Re: A Model, American Firearms Policy (Long)



I'm responding to Jim Yanik and RD together within the context of RD's
reply.

RD (The Sandman) (spamlock) wrote:
Jim Yanik <jyanik@xxxxxxxxx> wrote in
news:Xns97A8C5E56D24Fjyanikkuanet@xxxxxxxxxxxxxx:

"RD (The Sandman)" <rdsandman@(spamlock)comcast.net> wrote in
news:Xns97A893C929484hopewell@xxxxxxxxxxxxxx:

"Homespun Inc." <homespuninc@xxxxxxxxx> wrote in
news:1145304277.724530.25550@xxxxxxxxxxxxxxxxxxxxxxxxxxxx:

RD (The Sandman) (spamlock) wrote:
Jeff Dege <jdege@xxxxxxxxxxxxxx> wrote in
news:pan.2006.04.16.20.36.03.156765@xxxxxxxxxxxxxx:

On Sun, 16 Apr 2006 11:12:01 -0500, RD (The Sandman) wrote:

"Homespun Inc." <homespuninc@xxxxxxxxx> wrote in
news:1145200649.450638.183350@xxxxxxxxxxxxxxxxxxxxxxxxxxxx:

There are states that believe they are entitled to deprive
citizens of their right to keep and bear arms and other states
that believe that right is somehow discretionary. And that's
wrong.

Yep, per the USSC in Presser v Illinois. States can limit the
right to keep and bear arms as long as an effective state
militia is maintained. The state cannot prohibit people from
keeping and bearing arms "...so as to deprive the United States
of their rightful resource for maintaining public security."

Presser was over the issue of whether the 2nd protected the right
of private groups to engage in confrontational armed processions.

There is more to the case than just the actual point. Look at
Miller. It was really only about two things:

1. Is section II (registration) of the NFA an infringement on the
Second Amendment?

2. Is the NFA a power grab by the feds of what are normally state
police powers?

Do you see anything in there about defining the militia or the
efficacy of using a sawed off shotgun in warfare?

I'm not a history major, so someone answer me this, why was the
Pennsylvania Dissent called a dissent?

Jefe Dege wrote:
The Pennsylvania Dissent was, as you may remember, the report of the
dissenting members of the Pennsylvania Ratifying Convention,
detailing their objections to the proposed Constitution. Their
primary object was
the lack of a Bill of Rights, and they provided a list of such
rights - among which was the Right to Keep and Bear Arms.

I have always felt that their proposed wording best epitomized the
proper
balance between the rights of the individual and of the State:

That the people have a right to bear arms for the defence of
themselves and their own state, or the United States, or for the
purpose of killing game, and no law shall be passed for disarming
the
people or any of them, unless for crimes committed, or real
danger
of
public injury from individuals;

Homespun Inc writes:
The second amendment could have looked like that. But it didn't.
Why not?

Everyone here seems so certain the 2nd Amendment includes a RKBA for
self-defense-- even where the amendment specifically refers to
defense of the state and specifically does not mention self-defense.

Nor does it specifically EXCLUDE it.
Correct.

Yes. Correct. But not in any way a solid rebuttal of the point or an
answer to the question

The FF could not put down EVERY reason for a person's RKBA.
Nor could they list every right a person might have.

Well, maybe. And maybe not. (Although I say maybe not to play devil's
advocate.) My point is why didn't the FFs phrase the 2nd amendment the
way the Penssylvanians did? To say they couldn't "list every right a
person might have" is true, but that hardly answers the question for
where that might be true they certainly could have used the
Pennsylvanian's text or a text like it.

Which is why they came up with the Ninth Amendment.

If the RKBA for self-defense (and for other reasons not relating to
defense of the state) is one reason "why they came up with the 9th
amendment" then the RKBA for self-defense (etc.) isn't in the 2nd
Amendment.

If the folks who want to carry firearms can't agree on the meaning of
the 2nd amendment, then I'm not sure how we expect the folks who don't
want to-- or who don't want anyone to even own them-- to agree.

I don't think that they are. Most in here recognize that the
Constitution (of which the Second Amendment is part) does not grant
any rights, it only protects enumerated ones specifically and other
of a similar vein rather vaguely via the 9th Amendment. That means
that the right of keeping and bearing arms is not granted by the
Constitution (or the Second Amendment) just the protection of that
right is. RKBA comes from historical and natural law.

Self defense is a no brainer. It occurs naturally and instinctively
and is not considered a thing that any government should have to
protect as a right. It so happens that a firearm is currently the
most effective method of providing that mechanism to an individual.
Therefore, if the right to keep and bear arms is protected, the right
to use one in self defense is also protected although it is not an
enumerated right.

I personally think it's a no brainer. No FF would sugest that a
human being lacks the right of self-defense. And the literature of
the time seems to assume a right to self-defense with a firearm.
See also state constitutions. So, why didn't the U.S. Constitution
explicitly recognize the right?

Because they couldn't and didn't want to ENUMERATE every possible
right,and maybe inadvertantly omit or deny other inherent rights.
IOW,they kept it simple.[KISS principle]

You are not disagreeing with the point I'm making-- that the RKBA for
self-defense and other reasons (not incl. in the 2nd) is an extension
of the rights of nature so obvious that they were not enumerated in the
U.S. Constitution (except where it can be said to be enshrined in the
ideas that make up the 2nd).

Defense of self is understood and not a part of a government
platform. It does not need government permission to occur nor does it
really need government protection to survive. The concern that the
anti federalists had at the time was tha the militias were to be
armed by the federal government in Article I, section 8, clause 16.
The state militias were to be drawn from the same pool of citizenry
as the federal usage of the militia was. Ergo, any failure of the
federal government to arm the militia would also invalidate the state
militias which were there to be a hedge against the federal
government accruing too much central power and threatening the
soveriegnty of the states.

The only answer that I can come up with is that it was so obvious--
and when taken together with the ninth amendment-- there's no need
to belabor the RKBA for self-defense. We have the right. Period.

We have always had the right. We gave a right to life, and doesn't
that mean that we also have a right to protect that life? It doesn't
need the Ninth Amendment.

It
isn't enumerated because-- like a right to life and the right to
self-defense and the right to procreate-- it is so fundamental to
human existence that it need not be enumerated. It's
"self-evident."

Yes.

HOWEVER, since the U.S. Supreme court tries not to create rights out
of thin air, the sensible thing for them to do would be to say that
the RKBA is "enshrined" in the meaning of the 2nd Amendment. Why is
the security of a free state important? To facilitate the
preservation of life.

No, IMHO, a free state refers to the individual state soveriegnty
from the central government and other states.

A collective right to defend the state ARISES
OUT OF the individual right to self-defense.

I would point out that the FF had no concept of "collective" rights.
People have rights,States or the Federal gov't have
-powers-,specifically enumerated [and LIMITED!!] by the Constitution.

Agreed.

Actually, no, it doesn't. An individual right to defense comes out
of the individuals rights, but the security of the state in the
Second Amendment is the state itself. A completely different
government from the federal one with its own soveriegnty. A big fear
of the anti- federalists in that period was that a stronger central
government (over what was in existence under the Articles of
Confederation) could allow the central government to overcome any
stata soveriegnty issues.
These folks had just come from a strong central government in
England. That is part of what they were trying to get away from but
the Articles of Confederation were simply too weak to allow the new
union of states to operate effectively as a single nation.

I don't want to split hairs on the idea of a collective right because
it isn't that important. (I certainly don't use the phrase to attempt
to suggest that there is no individual RKBAs.) The defense of the
state is certainly a collective thing. Does the state have a "right"
to self-defense? Or do the people who comprise the state collectively
have a right to defend the state?

Or are you saying that each person has the individual right to defend
the state? Because wouldn't that require that they do so only under
the command of the state? In other words, does the individual have a
right to defend the state in the absence of agreement from the state
government?

That's exactly why I say the 2nd doesn't lend well to the idea of an
individual right on its face. And that means having to rely on help
from the Ninth Amendment to establish the RKBA for self-defense-- as
problematic as that might be.

So, while I will agree
that the 2nd Amendment might contain an individual RKBA,

"Might",bullcrap;the FF had NO concept of "collective rights".

It has to.....without an individual RKBA, the militia which it was to
protect could not exist.

the U.S.
Supreme court needs to definitively recognize it as such,

Yes, but it won't.

The scumbags keep dodging every chance they get to set this right.

The ninth amendment: "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by
the people."

Griswold v. Connecticut, 381 U.S. 479 (1965):
''The language and history of the Ninth Amendment reveal that the
Framers of the Constitution believed that there are additional
fundamental rights, protected from governmental infringement, which
exist alongside those fundamental rights specifically mentioned in the
first eight constitutional amendments. . . . To hold that a right so
basic and fundamental and so deep-rooted in our society as the right of
privacy in marriage may be infringed because that right is not
guaranteed in so many words by the first eight amendments to the
Constitution is to ignore the Ninth Amendment and to give it no effect
whatsoever. Moreover, a judicial construction that this fundamental
right is not protected by the Constitution because it is not mentioned
in explicit terms by one of the first eight amendments or elsewhere in
the Constitution would violate the Ninth Amendment. . . . Nor do I mean
to state that the Ninth Amendment constitutes an independent source of
right protected from infringement by either the States or the Federal
Government. Rather, the Ninth Amendment shows a belief of the
Constitution's authors that fundamental rights exist that are not
expressly enumerated in the first eight amendments and an intent that
the list of rights included there not be deemed exhaustive.'' 7 While,
therefore, neither opinion sought to make of the Ninth Amendment a
substantive source of constitutional guarantees, both did read it as
indicating a function of the courts to interpose a veto with regard to
legislative and executive efforts to abridge other fundamental rights.
In this case, both opinions seemed to concur that the fundamental right
claimed and upheld was derivative of several express rights and in this
case, really, the Ninth Amendment added almost nothing to the argument.
But if there is a claim of a fundamental right which cannot reasonably
be derived from one of the provisions of the Bill of Rights, even with
the Ninth Amendment, how is the Court to determine, first, that it is
fundamental, and second, that it is protected from abridgment?
http://caselaw.lp.findlaw.com/data/constitution/amendment09/

There's some indication of the problem-- and why I think the RKBA for
self-defense will ultimately have to be considered as "enshrined" in
the 2nd amendment even where on tis face it might not be specific about
it.

...and the
federal government needs to enforce the right where it is
effectively prohibited. (Hence the approach in the model I've
presented.)

That Second Amendment protection only applies to the federal
government. It does not apply to the states.

That NEEDS correction.

I agree. Currently, the Second, Third and Seventh have not been
adjudicated as to apply.

I do not see why States were allowed to pick and choose what
Amendments they would support or ignore,being -signatories- to support
and uphold the ENTIRE Constitution as member States of the Union.

The states did not pick and choose......the USSC did by developing the
Incorporation Doctrine that Justice Frankfurter fought for. That prevent
total incorporation of the Fourteenth Amendment.



--
Sleep well tonight.........RD (The Sandman)

http://home.comcast.net/~rdsandman


People discuss self defense as if you have as much time to do it in as
they have to discuss it. In reality, you have a flash to identify the
threat and react. Whether or not you actually pull the trigger is
something that you have a microsecond to decide and a lifetime
to live with.
Mort.....2006

.



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