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Proposed change to second amendment

Posted by xthinker88 9 years, 2 months ago to Government
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I think the author just doesn't get it.

The founders pretty much botched the 2nd Amendment when they added the preamble. As a legal principle, a preamble to a law only ever comes into play for interpreting the law when the main clause of the law is not clearly written. You cannot get more clearly written in the English language than: The right to keep and bear arms shall not be infringed. Thus the preamble to that clause should never come into play. Just as the preamble to the Constitution is irrelevant to analyzing constitutional issues.
The Pennsylvania Constitution actually did it better:

The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. (Pa. Const. art. I, § 21) (1790).

Of course PA's gun laws violate its own constitution but that is a different issue.
SOURCE URL: http://www.washingtonpost.com/opinions/the-five-extra-words-that-can-fix-the-second-amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html


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    Posted by Zenphamy 9 years, 2 months ago
    Shall Not be Infringed. There is nothng else that need be said and certainly not listened to., It's really that simple.
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    • Posted by jpellone 9 years, 2 months ago
      You are right Zen but I think he is missing the bigger picture. He is looking at a "Well armed militia" as a state Army. In reality the militia is the citizens being able to protect against the government!!!
      Why should government agencies such as the EPA or HHS or many others that have nothing to do with the physical protection of the US have automatic weapons but the citizens cannot????
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  • 13
    Posted by frodo_b 9 years, 2 months ago
    "Fix" the second amendment? Like one fixes a game or a poker match is what he means. And of course, he has to start his essay with the emotional tug on the heart strings by reminding everyone of Sandy Hook, which may not have even happened btw.

    I'm sick and tired of these people control freaks. I don't refer to them as gun control freaks because their actual intent is to control people, not guns.

    His figure of 30K deaths -- almost 20K of those deaths are from suicide. I didn't bother looking up the number of people killed due to hunting and other accidents, so for the sake of convenience I'm going to consider the remaining 10K deaths to be homicides of some sort or another. Big. Frigging. Deal. In a nation with over 300 million people and almost as many guns, 10K people a year is way down towards the bottom of the list of how people die in this country. (Not that any murders are ok, but let's get our priorities in order here)

    One of the problems with the US v Miller case is that the members of the Supreme Court at the time were grossly ignorant of the types of weapons used by the infantry in the army. One of those weapons was, in fact, the sawed-off shotgun. So, even limiting the scope of the second amendment "to the uses of arms that were related to military activities" should allow for both sawed-off shotguns *and* automatic rifles.

    All of that aside, who cares what the Supreme Court has ruled. Regardless of what the original intent and purpose of that branch of government was, for over the past 100 years it has served mainly as a rubber stamp for the actions of the other two branches of government. Yes, they've rules some things unconstitutional, but that's been for the sake of decorum. The Citizens United case was the death knell for the last vestige of legitimacy of the Supreme Court.

    Since the organization was mentioned in the article, I want to add that I'm not a supporter of the NRA. Their position for supporting gun rights in the interest of sporting and hunting is disingenuous. Maybe their stance is the politically expedient one, but I would rather support JPFO -- Jews for the Preservation of Firearm Ownwership. They understand the real purpose to the second amendment. See the Warsaw Ghetto Uprising to understand why.

    I hope this doesn't step on anyone's toes or violate the rules of engagement, but I'm going to recommend that y'all look into JPFO. For one, they understand the real purpose of the second amendment. But just as, if not more, important, is that no one messes with the Jews. You tell someone that you're a member of the NRA and they're gonna label you a gun nut. Tell them that you're a member of JPFO and now you're bringing up the Holocaust and all of the Nazi atrocities and anti-semitism. It throws the libtard off balance, gives them pause to *maybe* think.
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    • Posted by dbhalling 9 years, 2 months ago
      Excellent points Of course the real basis for all Rights is Natural Rights which starts with the fact that you own yourself and therefore you have a right to self defense. Rights cannot be limited to certain ways of defending yourself.

      Excellent point about the NRA's position.

      I disagree with you on Citizens United (CU). I know this is not a popular position, but CU was based on well established law going back to before the Constitution. The reason corporations have rights is that they are owned by people. In the early 1800s a state essentially tried to make the take over a private university and argued the university (corporation) did not have rights This amounted to theft of the University by the state.
      If you care you might want to check out my article on point http://hallingblog.com/corporations-have...

      To limit a corporation's right to free speech is the same thing as limiting the right of free speech of the shareholders
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      • Posted by frodo_b 9 years, 2 months ago
        I agree completely. Our right to self defense isn’t a product of the second amendment. It exists because we exist. The second amendment only codifies that right into law.

        I may be putting my foot in my mouth because I didn’t read the whole case that you cited in your article. It is really long and I don’t have the time, so I skimmed it then read the judgement. My take from the judgement is that this was an issue of contracts.

        Respectfully, I stand by my stance on Citizens United. Limiting the free speech of a corporation is not the same thing as limiting the free speech of the shareholders. The shareholders, as natural people, already have the right of free speech, so giving their corporation the same right is tantamount to letting the shareholders double dip in the social and political arenas.

        If corporations are legally considered persons, and these persons are under the control of other persons (the shareholders) then isn’t that the equivalent of slavery? Would it be acceptable for a real-life slave holder to have his slaves vote and then claim fair-play?

        Corporations are not Natural Beings. They are legal fictions. As a result, their rights are not the same rights reserved to Natural Beings. Those rights are bestowed by Nature or God (depending on your belief system). The rights of corporations are bestowed by Man and can be as limited as Man chooses. To be correct, corporations have no rights. They only have privileges.
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        • Posted by $ blarman 9 years, 2 months ago
          You've got the definitions a little off. The Court didn't hold that corporations are individuals, but that there is no realistic way to separate the operations of a "corporation" in regards to its exercise of free speech from the individuals who work at or run the business. Therefore, any laws that restrain so-called "corporate" speech are in fact violating the First Amendment rights of individuals by proxy.
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    • Posted by NealS 9 years, 2 months ago
      "gives them pause to *maybe* think.", nah, it'll never happen. They have an agenda and there is nothing that can get in the way of that, not even the facts or the truth. It's like the Ferguson demonstrators, they have an agenda and the facts will not change that, period. And Al Sharpton will never be recognized for what he really does by that same group. It's also like me, you want my guns, then come and try to take them. I'm old enough now it doesn't matter what I do anymore, or how I go out.
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  • Posted by $ Susanne 9 years, 2 months ago
    It's obvious that said Supreme Court Injustice doesn't get it. All the anti-firearm hyperbole in his argument shows that clearly.

    He wants to make sure only the king and his government has firearms. Period. Not serfs like we the people or those who fought against King George's troops. People like Misjustice Stevens need to be retired from the bench.
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  • Posted by Temlakos 9 years, 2 months ago
    The preamble is actually an absolute phrase. When you use an absolute, you postulate whatever it asserts. You accept it as given. As indisputable fact.

    The problem is, people are twisting that phrase beyond recognition.
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    • Posted by $ blarman 9 years, 2 months ago
      Agreed. The preamble is simply stating the obvious - that a well-regulated militia (a citizen-based, armed group) is necessary for the preservation of freedom and liberty. This is a premise that any proponent of natural rights accepts as fact. Then comes the conclusion/derivation: that the _individual_ right to bear arms is necessary to promote the preservation of the _individual's_ freedom and liberty.

      In my opinion, anyone who looks at the Second Amendment with any degree of honesty can come to no other conclusion.
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  • Posted by j_IR1776wg 9 years, 2 months ago
    "I think the author just doesn't get it." He gets it x.

    He knows that the founding fathers were just a decade and a half away from having overthrown a tyranny.
    He knows that the Bill of Rights were added to prevent the government from becoming a tyrannical state.
    He knows that by chipping away at the 2nd Amendment, he and his kind move a step closer to again suppressing Americans under the dead weight of another tyranny.
    He knows full well what he is doing.
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  • Posted by Robbie53024 9 years, 2 months ago
    JPS is part of the oppressive progressive class, so no surprise that he would want to limit the ability of resisting gov't oppression to just those serving the gov't oppressors.
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  • Posted by strugatsky 9 years, 2 months ago
    Not a surprising statistical lie, coming from the Washington Compost: "Each year, more than 30,000 people die in the United States in firearm-related incidents." They "forgot" to mention that most of those deaths are actually police killing criminals, a number that is higher in areas of severe Second Amendment restrictions.
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  • Posted by livefree-NH 9 years, 2 months ago
    Some people miss the point, such as what that amendment is there for. The one just before it starts with five words, saying that "Congress shall make no law [...]" and sets the tone for this Bill of Rights. It says what this new government shall, and shall not do.

    I've thought about gun rights, and related to more recent disagreements about the right to take a picture or video of a cop.

    It seems to me that there is no harm in taking a picture, but instead, possibly doing something with that picture later, such as embarrassment, or libelous acts, etc. But recording the video and never watching it, can do no harm. Yet (some) cops will prevent the video from ever being recorded, since they can't trust you to act responsibly with it (or some such tortured reason). And they use the same logic taking guns away from people for what some "might" do. But oops, that gets us back to the First Amendment, and freedom of the press (even though it's not a printing press, but it still counts).

    Just like owning a gun, taking a video does nothing harmful by that alone. Or like they say in porn flicks, "it's not what you have, but how you use it." 1A protects porn flicks, too.

    The second amendment clarifies that this right of gun ownership is pre-existing. It says that the government is not allowed to infringe on that right.

    It stuns me as to how broadly the courts want to interpret the rights of The People in the First, yet not the Second.

    Deep Throat, piss Christ, and publishing the names and addresses of gun permit holders, all come under protections against government "abridging the freedom of speech", yet they are willing to differentiate between a rifle with a magazine with seven rounds in it, versus the same with eight, causing the actor to be convicted of a felony.
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  • Posted by johnpe1 9 years, 2 months ago
    I contend that the 2nd amendment simply recognizes
    a natural fact -- humans will defend themselves.
    if that involves a threatening glance, a verbal warning,
    a fist, a stick, a gun or a pushbutton, defense is an
    innate truth. . just shoot straight. . that is gun control. -- j

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  • Posted by PeterAsher 9 years, 2 months ago

    This treatise is “All over the map” in trying to justify removing the right to keep and bear arms.
    One of the “popular” arguments he attempts is using the wrong definition of “regulated.”
    The word, at that time and in the amendments writing was synonyms to “equipped.” As in “Regulars” being fully outfitted soldiers.

    Most significant though is the failure of most people to process the exact meaning of the amendments wording.

    The Amendment states a particular reason to not infringe on the addressed right.

    The wording acknowledges that right as already existing.

    You could repeal the Amendment and that would only result in the need for a militia no longer being a reason not to infringe!

    This is not a legal opinion; it is a semantic observation.

    As Francisco said "Some day my friend, you will learn that words have exact meanings!"

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  • Posted by ObjectiveAnalyst 9 years, 2 months ago
    Hello xthinker,
    Justice Stevens is quite mistaken, or trying to rewrite history and distort original intent. Ignorant or purposely deceptive, he is wrong and in need of education and correction.

    Who is the militia?

    "I ask sir, what is the militia? It is the whole people except for a few politicians."
    - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

    "No free man shall ever be debarred the use of arms."
    - Thomas Jefferson

    "The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
    - Thomas Jefferson (quoting 18th century criminologist Cesare Beccaria)

    "The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country."
    - James Madison

    "A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms."
    - Richard Henry Lee

    "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.... The great object is that every man be armed. Everyone who is able might have a gun."
    - Patrick Henry

    "The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
    - Samuel Adams

    More: http://www.buckeyefirearms.org/gun-quota...

    "To disarm the people is the most effectual way to enslave them."
    - George Mason
    Respectfully,
    O.A.
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    • Posted by Robbie53024 9 years, 2 months ago
      And George Mason hits the bullseye of the target. There are misguided stooges who desire gun control because of a naïve view of force, laws, and gov't, but most merely want to eliminate possible resistance to oppression and oppressors (mostly because they either support or are those oppressors).
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  • Posted by DeanStriker 9 years, 2 months ago
    the definition of "Arms" is and has been subject to the creativity of the various Rulers and their "laws". To me, if one owns a cannon or even a "weapon of mass destruction, those are "arms".
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  • Posted by DGriffing 9 years, 2 months ago
    The six additional words proposed by former SCOTUS justice Stevens is a transparent attempt to repeal the Second Amendment . Government is, by definition, an institution of physical coercion. Therefore no government militia or police force of any country ever needed a constitutionally guaranteed "right" to bare arms. The purpose of the constitution is to limit what governments can do in order to protect the rights of citizens. If Stevens' proposed change to the Second Amendment is enacted, it will invert the meaning of the Constitution by granting a "right" to government.
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  • Posted by freedomforall 9 years, 2 months ago
    Instead fix the con-gress, the executive branch, and the judicial branch by adding severe penalties enforced by the militia for any violation of the constitution.
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  • Posted by Herb7734 9 years, 2 months ago
    I am often astounded by the convolutions being brought to bear by those who would change or eliminate parts of the Constitution. No matter how clearly written, some wordsmith with an agenda will seize upon a word or phrase in order to point out why the item in hand should be changed or voided. Then, this leads to the opposition to the changer to be even more convoluted in the reply. (Present company excluded).I'll bet that even the 10 Commandments were probably originally written more simply, seeing that they were carved in stone (a laborious task at best).. They probably read -- Don't Kill, Don't Covet, etc. The way we know them today is most likely the work of those who thought the simplicity needed elaboration, and only made things more obscure. It finally came out when the guy who wrote Obamacare confessed that he deliberately wrote it in such an obscure way so that those reading it wouldn't be able to understand it. The Constitution is a really simple document and easily understood. The left hates it because instead of telling them what to do, it tells them what Not to do.
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  • Posted by ChuckyBob 9 years, 2 months ago
    I disagree that the preamble was a mistake. Read in context of Federalist Paper 46 it makes perfect sense. The Antifederalists argued that a strong federal government would have a strong standing army that could be used to subjugate the populace. The nascent nation had just won it's independence from such an army. So, when read in context (with my comments in parentheses) it says: "A well regulated Militia (I.e. standing federal army), being necessary to the security of a free State,(needed to protect the U.S. from invaders) the right of the people to keep and bear Arms, (to defend themselves from said sranding army) shall not be infringed."
    Federalist #46 is a good read for anybody wanting to understand the second amendment and should be required reading for anybody studying the constitution.
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    • Posted by 9 years, 2 months ago
      Except that a well regulated militia is NOT a standing army.
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      • Posted by plusaf 9 years, 2 months ago
        I got that from the Wikipedia description...
        http://en.wikipedia.org/wiki/Militia
        But I wonder what arguments JPS would pose in disagreement with that Wikipedia entry...

        Again, as usual, if you/we don't discuss the Definition of Militia to the point of agreement, discussing Regulation OF a 'well-regulated militia' and/or The Amendment Itself ... is moot.
        :)
        Just like arguing if something is "Fair" or not without defining "Fair." Or Moral, or,... or,...
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        • Posted by DrZarkov99 9 years, 2 months ago
          Actually, the issue of "militia" is not as ambiguous as many think. The U.S. legal code (#306, I think) defines unorganized militia as every able-bodied man over the age of 17 not already a member of military service (sorry, ladies, it was written before the issue of full equality was established law, but other such clauses have been ruled to apply to both sexes).
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          • Posted by plusaf 9 years, 2 months ago
            I'm not saying that, I think, Dr. Z... but I think that a lot of folks don't accept some others' Definition of 'Militia,' and until that happens, y'ain't gonna get too much agreement on what Amendment #2 "Really Means."

            That's why I usually interject the point into such 'discussions' that it's a good idea to settle the Definitions before plowing into the Discussion of the 'right or wrong' that might result. I think I'm becoming Socratic in my Old Age, or so I've been accused.... I gotta research that accusation some more... :)
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            • Posted by DrZarkov99 9 years, 2 months ago
              My point was that those who so conveniently choose to define "militia" as only the organized military do so without legal foundation. Of course, the current administration is an egregious offender in choosing which laws it wants to ignore, and which it wants to enforce. I simply provide the legal definition for those discussions.
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              • Posted by 9 years, 2 months ago
                My point is that the definition of militia doesn't matter if you understand that the preamble is irrelevant to the clearly worded main clause of the amendment.

                But that's too much to expect in our society. I've heard people argue that the Constitution's preamble supports the welfare state because it uses the words "general welfare"
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                • Posted by DrZarkov99 9 years, 2 months ago
                  Actually, some of the Founders recognized the danger of ambiguous statements such as "promote the general welfare". While most people concerned about Constitutional issues read the Federalist Papers, fewer read the Anti-Federalist Papers, which are astonishingly accurate in their predictions of how the Constitutional language will likely be abused to increase the power and authority of the central government.
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                  • Posted by plusaf 9 years, 2 months ago
                    Exactly! And at the same time, the folks who talk about General Welfare TODAY without defining what THEY mean by it, let alone what they THINK the Founding Fathers 'meant' OR how those definitions just MIGHT have changed over a century or two point three or more... :)
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  • Posted by wiggys 9 years, 2 months ago
    those who want to take away our gun rights will stop at nothing to try and do that. when i think that at least 1/3 of the citizens of the usa have a gun or multitudes of guns legally and we don't see them attacking each other but on occasion we see one of us try to stop a crime tells me that we have very responsible gun owners, by the same token those who commit crimes are not responsible legal gun owners. however those who would like to see our guns confiscated are blind deaf and dumb. there is no debate here, the 2nd amendment is as good as it gets and we need not add anything to it!
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  • Posted by dbhalling 9 years, 2 months ago
    The guy does not understand how rights work in the constitution, which is based on Natural Rights. A right can never be conditioned on something else. The right to bear arms follows directly from the right to self defense, which follows directly from the fact that you own yourself.

    Excellent point about preambles and the law. I agree that the founders botch the 2nd Amendment. I read an interesting article about the history of the 2nd amendment and the final wording. According to the article they were trying to combine two concepts, one about self defense and the right to own guns and another, which I don't remember exactly, about militias.
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  • Posted by voodoo59 9 years, 2 months ago
    This moron almost has you believing his absolutely false initial premise that the second amendment applies only to state militias! This is the "intellectual" tripe the left spoon feeds their acoytes daily. "Sounds good-written by a "respected" author, lots of awesome sounding data to back it up. It must be true!" JP Stevens was obviously educated well beyond his intelligence.
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  • Posted by $ jdg 9 years, 2 months ago
    As I understand it, it was perfectly clear at the time. It's only confusing to some people now because the words "regulated" and "militia" have changed meanings, at least in common usage (although the current legal definition of the militia at 10 USC 311 ( http://www.law.cornell.edu/uscode/text/1... ) still recognizes that word's original meaning).

    What changed is that most people became lazy, and assumed police would always be trustworthy. So they let the government become better armed than the rest of us. If we ever get a chance to undo that, we'd better not let it happen again, even if it means there'd be a few curmudgeons around with atom bombs.
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    • Posted by 9 years, 2 months ago
      Yes. So women, you're out of luck. You're not in the militia. And us older guys aren't either (geez, did I just lump myself in with the older guys? well, for the purposes of this definition yes.)
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  • Posted by CircuitGuy 9 years, 2 months ago
    Even if they did change the language to say "while serving in the Militia" there would be the question of what "the Militia" means. To me it means any law-abiding citizens; so the language would have no impact.

    The end of the article talks about "possible remedies for what every American can recognize as an ongoing national tragedy." This is precisely the type of decision-making the Bill of Rights is supposed to prevent. They wrote the Bill of Rights for times of tragedy, when people feel scared and willing to give up rights to solve some immediate problem.
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