Re: THE GREAT GOOSE GOOFS AGAIN was Re: What is an "Individual Right"?

The Lone Weasel wrote:
Steve Krulick <krulick@xxxxxxxxxxx> said:

I remember arguing with Steve about something; one time we
argued just to get GUNBORG reactions, but we did have some
real differences of opinion...
The only serious disagreement I recall having with Lee was
over the terms in the Pennsylvania Constitution; he felt
that the use of the word "themselves" referred to an
individual right, whereas I said, and supported with cites
(like Aymette), that the term was still in a military (or
more likely police) context of common defense, in which the
right was of THE PEOPLE "themselves" to act together
(collectively) to defend "themselves" in the local sense as
distinct from "bearing arms" to repel invaders or otherwise
act on orders from state or national authorities.

Here I was only correcting Lee of an error and suggesting
he admit to it and be done with it.

This article by Nathan Kozuskanich says "in defence of themselves" is about civic duty which would make both of us wrong in part and partly correct:

I stand by what Judge Green said in Aymette:

"And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the state, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence."

---

This is simply the most un-affected term that can be used to refer to common defense of entities smaller than the state itself. That is, the PEOPLE of a town or county have the right to common defense of THEMSELVES just as much as the PEOPLE of the state.

I included two other cites that support my interpretation:

The Right To Be Armed: A Constitutional Illusion

by Dennis Henigan, Director, Legal Action Project

(Originally published in the San Francisco Barrister, December, 1989)

(http://www.gunlawsuits.org/defend/second/articles/illusion.php):

"Then there’s the original Virginia Bill of Rights, the first adopted, that expressed both the colonists’ allegiance to the idea of a citizen militia and their fear of standing armies:

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power." Reprinted in Sources of Our Liberties 312 (Perry & Cooper ed. 1959)

There is little doubt that this provision of the Virginia Bill of Rights was concerned exclusively with the distribution of military power and the proper role of the military in a free society. The language makes no suggestion of a right to bear arms.

[In fact, the word "right" or "rights" isn’t mentioned AT ALL! So THEY considered it A RIGHT, of ITSELF, that a well regulated militia for State defense merely EXISTED!]

The first state to adopt such language was Pennsylvania, which did so as part of its constitutional provision addressing military matters:

[Let me repeat THAT: "which did so as part of its constitutional provision addressing military matters"]

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

Other state constitutions proceeded to adopt variations of either the Virginia or Pennsylvania models. The states which included "right to bear arms" language did so in the context of provisions dealing with military matters.

[Let me repeat THAT: "did so in the context of provisions dealing with military matters"]

....Thus, there is no indication from the history of the 2nd Amendment that the Founders were seeking a broad guarantee of the individual right to own firearms for any purpose. On the contrary, the expressed intention of the framers was to guarantee that state militias remained armed and viable, and the "right to keep and bear arms" must be understood as implementing that purpose. The implication of this intention is that the constitutionality of a statute regulating firearms should turn on whether the statute affects firearms in such a way as to adversely affect a state’s ability to raise and maintain an armed "well-regulated militia."

---

Obscuring the 2nd Amendment

by Mark D. Polston

(http://www.gunlawsuits.org/defend/second/articles/obscuring.php):

Second, [Linda K.] Miller implies that four state constitutions recognized an inalienable and individual right to keep and bear arms, the origins of the Second Amendment the textbook authors ignore. But two of the states expressly limited this right to defense of country.

Virginia’s Constitution of 1776 -- which did not contain a right to bear arms, contrary to Miller’s article -- championed the militia and warned against standing armies:

"That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to and governed by the civil power. "

Pennsylvania’s Declaration -- Miller’s model of the inviolable, individual right to bear arms -- also expressly warns against standing armies. But instead of balancing a "militia clause" against a standing army, Pennsylvania substituted an "arms clause." Just as in Virginia, that clause also preceded the warning against a standing army and stated "[t]hat the people have a right to bear arms for the defense of themselves and the state." Rather than establishing an inalienable and individual right to bear arms, it assured the supremacy of the militia.

[Let me repeat THAT: "Rather than establishing an inalienable and individual right to bear arms, it assured the supremacy of the militia."]

-----

Finally, I have to laugh at Frank's lame reply!


He makes more blatant ad hom assertions, but utterly fails to refute a word I said, as usual!

I am a great proponent of personal liberty, as was Madison, who thought the highest freedom was freedom of conscience (most of those individual rights he proposed come under that umbrella), but I also proclaim, as did Madison and his peers, the need to balance liberty with duty and shared responsibility among the members of the body politic. Or, as Madison said in the Virginia Ratification debates: "What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all." (3 Elliot's Debates 413)

I think I've shown, by my cites, and even my writing style, that I'm more in sync with the Founders than Frank could ever be! (You think *I* write "so many words"?!! Take a look at a typical Madison or Hamilton essay! Small minds, like Frank's, simply can't handle complex, detailed, and comprehensive arguments!)

Once we move out of a state of Nature into a social order, each
individual ceases to be an individual sovereign.

The consent to be governed means citizens, put themselves under
law and government and create sovereign public authority. The
consent to be governed does not create an ad hoc voluntary
association. This distinction was understood and addressed at
the time of the American Revolution. Alexander Hamilton wrote in
Federalist Paper No. 33:

If individuals enter into a state of society, the laws of that
society must be the supreme regulator of their conduct. If a
number of political societies enter into a larger political
society, the laws which the latter may enact, pursuant to the
powers intrusted to it by its constitution, must necessarily be
supreme over those societies and the individuals of whom they
are composed. It would otherwise be a mere treaty, dependent on
the good faith of the parties, and not a government, which is
only another word for POLITICAL POWER AND SUPREMACY. [caps in
original]

A constitutional govt with "just powers" is the solution to an
anarchistic state of nature AND tyranny, the middle ground
between too much and too little commonwealth power. Individuals
give up certain rights and sovereignties in exchange for others.

John Locke explained in §§ 123-130 of the The Second Treatise
that men enter into political community out of the State of
Nature for three reasons: 1. there is no common agreement on
what natural rights are which makes the State of Nature "full of
fears and continual dangers," 2. there is no "known and
indifferent judge with authority to determine all differences
according to the established law", and 3. there is no "power
[sovereign public authority] to back and support the Sentence
when right, and to give it due execution." These reasons are why
we have the rule of law.

Courts can't address uncodified natural rights! Until they are
made an agreed-upon part of the social contract, who can
determine WHICH rights are Natural and how far they extend? It's
just your opinion vs. mine!

If governments are instituted among men to secure "certain
unalienable rights," government must have "just powers." If
government is to have just powers, citizens must give
obligation. Just powers include the power to enforce the
obligation, but just powers do something more. They maintain the
rule of law and a civic culture of public trust. Otherwise, we
are on our own, trying to secure our "unalienable" rights in the
State of Nature, which is the state of anarchy.

The state of New Hampshire went so far as to write the
fundamental concept into its 1784 Bill of Rights:

"When men enter into a state of society, they surrender up some
of their natural rights to that society, in order to insure the
protection of others; and, without such an equivalent, the
surrender is void."

The first natural right they surrender up is Locke's "executive
power of the law of nature." Otherwise, there is no political
community, no "just powers" of government, and no political
obligation— no pledge of allegiance, as we say, "to the flag and
to the republic for which it stands." There was no controversy
at the time over what was stated in the 1784 New Hampshire Bill
of Rights.
.

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