Does the 2nd Amendment provide a right to self defence in one's home? (D.C. suit)

Great Debates
21

There is absoulutely no question that the second amendment guarantees citizens their right to own and carry guns for self defense, not only at home, but on the streets.

The second amendment specifically prohibits any gun law that would infringe on the right to bear arms, and since DC is no state, there is no legal justification for any gun law in Washington DC.

When the founding fathers wrote the constitution, and debated the second ammendment, they did mention, and all agreed, that guns “could” be also used for personal self defense(against attackers - white or indian), as a third, and minor, reason for why we have the right to bear arms.

Tom Jefferson, for a good example, commonly carried 2 flintlock pistols when he walked the streets of Washington DC. They are beautiful pistols, I have seen photographs of them.

“Arms in the hands of citizens [may] be used at individual discretion… in private self-defense…”
– John Adams, 2nd Pres. of the USA:
John Adams, A Defense of the Constitutions of the Government of the UAS, 471 1788
“Laws that forbid the carrying of arms… 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 cent. criminologist Cesare Beccaria, 1764

“A strong body makes the mind strong. …I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind…Let your gun therefore be the constant companion of your walks”
Thomas Jefferson
“I ask, Sir, what is the militia? It is the whole people, except for a few public officials.”
– George Mason, 3 Elliott, Debates at 425-426
“The right of self-defense is the first law of nature. In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited; liberty, if not already annihilated, is on the brink of destruction.”
– Justice George Tucker, Virginia Supreme Court, 1803

22

The Bill of Rights, including the Right to Bear Arms, as so noted in The Preamble to the Bill of Rights, are “declaratory and restrictive clauses” which means that the Bill of Rights, supercedes all other parts of the Consitution, and restricts all other parts of the Constitution if there is any overlaping or confusion in misinterpreting. Thus, the Bill of Rights, restricts all other powers of the government or the main body of the Constitution itself.
The Bill of Rights, are separate and unique from the other amendments which followed.

http://www.billofrights.org/

THE BILL OF RIGHTS
The First 10 Amendments to the
Constitution as Ratified by the States

december 15, 1791

PREAMBLE

“Congress OF THE United States
begun and held at the City of New York, on Wednesday
the Fourth of March, one thousand seven hundred and eighty nine.”

“The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further DECLARATORY AND RESTRICTIVE clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

“Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.”

23

The federal courts have never ruled on whether the 2nd Am. applies to anything other than firearms, but the states have had a couple opportunities. Here’s a good one:

“The arms referred to in this amendment are the arms used in defending the state and civil liberty and no pistols, bowie knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desperados, to the terror of the community and the unjury of the state.” State v. Workman, 14 S.E.137 (W. Va. 1891). There’s also a neat old Texas case (English v. State, 1872) that seems to take the position that field pieces, siege guns, and mortars are within the scope of the amendment. :eek:

A right of self-defense by no means establishes a right to the ownership of weapons, any more than the right to assemble establishes a right to charge admission.

I note alse that the courts have held the Second Amendment does not create a right to self-defense. Fields v. Harris, 675 F.2d 219, cert. denied (8th Cir. 1982); Masters v. State, 653 S.W.2d 944 (Tex. App.–Austin 1983), aff’d 685 S.W2d 654 (Tex. Crim. App. 1985), cert. denied. I can see no legal reason, then, why a right to self-defense would create a right to bear arms.

Query also whether “the right to defend one’s home” even exists. State laws on the use of force in defense of person and property vary widely, with some states being quite restrictive indeed. May I suggest that you file suit against some suitably restrictive state so we can find out whether that “right” exists and what its parameters are? Until that happens, or until somebody provides legal authority showing a right to defend one’s home exists, you’re just opining without any legal foundation.
Susanann, could I ask you to stop cluttering up the thread with your cut-n-paste spam? Thanks very much.

24

Yeah, minty hates it when people undermine his arguments with relevent quotations! :stuck_out_tongue: :wink: :smiley:

25

:smack: I was going to stay out of this thread.

Move along! Nothing to see here!

26

Wouldn’t your computer files come under the heading of “effects?”

Trinopus

27

Even better, Susanann, can I ask you to stop misquoting John Adams? Your redacted version above, which gives the impression of being about personal self-defense, is unambiguously about (GASP!) the militia in its full form:

As for ol’ pistol-packin’ Tommy J., dare I ask for a cite? The museum that displays his flintlocks says only that he carried them when “traveling,” not walking around D.C.

More on the complete absence of evidence that the founders gave a shit about firearms as protection against crime, including “18th cent. criminologist Cesare Beccaria,” may be found in this flame-fest Pit thread.

28

Thank you for asking.

But several people above commented and questioned whether the founding fathers ever considered this question, of whether the Second Amendment applied to personal self-defense, or whether the founding fathers ever considered such a notion of using guns for defense of self and home.

They did - and they said so.

I think it is important, responsive, and relevent to this topic to see exactly what the founding fathers themselves said in their own words in response to the question of this topic.

What Jefferson, Addams, and Mason specificaly said in direct answer to the very question of this topic, is not “spam”.

I think instead of taking up a lot of space “guessing” what the founding father may have thought, or intended, it will save a lot more space for everyone to see exactly what they thought and said.

If anyone cannot understand what I posted of Jefferson, Addams, and Mason said, there are hundreds of other quotes by the rest of the founding fathers that say the same thing about using guns for private self defense - they were all in agreement.

What any “later courts may say or try to misconstrue”, does not change the intent of the founding fathers, does not change exactly what they said at the time, and does not change the opinions of the actual guys that wrote the Constitution and who wrote the Bill of Rights.

Who better to explain, what greater authority, to exlain what they meant when they wrote the Second Amendment, than the actual guys that wrote it?

I can see why you dont want to know what the founding fathers themselves said about the Second Amendment and about guns.

How about hearing what Patrick Henry or George Washington thought about the Second Amendment? Is that better?

" The great object is that every man be armed. Everyone who is able may have a gun."
– Patrick Henry, in the Virginia Convention on the ratification of the Constitution. – Patrick Henry, 3 Elliot, Debates at 386.
"“Firearms stand next in importance to the constitution itself. They are the American people’s liberty teeth and the keystone under independence… The rifle and pistol are equally indispensable… The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that is good.”
– George Washington

29

I will let ol’ pistol-packin’ Tommy J himself answer you in:

The Letters of Thomas Jefferson,

To Peter Carr, Paris, August 19, 1785

The Avalon Project at Yale Law School
http://www.yale.edu/lawweb/avalon/jefflett/let31.htm
:

:DEAR PETER, – I received, by Mr. Mazzei, your letter of April the 20th. "…

"As to the species of exercise, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body, and stamp no character on the mind. Let your gun therefore be the constant companion of your walks. Never think of taking a book with you. The object of walking is to relax the mind. You should therefore not permit yourself even to think while you walk; but divert your attention by the objects surrounding you. Walking is the best possible exercise. Habituate yourself to walk very far. "

…"I would advise you to take your exercise in the afternoon: not because it is the best time for exercise, for certainly it is not; but because it is the best time to spare from your studies; and habit will soon reconcile it to health, and render it nearly as useful as if you gave to that the more precious hours of the day. A little walk of half an hour, in the morning, when you first rise, is advisable also. "…

"Your’s affectionately, "

Tom Jefferson

August 19, 1785

30

Aw… they’re so CUTE before they’ve had all the hope and idealisim smashed out of them by the relentlessly uncaring system.

Enjoy,
Steven

31

Yes, and how is it that this demonstrates your claim that T.J. “commonly carried 2 flintlock pistols when he walked the streets of Washington DC”? Inquiring minds want to know, though they also despair of ever receiving a straight answer from you.

32

[/hijack]

Everyone has a right to bear arms…
I’ve got two of em! :smiley:

[/hijack]
Feel free to beat me in your spare time.

33

I have always had the impression that the laws in D.C. were made by the Senate and House of the U.S., since they are not a state and have no state government. Is this true, or just one of those things that you think without any factual basis?

So, in your eyes, it’s ok to deny or disparage other rights retained by the people, such as the right to defend your home, based on their not being enumerated in the Constitution? Nice. :rolleyes:

34

“Laws that forbid the carrying of arms 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, “Commonplace Book” (1774-1776), quoting from “On Crimes and Punishment,” by criminologist Cesare Beccaria (1764)

Now lets get back to the topic:

" The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as INDIVIDUALS…*t establishes some rights of the INDIVIDUAL as UNALIENABLE and which consequently, NO majority has a right to deprive them of. "
—Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers,

35

The problem with minty green telling everyone what the Second Amendment means is that minty is reading it as if it was written in 20th or 21st century America, by lawyers for lawyers.

Only it wasn’t written by lawyers for lawyers. Many of those who participated in the writing of the Constitution and Bill of Rights were things other than lawyers, who wrote in a plain style of English for the people of their new country so as to get the Constitution ratified.

I don’t agree that it takes a lawyer to read and interpret those words. Those words weren’t written the way law is written now, in a manner that is designed to obscure the point from anyone who doesn’t have special training in how to read legalese. They were written in simple, clear English.

And in English, the independent clause can be described by a dependent clause, but it’s not defined by or reliant upon that dependent clause.

36

So, Susanann, is there even the slightest chance that you will provide any authority for your claim that Jefferson “commonly carried 2 flintlock pistols when he walked the streets of Washington DC”? Or will you just keep cutting and pasting quotes from gun enthusiast web sites?

lalalalalalalalalalalalalalalalaSusanannisnotlisteninglalalalala

37

Here’s the web site for the DC City Council and a page on how bills become laws in DC.

38

I again refer you back to what Tom Jefferson actually said in my earlier posts.

I, for one. take Jefferson for his word, and for what he said and wrote, so do many others. There is no mistaking what Jefferson said, or meant in his own words.

If you dont believe Jefferson, if you think he is a hypocrite who lies, or if you dont think that he owned guns, or that he carried guns, or that he took walks, or that he advised others to do the same, then that is your opinion. Many others may choose to believe Jefferson.

Furthermore, I am NOT!!! cutting and pasting from “gun enthusiast web sites”.

I am quoting from United States documents, Yale University, from the actual debates, papers, proceedings of the founding fathers, from the actual letters and books of Tomas Jefferson, and other American historical documents.

If you think that the actual words, papers, letters and books written by our founding fathers, or Yale University, are nothing but “gun enthusiest” documents, then you are destroying whatever misleading you are trying to do.

The founding fathers were clear on what they meant. Their letters and papers and documents that I am using are in all large libraries and universities, at the National Archives, etc. for all to see.

Nothing you say can change what those great men said.

39

I agree with you. What Jefferson said 225 years ago is not that difficult to understand, for “most people”, and his words are just as clear and relevent today in the year 2003, as they were when he wrote them 225 years ago. Just who amongst us cannot understand what Jefferson said or meant here?:

“Laws that forbid the carrying of arms 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, “Commonplace Book” (1774-1776), quoting from “On Crimes and Punishment,” by criminologist Cesare Beccaria (1764)

40

I would argue that the right to self defense is exactly the God given right that is preserved in the 2nd. The wording itself indicated that the right superceeded the amendment. The right to self defense would include the right to use an effective weapon.