Privledge vs Right? and other 2nd Amendment questions.

Pele · #1 12-11-2008, 05:50 AM

Just for the record, I'm pro second amendment. I just want to get a few definitions straight.

Here's the exact wording from the little pocket sized version of the Constitution that I have on me.

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

Couple of questions:

What exactly counts as "Arms"?
Could a rocket launcher be covered? Mortar? Flame thrower? Truckload of fertilizer and heating oil?
Nuclear InterContinental Ballistic Missile with Multiple Independent Reentry Vehicles?
Where does one draw the line at what Arms are appropriate for a civilian?

Who counts as "the people"?
Perhaps I've held up my share of banks and retail stores. Hey, it pays better than a 9 to 5, AND you don't have to deal with those pesky W2 or 1040 forms. Maybe I've even wounded someone or worse... I still retain my American citizenship. Don't I still count as "the people"?
Where does one draw the line at who gets what rights when they've proven to abuse them?

And what's with that bit on a Militia? Or those words just previous, "well regulated"? How do those come into play?

I'll get a little more on those from Webster's. I can't access this site at work. It comes up as "Access Denied - Illegal Content"... Must be because I work in D.C.

tattedupboy · #2 12-11-2008, 06:11 AM

Good subject for a thread. I know I'm going to be met with some resistance on this part, but as for "arms" I believe that the term was only intended to cover firearms, muzzleloaders, and blackpowder rifles; basically, anything that shoots a projectile with the squeeze of a trigger.

As for the people, I believe it to mean all citizens and people who are here legally; does not apply to illegal aliens. As for who cannot possess "arms" I believe that the 14th Amendment covers that,(nor shall any State deprive any person of life, liberty, or property, without due process of law), meaning that anyone who is imprisoned can be deprived of their rights, including RKBA, as long as they've been given due process.

Finally, as for the militia, the founding fathers understood that to mean all able bodied males.

Onlinedad · #3 12-11-2008, 08:45 AM

I agree that at the time of its writing "Arms" probably reffered to the available weapons at the time. However since technology has improved in our Arms capabilities, and selections. I think we should all have the right to have what ever we want to buy. Shouldnt a well regulated militia have tanks, and helos, and what ever else? Wouldnt these be neccassary for a free state, IF it had to compete with the State's military/govt?

I do believe that there are some people that should not be able to own firearms, but they are the people who have had the legal due process that has had good reason to take away that right (rapists, murderers)

And since we are asking legal questions, here is one of mine to throw in:

So, if the 2A protects our RKBA, then how do some states/cities pass laws and ordinances banning/restricting gun rights?
If I have a CCW for a state, and in that state there is a city that has an anti ccw ordinance, then wouldnt that city be illegally overriding the constitution? In which case I could/should still be able to carry, since I am protected by the constitution to do so?

ronwill · #4 12-11-2008, 08:47 AM

Let's look at a founding father's statement on arms:

George Washington: "Firearms stand next in importance to the Constitution itself. They are the
people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than
99% of them [guns] by their silence indicate that they are in safe and sane hands. The very
atmosphere of firearms everywhere restrains evil interference [crime]. When firearms go, all goes,
we need them every hour." (Address to 1st session of Congress)

This leads me to conclude that "arms" are those used for self defense. Weapons of mass destruction (WMD) would not be included in this and who wants anyone running around with a nuclear or biological device anyway? Any small arm designed to be carried by an individual and primarily used as self defense should be included. I don't believe this includes flame throwers, bazookas, grenades, etc.

NDS · #5 12-11-2008, 10:06 AM

Quote:

Originally Posted by Pele

Just for the record, I'm pro second amendment. I just want to get a few definitions straight...

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf
It's a long read but it's the current last word on your questions. Every time I read it I think of something new that might be addressed in future litigation...

HK4U · #6 12-11-2008, 05:53 PM

The following has a good, and cheap little book on the Second Amendment. It is a good sourse for info on the constitution and other writings as well. Very conservitive.

WallBuilders - The Second Amendment (Paperback)

wuzfuz · #7 12-11-2008, 07:21 PM

Whenever one discusses the Second Amendment, it is necessary to go back to the era of our Founding Fathers, to use the language they used when they framed these documents. Language is a living thing, constantly changing. However, the intent of the FF was clearly understood by everyone in the late 1700s. Here is a breakdown, using the language of the time.

A well-regulated militia - To the Founding Fathers, and the other citizens of the early United Staes, well-regulated had only one meaning, well-trained. The militia was ALL male adults from the age of 18 to 45, I believe. Each man was required to maintain a musket, powder and lead and a rucksack of necessary supplies, and report for training with his weapon on a regular basis, and be ready to heed the call to defend his town if needed. If a man could not afford a musket, the commander of the militia would see to it that he received one.

being necessary to the security of a free state- The Founding Fathers did not trust a strong central government, they had just kicked one off the continent and did not want a new one to replace it. The FF knew that it took an armed, trained citizenry to defend their homes and towns , and by extension, the state, from enemies of whatever stripe.

The right of the people- It is clear here, that it is a collective right of the population, each citizen individually, not given over to a quasi-federal force. Anytime you see the word people in the Declaration or Constitution, it means the population of the fledgeling country.

To keep and bear arms- Arms, as mentioned here, meant the latest technology in weaponry, the smooth-bore musket, which was used by every modern army in the world at that time. In short, if there had been an assault rifle at the time of the American Revolution, each citizen would have been expected to have an assault rifle in his closet, and be well-trained in it's use and maintenance.

Shall not be infringed - Shall not be tampered with or weakened by government fiat, or whim of a possible despot. The right to maintain the means to defend one's self, their families, their homes and their community was a God-given right that no one had the power to modify or cancel.

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. It was as plain as language could be 200 years ago, and nothing all the Philadelphia lawyers can do to twist language around will ever change the original intent of the Founding Fathers.

If we lose the Second Amendment, then we have no way to defend the other nine amendments. We will have lost all.

gdcleanfun · #8 12-12-2008, 06:29 PM

Quote:

Originally Posted by Skindad88

I agree that at the time of its writing "Arms" probably reffered to the available weapons at the time. However since technology has improved in our Arms capabilities, and selections. I think we should all have the right to have what ever we want to buy. Shouldnt a well regulated militia have tanks, and helos, and what ever else? Wouldnt these be neccassary for a free state, IF it had to compete with the State's military/govt?

I do believe that there are some people that should not be able to own firearms, but they are the people who have had the legal due process that has had good reason to take away that right (rapists, murderers)

And since we are asking legal questions, here is one of mine to throw in:

So, if the 2A protects our RKBA, then how do some states/cities pass laws and ordinances banning/restricting gun rights?
If I have a CCW for a state, and in that state there is a city that has an anti ccw ordinance, then wouldnt that city be illegally overriding the constitution? In which case I could/should still be able to carry, since I am protected by the constitution to do so?

For the most part, I agree with your statement that arms should be all arms. (Or, more specifically and imho, those that can be legally obtained. Is it up to the citizenry to fight for the right to possess all that they want? Maybe that's another thread?) The word arms means any weapons, not just firearms, according to Dictionary.com. Because something was not in existence or use when the Bill of Rights was written does not mean that it's automatically excluded. If that were the case, the long-standing and beloved Colt .45 1911 pistol would be taboo. Along the same line of reasoning, the First Amendment was written without the internet but the internet is now and forever "covered" by it. The Constitution and the Bill of Rights were written to be "living documents," meaning they will cover such issues as they arise, now and in the future, and not just to cover those issues that were issues back then.

Pele · #9 12-13-2008, 08:50 AM

Well, it seems that we're all in agreement that Arms are intended for self defense...

Let me play devils advocate:

Why does one need an AR-15, AK-47, or any such assault rifle for self defense?
Why does one need a 15 round magazine for self defense? If you're not getting the job done in 7 rounds, you're most likely not going to get it done at all.
Why would one need an M1 Garand, Thompson Submachine gun, or any of the other various ex-military or generally higher power/fast fire rate gun that's on the Curios and Relics list?
(I'm applying for my C&R FFL specifically for some more modern WWII era guns.)

These seem excessive for self defense.

tattedupboy · #10 12-13-2008, 09:35 AM

Quote:

Originally Posted by Pele

Well, it seems that we're all in agreement that Arms are intended for self defense...

Let me play devils advocate:

Why does one need an AR-15, AK-47, or any such assault rifle for self defense?
Why does one need a 15 round magazine for self defense? If you're not getting the job done in 7 rounds, you're most likely not going to get it done at all.
Why would one need an M1 Garand, Thompson Submachine gun, or any of the other various ex-military or generally higher power/fast fire rate gun that's on the Curios and Relics list?
(I'm applying for my C&R FFL specifically for some more modern WWII era guns.)

These seem excessive for self defense.

The Second Amendment spells out a right, something that need not be justified on the basis of a NEED. If arms were only allowed to be owned on the basis of a need, then who's to stop the government from requiring other constitutional rights (such as freedom of religion, speech, etc.) to be exercised only on the basis of "need?"