Proposed change to second amendment
Posted by xthinker88 9 years, 4 months ago to Government
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.
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.
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.
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.
In my opinion, anyone who looks at the Second Amendment with any degree of honesty can come to no other conclusion.
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.
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"
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... :)
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.
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????
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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