Is the 2nd Amendment an anachronism?

[Scumpup]

Yes.

[Little Nemo]

Originally Posted by Abatis

You didn't answer the question.

How does the principle of inalienable rights mesh with what you are advocating?

In my defense, you're posting a lot of questions.

There's no such thing as an inalienable right. Do people have inalienable rights in North Korea? No. So obviously rights can be taken away by the government.

You've misunderstood Locke. He didn't say it was impossible to alienate rights. He said it was morally wrong to do so.

So could the United States be changed into a dictatorship? Sure, other countries have become dictatorships and there's nothing special about the United States. Would that be constitutional? Yes, if we rewrote the constitution, it would by definition be constitutional. Would it be morally right? No.

You're confusing morality with legality. It's good when they connect but they don't have to. Something can be illegal and moral or it can be immoral and legal. The Constitution is just a set of laws and therefore is not inherently moral. It could be rewritten into an immoral set of laws and still be a legal document.

[Scumpup]

Originally Posted by Little Nemo

You're confusing morality with legality. It's good when they connect but they don't have to. Something can be illegal and moral or it can be immoral and legal. The Constitution is just a set of laws and therefore is not inherently moral. It could be rewritten into an immoral set of laws and still be a legal document.

That's some good, clear thinking right there.

[Really Not All That Bright]

Originally Posted by Scumpup

Yes.

Oh. Carry on, then.

[Lumpy]

Originally Posted by Little Nemo

In my defense, you're posting a lot of questions.

There's no such thing as an inalienable right. Do people have inalienable rights in North Korea? No. So obviously rights can be taken away by the government.

You've misunderstood Locke. He didn't say it was impossible to alienate rights. He said it was morally wrong to do so.

If I'm not mistaken, Locke and the Declaration of Independence meant "inalienable" in the moral, metaphysical sense that some things are inherently part of human nature- not that they can't be violated in practice.

[Boyo Jim]

Tell all the people who've been executed that they have an inalienable right to life.

Oh, I forgot, you can't.

[Abatis]

Originally Posted by jtgain

Abatis. I agree with what you are getting at but you are framing it wrong. An amendment which took away basic rights would certainly be constitutional by its very definition.

However, that would then likely make our constitution no longer the grand document that it is which protects natural rights. Perhaps it would be our "right and duty" as Jefferson said, to do another 1776 and find new leaders who will protect those fundamental rights.

Perhaps I am framing it wrong because your second paragraph is my general position . . . An amendment rescinding a provision of the Bill of Rights (which has never been understood to grant the particular right) to enable government to "unprotect" the right and actually move against it, is an act that so injures the original purpose of the compact that the compact is from then on, void.

I was truly amazed by the answers to my question earlier asking (emphasis added):

what if the government nullified the 4th, 5th, 6th, and the 8th provisions in the Bill of Rights?

Would the government then be legitimately empowered, to search and arrest a citizen without warrant, torture a confession out of him, convict him in a kangaroo court without benefit of counsel, then take him immediately outside and have him hung, drawn and quartered?

The framers had a very specific definition of what a "legitimate" government is. To say that the Constitution would permit itself to violate the principles of its establishment and to actually be mutated into what it was established to preclude, and say that it will continue to enjoy the legitimacy to govern, is wrong.

[Little Nemo]

Originally Posted by Abatis

Perhaps I am framing it wrong because your second paragraph is my general position . . . An amendment rescinding a provision of the Bill of Rights (which has never been understood to grant the particular right) to enable government to "unprotect" the right and actually move against it, is an act that so injures the original purpose of the compact that the compact is from then on, void.

The framers had a very specific definition of what a "legitimate" government is. To say that the Constitution would permit itself to violate the principles of its establishment and to actually be mutated into what it was established to preclude, and say that it will continue to enjoy the legitimacy to govern, is wrong.

Is this like one of those arguments that income tax is illegal? Because you can declare that the government has become "void" but nobody else is going to see it that way. The police will still arrest you, judges will still convict you, the prison system will still lock you up, and the general public will have no problem with any of that. And you can sit there and say it's all wrong. But in the battle between you and the world, the smart money's on the world.

[Abatis]

Originally Posted by Boyo Jim

There are NO inalienable rights in the constitution.

Well, not "in" the Constitution (for they are inalienable) but they certainly have been recognized time and time again* as belonging to the citizen and are to be protected by government (to the extent that "inalienable" rights can be protected by government).

Originally Posted by Boyo Jim

There is no inalienable Right to Life -- the state can execute you. There is no unalienable Right to Liberty -- the state can imprison you.

You are not demonstrating that you know what an "inalienable right" is, or what the term means in the context of the US Constitution. Due process does not violate inalienable rights because we the people have conferred prosecutorial and punishment powers to government. As long as the punishment is not arbitrary it is not a violation.

Inalienable rights are not universal, they do not exist for everyone everywhere (those would be inherent rights) so there are no inalienable rights under other forms of government and there are no inalienable rights in the interactions of private citizens (criminal acts or master/slave) or from injury in the natural world. . .

Inalienable rights only have meaning between a sovereign people and the government they are establishing BY SURRENDERING POWERS & RIGHTS and then, only at the point of establishment of said government. IOW, "inalienable rights" is a meaningless concept without a sovereign people establishing a government and then NOT surrendering certain powers to it . . .

To the point of our present discussion, if those rights can not be legitimately surrendered, and no legitimate government could accept that surrender if it is offered, no legitimate government can move to harm those rights (even if an amendment can be structured to retroactively "give" government the power). The condition of "inalienable rights" is closed at the sealing of the compact . . . it can not be revisited without destroying the compact.

To explain, inalienable rights only have significance at the very genesis of the establishment of the social compact that empowers government and then, only in/under the type of compact / government founded on the following principles:

a) all governmental power is derived from the people
b) government possesses only the limited powers specifically conferred (surrendered) to it, by the people.
c) there exist certain powers over one's self that are too important to ever be surrendered to the care of another (un/inalienable rights).
d) no legitimate government (one established to protect the rights of the people) would accept the surrender of those powers if it were to be offered.

After the compact is sealed and the government is empowered, one can judge the legitimacy of a government by how it treats the inalienable rights of the citizen. The violation of inalienable rights is an action that de-legitimizes a government empowered by a Constitution founded on the above principles.

So, my question stands:

How does the principle of inalienable rights mesh with what you are advocating?

--------------------------------

*

"From these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. . . The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution . . . " -- VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

"The right to follow any of the common occupations of life is an inalienable right, it was formulated as such under the phrase 'pursuit of happiness' in the declaration of independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen. To deny it . . . is to invade one of the fundamental privileges of the citizen, contrary not only to common right, but, as I think, to the express words of the constitution. It is what no legislature has a right to do; and no contract to that end can be binding on subsequent legislatures. . ." -- BUTCHERS' UNION CO. v. CRESCENT CITY CO., 111 U.S. 746 (1884)

"Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted. " -- BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)

"As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. . . To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution." -- ULLMANN V. UNITED STATES, 350 U.S. 422, (1956)

[Abatis]

Originally Posted by Boyo Jim

YOUR analysis, YOUR claim. So, you can't find any other source than your own opinion, and some two hundred year old writing that somehow DIDN'T get cited in the constitution.

At least I have offered -something- other than my opinion to support my point. This is a discussion that for now only resides in the philosophical because no such amendment has been seriously proposed or debated. We are both arguing opinion, hypotheticals and political philosophy. None of us have solid past practice to appeal to for support (thankfully).

Originally Posted by Boyo Jim

Marbury was about striking down LAWS passed by Congress that conflicted with the constitution. It says nothing whatsoever about amending the constitution to change the powers of the government, and therefor change what laws may now be written, which would have been found unconstitutional in the past, but could be found to be perfectly constitutional afterward.

But the amendment procedure is a process that falls within the powers of the legislature. Just because an amendment is being debated doesn't put the Congress into a super-double top secret constitutional zone where the inherent limits of the document no longer exist.

Marbury speaks of the fundamental principles being unchangeable by any legitimate power that the government established by the Constitution can be said to possess. If there is another interpretation of Marbury then please present it.

Originally Posted by Boyo Jim

Let me suggest one current movement to revise the constitution -- a proposed amendment to limit the legal concept of "personhood" as it applies to corporations.

Go for it, sounds good to me . . .

[Abatis]

Originally Posted by Little Nemo

Is this like one of those arguments that income tax is illegal? Because you can declare that the government has become "void" but nobody else is going to see it that way. The police will still arrest you, judges will still convict you, the prison system will still lock you up, and the general public will have no problem with any of that. And you can sit there and say it's all wrong. But in the battle between you and the world, the smart money's on the world.

I would argue that the "self evident truths" aren't so self evident in our modern, enlightened condition . . . and with that comes a government that no longer respects the limits placed on it.

The substitution of second generation "rights" for true liberty has consequences.

[Little Nemo]

How about we stop talking about TRUTH and get back to talking about reality?

[XT]

Well, in that case, the reality is that a large percentage of the American public does NOT believe that the 2nd is 'an anachronism', nor is there any real traction to either have the Amendment struck down OR struck down and replaced with a new one making personal possession of 'arms' illegal. The reality is that firearms possession is part of American culture, so attempts to compare it to what other countries do or think is useless...just as trying to compare their cultural foibles to ours is equally silly and useless. The reality is that until this changes, private gun ownership, regardless of how odious some find it and think the concept is outmoded or outdated, as well as dangerous, is with us and we collectively have to deal with it in the real world, not fantasy. The reality is that while gun ownership is protected, there is nothing in the Constitution or BOR that says it can't be regulated, as long as out and out bans aren't attempted. Free speech is regulated, after all, and certain constraints have been put on it and enforced, so firearms can be as well.

-XT

[John Mace]

Originally Posted by Abatis

Perhaps I am framing it wrong because your second paragraph is my general position . . . An amendment rescinding a provision of the Bill of Rights (which has never been understood to grant the particular right) to enable government to "unprotect" the right and actually move against it, is an act that so injures the original purpose of the compact that the compact is from then on, void.

I was truly amazed by the answers to my question earlier asking (emphasis added):

what if the government nullified the 4th, 5th, 6th, and the 8th provisions in the Bill of Rights?

Would the government then be legitimately empowered, to search and arrest a citizen without warrant, torture a confession out of him, convict him in a kangaroo court without benefit of counsel, then take him immediately outside and have him hung, drawn and quartered?

The framers had a very specific definition of what a "legitimate" government is. To say that the Constitution would permit itself to violate the principles of its establishment and to actually be mutated into what it was established to preclude, and say that it will continue to enjoy the legitimacy to govern, is wrong.

But the thing you are missing is that we are assuming such a nullification would happen through the amendment process. That would mean the nullification had overwhelming popular support. It would be THE PEOPLE doing this, not some disembodied "government".

That would leave you like the modern day militia/survivalist movement-- a fringe group fighting against the vast majority of the population who enacted changes to the constitution through a legitimate, democratic process.

Of course is far fetch that such a thing would happen, but it's a hypothetical. That's all.

[Little Nemo]

Originally Posted by XT

Well, in that case, the reality is that a large percentage of the American public does NOT believe that the 2nd is 'an anachronism', nor is there any real traction to either have the Amendment struck down OR struck down and replaced with a new one making personal possession of 'arms' illegal. The reality is that firearms possession is part of American culture, so attempts to compare it to what other countries do or think is useless...just as trying to compare their cultural foibles to ours is equally silly and useless. The reality is that until this changes, private gun ownership, regardless of how odious some find it and think the concept is outmoded or outdated, as well as dangerous, is with us and we collectively have to deal with it in the real world, not fantasy.

For the most part I agree with this. But I feel there is room for a discussion as to whether the reasons for a right to gun ownership are still valid. Public debate, after all, is an exercise of the equally valid First Amendment. I don't think there's any right so sacred that it should be put beyond discussion of whether it deserves its sacred status.

Originally Posted by XT

The reality is that while gun ownership is protected, there is nothing in the Constitution or BOR that says it can't be regulated, as long as out and out bans aren't attempted. Free speech is regulated, after all, and certain constraints have been put on it and enforced, so firearms can be as well.

On that issue, what do you feel is a reasonable amount of regulation? Do you feel that there are limits that can set on gun ownership within the Second Amendment? Or do you feel that regulation of gun ownership should essentially consist only of record keeping? From your statement, I assume you don't hold with the view that record keeping itself is an unacceptable limitation on gun ownership.

[XT]

Originally Posted by Little Nemo

For the most part I agree with this. But I feel there is room for a discussion as to whether the reasons for a right to gun ownership are still valid. Public debate, after all, is an exercise of the equally valid First Amendment. I don't think there's any right so sacred that it should be put beyond discussion of whether it deserves its sacred status.

I don't think there is any need for a public debate on whether the rights protected in the 2nd are still valid, but I'm not opposed to one if that's what people want. I'm pretty confident that at this time and place the majority of Americans are still going to agree that a personal right to keep and bear arms should be protected by the constitution. If anything, it would be to get rid of the first part of the Amendment, or do as was originally intended and break it into two separate parts addressing two separate issues, then cut out the first one which IS no longer needed.

To my mind, though, the only reason for a pubic debate about this is if there are enough Americans who want to eliminate the 2nd completely to justify going to the bother of such a formal public debate. AFAIK, there aren't enough to justify it at this time, so to me it would be a waste...though, perhaps having such a debate would point out why threads such as this don't reflect the views of the majority of Americans.

On that issue, what do you feel is a reasonable amount of regulation? Do you feel that there are limits that can set on gun ownership within the Second Amendment? Or do you feel that regulation of gun ownership should essentially consist only of record keeping? From your statement, I assume you don't hold with the view that record keeping itself is an unacceptable limitation on gun ownership.

Well, to ME a reasonable amount of regulate would be registering firearms and possibly regulations for licensing (sort of like a drivers license) showing you have the basic knowledge of firearms and more importantly firearms safety for a minimal ownership license, then going up if you wanted conceal carry or open carry licensing. These licenses would also cover types of gun ownership, so you could get a basic handgun or rifle/shotgun license showing basic levels of competency, and go up to more exotic weapons the more skill and training you are able to demonstrate. To me this is superior to simply banning guns because they look scary (I think that legislators should have to know the bare minimum amount of understanding of firearms to be allowed to propose such legislature...clearly, some of the gun bans of the past were done by people who were, sadly to say, idiots without much understanding of the weapons they were banning). Certain TYPES of weapons, say actual military grade weapons (defined as full automatic or selective fire, explosive or armor piercing, rocket based, etc etc) could require highly specialized and restricted licenses.

The devil is in the details, obviously, and I'm sure folks on both sides would howl about the above...it's just my 5 seconds of thought about the problem and a possible solution. In principle though, I don't have any problem with the government regulating the sales or ownership of firearms as long as it doesn't conflict with the spirit of the 2nd, which to me is that a free citizen has the right to keep and bear arms. Like I said, the government obviously does restrict the right to free speech by making certain things illegal (child porn, say) or highly restricted (highly classified government and military documents), so the same sorts of things would fall within the governments sphere of actions wrt 'arms' as well IMHO.

-XT

[Little Nemo]

Originally Posted by XT

I don't think there is any need for a public debate on whether the rights protected in the 2nd are still valid, but I'm not opposed to one if that's what people want. I'm pretty confident that at this time and place the majority of Americans are still going to agree that a personal right to keep and bear arms should be protected by the constitution. If anything, it would be to get rid of the first part of the Amendment, or do as was originally intended and break it into two separate parts addressing two separate issues, then cut out the first one which IS no longer needed.

To my mind, though, the only reason for a pubic debate about this is if there are enough Americans who want to eliminate the 2nd completely to justify going to the bother of such a formal public debate. AFAIK, there aren't enough to justify it at this time, so to me it would be a waste...though, perhaps having such a debate would point out why threads such as this don't reflect the views of the majority of Americans.

I think the position some people would take is that at this point they're advocating to raise public awareness. They feel that a repeal of the Second Amendment is a good idea so they're pointing out the reasons for this belief in order to develop public support. They might see themselves as the equivalent of the abolitionist movement around 1830 (or the temperance movement around that same period) - they're a small minority and have no hope of seeing their beliefs enacting into law but they hope that by advocating their beliefs they will grow into a larger movement in the future.

[XT]

Well, as I said, I'm not opposed. Folks who want to do this can knock themselves out. That's the beauty of our system...nothing, in the end, is off the table, as long as you can generate sufficient support and traction. I'd welcome the debate...it would be a hell of a lot better than the backdoor methods used in the past, IMHO.

-XT

[BigAppleBucky]

Without wading through the entire thread, it's easy to see that the 2nd amendment will be the last operative of the ten amendments in the Bill of Rights. We've pretty much done in with the rest of them.

[JQPublic]

I'm not saying I'd ban all guns. But I think we should have some reasonable standards over who owns guns, how many guns they own, what kind of guns they own, and where they can use those guns. I think we should regulate guns to approximately the same level that we regulate automobiles.[/quote]


You mean like make it illegal for felons to have guns?
There are already very resonable standards for legal gun ownership.
Much tougher than the regulations on automobiles.

[BigAppleBucky]

Originally Posted by JQPublic

There are already very resonable standards for legal gun ownership.
Much tougher than the regulations on automobiles.

Like registration, VINs or ID numbers, licensing for ownership? Annual license fees? Safety tests both for original license and then subsequent eye tests? How about required insurance for misuse?

[Scumpup]

Originally Posted by BigAppleBucky

Like registration, VINs or ID numbers, licensing for ownership? Annual license fees? Safety tests both for original license and then subsequent eye tests? How about required insurance for misuse?

You don't need a license to own a car. Licenses are for driving on public roads. Likewise, you don't need insurance on a vehicle unless you plan on driving it on public highways. I don't believe that there is insurance available for "misuse," at least not from my provider.

[JQPublic]

Originally Posted by BigAppleBucky

Like registration, VINs or ID numbers, licensing for ownership? Annual license fees? Safety tests both for original license and then subsequent eye tests? How about required insurance for misuse?

Wording is a little different but basically the same, you need to register your gun, take a safety course before you get your license. No annual fees or test I'll give you that. And no insurance for misuse, that's what the penal system is for.
Can you own and use a gun without following the rules of course you can. You can also own and operate a vehicle without registering it, having a license, taking any type of safety tests or insuring it.
And you'll probably get in more trouble not following the rules for owning a gun than you will for not following the rules for owning a vehicle.