of similar actions within that country and not unsimilar goals.
Although I agree that the constitution is the frame, I disagree on the living document analysis. If it were not a living document it could not have stood the test of time and an evolving society. I find your analogy to be a little flat. I can take a one story ranch and, with time, turn it into anything I please. I can make that one story ranch so unrecognizable as to render your analogy a little foolish.
I realize that there are times where an amendment is completely and irrevocably necessary. However, it is also reasonable to assume that they aren't. Did we really need the 13th? By our standards that we hold fast to today? Not by a long shot. No one alive could imagine living in a country as it was back then. And the 14th? Have we had one amendment which specifically addresses the plight of women during those times? Of course not. Are women still in the position they were back then? No. It is the exact 'living' nature of our constitution which has ensured this. The fact that as our society evolves we come to define what freedoms mean, who they apply to and how they apply.
Gay rights is a perfect example of how our understanding of constitutional freedoms evolve and become a part of existing law. There is nothing willy nilly here. It is a product of our collective beliefs.
I believe accepting the document as a 'living' document maintains the structural integrity to a greater degree than your analogy of just adding a wing here and there. No supporting walls are knocked down and we don't have to worry about shoddy work with each addition (like the 18th and 21st amendments).
As to the second amendment; although I am a very strong proponent of the right to bear arms I do accept that our society may not always believe this is the intent of that amendment and interpretation will reflect that collective understanding.
Live to learn, I surely don't want to disappoint you, so I hope you aren't expecting me to say there is anything wrong with your noted perspectives. I do disagree with several of them, but as stated, they are as valid for you as mine are for me.
For instance... (you knew there would be a but... didn't you?)
Your questioning of the need for the 13th Amendment confuses me as to what you are trying to say. Surely, if you could ask any of the slaves freed by it if it was needed, they would have an answer different from yours. If you had said "Do we need...," combined with your "...today" qualifier, instead of saying "Did we need..." then I wouldn't be so confused. Do you really mean we didn't need an official end to slavery in 1865? Do you really think all states would have abolished it without the 13th?
I have the same problem understanding your view that the 14th was unnecessary. There are just so many documented examples of injustices that the 14th curtailed, that I just don't understand why you think it was unnecessary. Unless of course you are transporting today's civil mores to the times of those amendments. But even if so, I would have to ask if you think we would have the social mores we have today if they were not driven by the changes those amendments forced.
... and then you bring in the "women" issue. After 131 years, women still did not have the right to vote - until the 19th Amendment. Do you suppose they would have automatically gotten suffrage on our 132nd year without the 19th? So, yes, I would say we have had an amendment that addressed the plight of women back then - the 19th.
Unless of course, you are once more applying today's attitudes to the times of the amendment - to which I would once again ask if you thought we would have today's attitudes without those amendments when they happened.
Since all your noted changes occurred by amendment, rather than reinterpretation, your examples seem contrary to your observation that they illustrate the "living document" Constitution. But remember, I noted that I am not sure I took your meaning correctly. So help me out here.
Your finish, concerning citizens not wanting to accept the interpretation of the 2nd because it doesn't reflect their current desired interpretation is exactly the point of the thread. The meaning doesn't change just because someone wants it too. If they want changes - then make changes. Either by constitutional legislation, or the amendment process, but not by mass agreement that something means something else just because they don't like what it really means.
Where is your living document's structural integrity if paragraph A means one thing today and another tomorrow? Where is the stability if a Right is interpreted as yours today, but some one else's tomorrow? Where is our security if we can never be sure we understand the rules?
Regrettably, I am a little annoyed you picked on my "frame and house" analogy, but, maybe it's not too bad. If your examples aren't as you thought, then maybe you didn't get the picture my analogy intended either. ;-)
To the 13th, specifically. Of course, at the time, it was imperative. But, by your understanding of the Constitution (taking in mind that it was built around the principles espoused in the Declaration) was slavery a reasonable extension of those beliefs? No. The war, the 13th and 14th amendments, and other actions were necessary because the principles of the Constitution needed a little oomph at the time. To drill that point home. Our current society does not reflect the society which existed when those needs were in place.
The question is, would we as a people have evolved to our current understanding without that oomph? I think so. I think there is evidence in our history to support this. Was it the amendments which caused us to evolve to this? I don't think so. Law does not change hearts and minds. It is the living nature of the law which does and law must be good and fair in order to find itself embraced by belief from one generation to the next. And since (for the most part) it is not law which creates belief, but law which reflects it, I think we would have collectively embraced the laws put in place by those amendments as our society grew. It was learning that these amendments are nothing more than a reflection of the values espoused in the Declaration....raising generations who understand that they are a reflection of the values which changed society; not the law itself. Of course the three amendments you point to were God sends at their time but I think, with time, we are good enough of heart to have embraced them without them because our benchmark shows these to be an integral part of ensuring the pursuit of happiness and liberty is impossible without these principles applying to all.
Without the Declaration I might agree with you that amending the constitution is the better way. But, one specific line of the Declaration is an important benchmark we have used throughout our history in keeping the Constitution relevant. Life is easy. Liberty creates more of a discussion. The pursuit of happiness is much trickier. As our society grows (as does our ability to communicate); our interactions show us how individual this goal can be. And our collective belief in the value of our individual pursuits, as well as the value associated with the pursuit of others, is what allows our society to evolve to more uniformly reflect that. It's what the Supreme Court exists for, imo. To review how these principles are applied, to ensure they are applied fairly and to ensure they reflect an evolving understanding of the pursuit, as opposed to a stagnant one.
Everything evolves GA. I suppose I prefer to redecorate as opposed to rebuilding. Probably because I believe it is safer. We have a firm foundation held in place with pylons of principle going down through a sea of shifting sand. We have historical evidence of the foolish nature of superfluous add ons. Constant review, reflection and commitment to the principles keeps the pylons from rusting. But, remember, it was great upheaval which caused the principles to be publicly put forth and embedded so deeply. They were forged in the fire of revolution. Amendments, on the other hand, can be put in place and revoked just as easily. They reflect the currents of the day, not revolution. Only the original Constitution, itself, can be depended on to remain firmly in place by the pylons of the principle we hold dear from the Declaration. They are the spirit which keeps the Constitution relevant. Once that spirit dies, the pylons rust; and revolution may not be seen on the horizon, but it becomes an option.
So if we can only look toward the original Constitution to protect our principles we have to accept that our understanding of those principles will change our understanding. I believe, were the founders here today their minds would be on the questions of today and they would agree that values held over 200 years ago were not first and foremost in their minds when they ratified this document. But,I also believe it would be just as relevant in that scenario because it is meant to reflect fairness and equality for all, forever.
Live to Learn, first, thanks for such reasoned responses, but you are really making me work hard at responding. I don't agree with what I take to be your underlying premise - that we would have evolved to the societal mores we have today without the amendments, but other than that I find your reasoning sound - if your premise were true.
In other words, you are making me work to politely and reasonably point out my disagreement.
For starters, and going back to the 13th Amendment. You appear to think that slavery would have been abolished anyway - in time - as our society progressed. That the values encased in our Constitution, (and the Declaration of Independence you mention), would have ensured it. Idealistically I can agree, some future time would have seen its demise.
Many, if not most of the most recognized Framers understood, (and said so, privately, if not publicly), that slavery was a bad and nationally damaging practice. Also, the principles, (against slavery), of the Constitution, (the frame of the house ;-)),were already there. But the framers also knew that realistically if abolition were included, specifically, in the Constitution they were proposing - it, (the Constitution), would not be accepted and ratified. They knew the idea was right, but the times weren't. I think our national conflicts leading to our Civil War validate their perspective.
So, after 73 more years of slavery we fought a Civil War over the issue. Even that the time for abolition was ripening, and considering the troubles of the Reconstruction era following the war, I do not think slavery would have ended when it did without the 13th Amendment. Which prompts the question of how many more years would pass before we evolved beyond slavery without the change of the 13th? How many of our societal evolution steps would have been delayed?
The principles of the enumerated Rights were in the Constitution, (including the Bill of Rights), from the beginning - as you say, but it took 73 years and a war, and, an amendment to force national adaption of those principles. How many more years would it have taken without the force of the amendment?
Consider our recent issues with the Confederate flag and Civil War monuments - if this is the state of our evolution now, where would we be, (regarding this issue), without the change of the 13th? Would we be today like we were in the 1950s? If the principles, that we both agree were in the Constitution from the beginning, didn't change, and it took an amendment for our Constitution to work - on this issue, then how can you say it was a living document?
Regarding your perspective on the Framer's mindset, whether today or then, I again disagreed. But that disagreement is based on my perspective of the brilliance of their construction of the document. I don't think they would have addressed detailed specifics like gay rights or women's suffrage. I think they would have constructed the foundation of the concept, and relied on their faith in the "good heart" of our nation, the validity of the constitution they were presenting, and the rightness of letting those good-hearted citizens legislate their future using the guide of the Constitutional structure they were providing.
For examples, the 1st and 2nd Amendments. Consider how brief and concise their construction. Imagine how many details and specific constructs they could have included - just from the issues of their time, much less the unknown issues they knew the future would present. They didn't dictate the rules for separation of church and state. They didn't say no Ten Commandments on the courthouse lawn - but their construction of the 1st gave us the frame for our society and courts to use to determine those details - based on our changed future perspectives. The meaning of the 1st hasn't changed, even though our extrapolations of that meaning have - through our courts and legislature. And, that, is the brilliance I see in the Constitution's construction. The rules don't change, the document isn't living, but we get to interpret what those rules mean - with the Constitutionally provided power of the Court to make sure we stay between the lines.
GA, interesting to speculate. I am not as optimistic about human nature as is L to L.
Slavery, for example, I wonder if there would have been emancipation without the Civil War and the 13th Amendment? Conservatives always think that people in time would do the right thing without a stark intercession of law or war. They want to let legislatures and the electorate determine basic rights for the 'others', rights that should not be subject to legislatures or popular sovereignty.
Slavery was a greedy economic system and while it may have been abolished with the coming of the 20th century as the economic advantage of having slaves was replaced by machines and mechanization, there is more. It also a defined social and political relationships between those in bondage and those who were not, on stark racial lines. This was going to be a bit more difficult to get over. Based on this, I don't see any altruistic motives supporting emancipation. Pressure from the outside showcasing the sheer barbarism of the practice in the face of a modern world might have finally convinced the slaveholder to let go. Who knows how far into the 20th century we would find ourselves until all these factors brought to one point would compel abolition of the institution.
Interesting to speculate, I wonder.....
I agree with your thoughts Cred, and that was the gist of my point to Live to Learn.
I do share her optimism that as people we will evolve beyond our worst attributes- if we don't destroy ourselves in the interim, I am just not as optimistic as she on the time frame. Nor am I as sanguine as she is about the danger and human destructiveness that would probably occur in that 'let it be' journey of societal evolution.
This goes to your thought wondering if emancipation would have occurred without the 13th. I would speculate that, nationally, it would not have. I can see an unresolved, (without the force of the 13th), situation that would have split our nation. Probably to the degree of a second Civil War within a decade of the first. Only this one may have been as much a black revolt as also a regional war. North and South may symbolize the war, but the divide also included divisions all the way to our western boundaries.
One thought we did appear to have in common was the belief that the principles contained in the Constitution are the best basic foundation we could hope to create.
As it seems difficult to extract answers from certain conservatives regarding to extent of weaponry that should be allowed under the 2nd Amendment, does it or does not include military ordinance?
Listening to the NRA and certain gun nuts talk, why should there be any restraints?
As a semiconservative, are there any limits that you can acknowledge to the extent of this 2nd amendment, can we restrict private ownership of tactical nukes by private citizens for example? Again we don'tt want to offer 'that overbearing government' a dangerous amount of latitude.
And yet...there is precious little "Military ordinance" allowed the public. Apparently the NRA and gun nuts are quite satisfied with it that way.
OMG! Credence2, you can toss that chum into other waters. It won't work for bait here.
You will see, (since I hope you will return), by my responses to others, my OP, (and I contend the 2nd Amendment) is not about gun control. It is about our Right to bear arms. Your questions should be applied to the legislative and judicial arenas.
So, putting aside the NRA, and whoever you intend to be covered by your "gun nut" label, our courts have already determined that our Right to bear arms can be regulated, so, I think your questions, and any other "gun control" issues are more appropriately relative to legislation and judicial determinations than interpretations of the Second Amendment.
And... it appears you were so anxious to toss out these tired pieces of chum-bait that you didn't thoroughly read my OP at all - because the answer to your questions was stated upfront. But I will quote it here for you:
"Our Supreme Court has ruled that this Right is not unlimited, and that our government does have the right to regulate the "arms" that we have a right to own. I also agree with this decision."
As you can see, I believe our Right to bears arms includes whatever arms legislative regulations allow. And there is where you need to direct your chum - to the will of the people through the legislative process - not an extrapolation of the simple text of the Amendment.
ps. you ain't in Hawaii anymore, fishing takes a little more effort here. ;-)
See if my latest post more directly addresses your inquiry? So I say that the 2nd amendment is not out date a la Scalia.....
As long as conservatives understand that, then I have no problem with them in regards to this issue.
Hi bud, I did see your second post, and as you will see in my response - I completely agreed with you. I am just not sure that you understand that by your second response - you are essentially agreeing with me, and most other gun enthusiasts that the Second Amendment does not pose any restrictions, or "gun controls" on the arms we have a Right to own.
Did not mean to go off on a tangent initially, but I have to direct your attention to a portion of Scalia's ruling
"He also wrote that his decision did not overrule the holding in the 1939 Miller ruling that the sorts of weapons protected are those in common use at the time, and that the “historical tradition of prohibiting the carrying of dangerous and unusual weapons” was still permissible.( tactical nukes qualify?)"
I don't know if by this he is implying that all sorts of weapons are ok? This 1939 Miller ruling which he did not overturn as part of his decision on Heller, implies that restrictions can be imposed on the sorts of weapons that can be allowed. What would constitute dangerous and unusual weapons? A bit subjective, I know, but clearly states that there is no Carte Blanche regarding weapons that are determined to be permissible.
On another vein, while the principle of allowing private possession of firearms is understood, I would be concerned that if too many overwhelming weapons are made available if would fuel an insurrection by an arrogant few against a majority that is satisfied with the current state of government. So, this idea of the 2nd Amendment as a bulwark against tyranny of the government would need to be determined by the vast majority of us, not just by an overarmed radical militia minority.
Uh oh! Must be crossed wires somewhere - I think you are right on all counts. The Second Amendment guarantees the Right to bear Arms, and our society, by the will of the people, as directed by their election of specific representatives, determines the regulation of that Right.
If that perspective is a legitimate one - then the 2nd is as valid and legitimate today as it was at its birth.
When the 2nd was written, your choices were a musket or a crossbow. Thinking it gives someone the right to kill a large number of people in one blast of an automatic weapon is unreasonable. We used to have a ban but Bush II let it lapse. Other countries have this issue under control. We could too.
Is there a reason cannon was left out of the equation?
When did we have a ban on automatic weapons? "Machine guns" in the common language, of which the popular AR-15 is not, and neither is any gun manufactured for sale to the public today. So what was this ban on automatics?
It is my thought that the type of arms, whether musket or crossbow, were never a consideration in the purpose and motivation to create the Second Amendment.
There is much historical documentation that describes, (a lot in the Framer's own words), the motivation that caused its creation, and the purpose of its inclusion. Specifying what "Arms" it encompassed was not part of that motivation, or purpose, or intent. There is a particular passage in Madison's Notes on the Federal Convention where he speaks of the need for a document that would not just suit the times of the Constitution's creation, but also of future times - with changes, that the Framers could not foresee.
I believe, as do many Constitutional scholars, (I am not one), that the sparse and concise wording of the Constitution was very purposeful, and that a process to change the Constitution, (the Amendment process), was to make it a document that could meet the demands of those unknowable future times. I believe that is why the Second Amendment says what it does - and no more.
Your comment about the weaponry, and the lapsing ban, don't appear to be to the point of the Second Amendment, but instead, to the point of today's gun control controversies.
If you could consider the Second Amendment as I described above, and, (as mentioned), many Constitutional scholars have described it - would you be able to separate the issue of gun control from the Right stated in the Second Amendment? Or would you still insist that today's society be the only standards that guide your, (or anyone's), interpretation of the validity of the Amendment as written?
Excerpt from a Newsweek Magazine op ed......
With that, only the independent clause—“the right of the people to keep and bear arms shall not be infringed”—was deemed important. Gun controllers wailed and gun enthusiasts cheered. But that was largely because few of them seemed to have read all of Scalia’s opinion. As every first-year law school student knows, constitutional rights are not absolute. Newspapers stay in business thanks to the First Amendment’s guarantee of freedom of speech, but they cannot lawfully print child pornography. And citizens have no right to incite imminent violence. Similar restrictions apply to other constitutional rights—most have parameters designed to protect society.Scalia clearly stated in Heller that the right to bear arms had boundaries.
“Like most rights, the Second Amendment right is not unlimited,” he wrote. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” For example, he cited laws that prohibit the possession of firearms by felons and the mentally ill, or that forbid them in places such as schools and government buildings, or impose conditions on their sale. He also wrote that his decision did not overrule the holding in the 1939 Miller ruling that the sorts of weapons protected are those in common use at the time, and that the “historical tradition of prohibiting the carrying of dangerous and unusual weapons” was still permissible.( tactical nukes qualify?)
In other words, even one of the modern era’s most conservative justices says gun enthusiasts are wrong when they claim that any limitation on firearms is unconstitutional. Government can place restrictions on firearms with the intent of protecting society.
Even a rightwing SC Justice like the late Antonin Scalia seems to understand the problem and the proper approach to it.
By golly Cred, now we're cooking with gas. I completely agree, and contrary to the appearance of your intention in posting this excerpt, I challenge you to find any statement of mine that is contrary to what you quoted.
Now, if you would just take a moment to consider what his understanding and proper approach means, you will see why I hold the perspective that I do.
I believe his "understanding" was that this Right is subject to regulation - just as your NewsWeek Op compared with its First Amendment example. And I believe his understood "proper approach" was that regulation is the prerogative of legislation - as directed by the will of the people.
If you included Scalia's position because you believe it to be correct, then you must be agreeing with my, and many other gun enthusiast's position that the Second Amendment does not include, nor was it intended to include, any considerations of weaponry types or limitations.
Your side, (gun control enthusiasts), just need to generate enough "will of the people" to accomplish the legislative regulation that you think that antiquated, poorly written, and ambiguous Second Amendment should have done for you.
Unless of course I completely misunderstood your response, and you don't really agree with Justice Scalia's position after all. But if you do agree with it, then you must also agree with those "gun nut's" claim that the Second Amendment does not impose any limitations on the arms they are allowed to own - our legislature does. And without legislation propelled by the "will of the people," then they are also right that gun control limitations are unconstitutional - as supported by the Second Amendment.
From Cred's post: “historical tradition of prohibiting the carrying of dangerous and unusual weapons”. This could be a problem - don't I recall an instance where a state tried to ban all AR-15's and anything similar? It was knocked down not only because "anything similar" (forget the exact wording) was exceedingly vague, but because the AR-15 is the single most popular gun in the US, with many millions of then in private hands.
"Dangerous and unusual seems to be what shot it down. If I remember it all correctly, which at my age is doubtful.
I have no problem with semi-autos, but this bump stock stuff has got to go..... The line has to be drawn somewhere and it make more sense to have it here, the divide between semi and full auto.
I have not heard from you, are you in agreement with Scalia's (mine and GA's) interpretation? Can you actually take a position to the right of Scalia in regard to this issue?
“What makes me sad are the conservative women who have their experiences discounted every single day, because they don’t fit the right ideological profile … It’s gun control advocates who have threatened to rape me. It’s gun control advocates who have threatened to shoot me in my front yard.” Dana Loesch talked about how she has been forced to move from her home due to the abuse she faces because of her pro-2A stance.
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