Where is it referred to and cited, other than within its own text? The Declaration of Independence does not establish any system of government, and it has no force of law. Yes, it espouses a philosophy of self-government, and you might very well agree with it, but it does nothing to constrain or preserve rights in this country.
No, but that’s not what you are arguing. Although here you acknowledge the power of the individual states, you’ve otherwise been arguing about individual rights. Can you see how the Constitution only limited the federal government, and made no guarantees about the rights of individuals in situations where the states denied them?
Remember that it wasn’t until the 14th amendment that the courts said that the constitution guaranteed individuals certain liberties and due process even when states denied it. From the founders’ perspective, the constitution was no impediment on state power to define or deny rights.
That’s not what I said. Human rights exist. But I disagree with the idea that they somehow appear out of thin air and are universal truths.
Human rights are created by humans. And the fact that people in one country can have a different set of human rights than the people in another country demonstrates how they are connected with the government.
I’m still not sure I’m getting your point. Are you saying that the necessity of having a properly functioning militia is the justification for having a right to keep and bear arms?
The Constitution and its enforcement can not be divorced from its foundational principles. It is without dispute that the founders AND framers embraced the principle that all governmental power emanates from the people; the bedrock of the system they were framing is the principle of conferred powers and retained rights. If the people did not possess all power before the Constitution was established, and retain the interests not conferred, (inherent rights), the 9th and 10th Amendments are declarations standing alone in meaningless absurdity.
I have a bunch of quotes from SCOTUS that discuss the DoI and unalienable rights and how that informs their reasoning. I haven’t gone through them to discern if they are majority opinions rather than dissents or concurrences. I’ll post them up in another message if you want, with that caveat stated beforehand.
Of course it is. My entire argument, every post has been focused on the principle of conferred powers and retained rights.
Yes, that the federal Bill of Rights only applied to the federal government is a well settled concept. Barron v Baltimore set it in stone.
The Constitution is another subject though; it does establish limiting powers on the states. The Constitution’s “guarantee to every State in this Union a Republican Form of Government” denotes an implied power to enforce that promise. An example – interestingly on the point of the RKBA – is explained in Presser v Illinois:
[INDENT]“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”[/INDENT]
So, even though the 2ndA wasn’t applicable to state action, actually, even if the 2nd Amendment was not there, structurally an underlying principle of the federal Constitution binds the states from disarming their citizens.
Well, there are also state constitutions with their own bills of rights. Actually, my statement is especially true for state governments under their constitutions.
The principle of conferred powers and retained rights is much more evident in state constitutions. Actually it is an unavoidable conclusion as soon as one begins reading; declaring the rights of the citizen was primary, not an afterthought.
Most state constitutions have as Article I, their declarations of rights (I’m saying “most” because I haven’t read every last one). The rights of the people are set-out before any powers are enumerated. The intention is of course to demonstrate that the rights of the citizen pre-exist the powers of government and that the rights of the people are formally and expressly held-out / withheld from the powers being conferred.
For my state, the Pennsylvania constitution, Art I calls out (among others) the rights of:
[INDENT]§ 1, . . . enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, . . .
§ 2, All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.
§ 21, The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.
§ 25, To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
[/INDENT]
Not much wiggle room there . . .
I’ll focus on modern weapons of indiscriminate warfare, e.g., missiles, rockets / RPG’s, aerial bombs, NBC weapons. But, since you asked about what I feel the framer’s opinion on the right to own such weapons would be, I’ll not bring any modern laws or judicial decisions into my argument (which could address small munitions / ordinance / artillery that are “destructive devices” under NFA-34) . . .
I sound like a broken record but I begin the answer with the principles of conferred powers and retained rights. I look to the body of the Constitution to see if any powers have been surrendered by “We the People” and been granted to the federal government over a particular interest.
I see “We the People” granted the federal government the power to raise and support and provide for, and set the rules for the military forces to perform their war making duties. I also see the Constitution forbids states to keep troops or ships of war and by logical extension, the weapons of indiscriminate warfare. I also see that the most devastating weapon of the founding period (Man o’ War’s) were owned by private citizens (Privateer’s) but after the War, through the Constitution, power / control over those weapons was granted to Congress. Private citizens could not maintain or sail these ships without the permission of Congress, Art I, §8, cl. 11, by receiving a letter of marque and reprisal.
Taken those points together and recognizing and applying the doctrines of federal preemption and supremacy, my belief is that the same principle allowing government to place restrictions on citizens owning warships and the supreme power of the feds to provide for the armed forces, and forbidding states to keep troops and warships, can be applied to restrictions over private citizens owning weapons of modern open / indiscriminate warfare. Thus, I would argue that the people have surrendered all such rights and can not claim any rights to acquire, possess, maintain or use, weapons of indiscriminate warfare.
Note, none of this reasoning has anything to do with the 2nd Amendment.
What interests “We the People” have surrendered, we can not claim any right.
OTOH, what interests we have withheld power over and retained the right to exercise, government can not claim any authority . . . without any reference to, or reliance on, any particular Bill of Rights provision.
See, I doubt that. I think Scalia would tell Madison that the text is supreme, and we’re not about to change 200+ years of jurisprudence just because one author’s revisionist stance.
All conservative principles are situational. Originalism is no different.
I may have rushed to judgement about where this was headed.
I think I understand the position that at it’s core, the constitution is meant to protect “unalienable rights”. But what’s heard more often than not is that we live in a ‘nation of laws’ and under ‘rule of law’. Whether state or federal, these laws often serve to put restrictions on “unalienable rights”. Do either of you find these two concepts in opposition? If not, why not? If so, can they be reconciled, or have we mostly moved well past the founding fathers principles of individualist rights towards those of social justice, i.e. “a more just society”?
Except that the Constitution in toto was not at all meant to protect unalienable rights. Moreover, the rights enshrined in the Bill of Rights aren’t unalieanable; they are expressed as limitations on governmental powers, with some limitations being more explicit than others. The Bill of Rights sit within the broader framework of the Constitution itself. The people who wrote and influenced the drafting and final ratification were acutely aware that Constitutions could fail, which is why it seems highly unlikely that they would take an literally textual interpretation of the Constitution seriously.
The concept of “unalienable rights” requires the establishment of a government that respects these principles – that its powers emanate from the people being governed and that the people retain powers over themselves that they do not confer.
To say that government has an obligation to “protect” something that the people never parted with, that they never gave government any power over, nor placed any aspect of those interests in the care or control of government, represents a true incongruity. How can government assume to protect what it has no power or authority to even contemplate?
“Rights” in the parlance of the framers, were “exceptions of powers not granted”. This is why our rights are sometimes referred to as “negative liberties” . . . Our original, inherent rights do not require any government announcement or notation or any positive action or operation of government to exist, be recognized, realized or exercised; they only demand inaction of government to survive.
As opposed to being “protected” by government, our rights are “secured” by government inaction.
The “rule of law” means that the enactment and enforcement of the law has rules. The “rule of law” isn’t something that is impressed on the people, it is what the people impress on government, forcing it to operate within the strict confines established by the Constitution.
The power of government is strictly limited by enumerated powers and the exercise of those powers is confined only to perform the specific duties assigned to government and its specific offices (legislative, executive and judicial being the general categories). This immovable, unalterable, unyielding foundational principle of the Constitution creates a structural framework that restricts the powers of government; this is where the real protection of rights emanates from – government can only “do” what we say it can do:
[INDENT]"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation."
MARBURY v. MADISON, 5 U.S. 137 (1803)[/INDENT]
It should be noted with special attention that the Court says, “The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.”
This means, once the fundamental principles of the governmental model are agreed upon and the Constitution, founded on those principles is established, because the federal Constitution “is supreme” –the highest law of the land– and the government established by the Constitution “can seldom act” –its powers are strictly limited– those principles can not be retroactively altered, they are permanent. It also means that a court “interpreting” the Constitution so that foundational principles are violated or invalidated, is illegitimate, a usurpation.
***Not ***in opposition, because of the “RULE OF LAW”. No right is absolute in an ordered society. Even those most exemplary, most revered “unalienable rights” can be disabled for actual crimes committed after due process; people can have their liberty taken, they can have property confiscated, they can even be put to death, after due process.
Our rights are immunities from arbitrary and capricious government action – freedom from government operations that exceed conferred powers or do not follow established and agreed upon legal rules and processes (extra-constitutional / extra-judicial).
For gun ownership and use, of course there is a government interest in public safety, that’s why laws forbidding guns to criminals and the insane and fugitives and those dishonorably discharged from the military, pass constitutional muster . . . We as a society have decided that arms possession by those particular people is dangerous. We accept that rights restriction for dangerous people because we expect the application of rights disablement has rules and is a process that can be relied on wherever one is, whatever jurisdiction one finds themselves in, in the USA . . . Not arbitrary or capricious, applied with different standards or in a blanket fashion on the whole citizenry.
Yes they can be reconciled, as long as the government applies the law adhering to the aforementioned “rules of law”. The thought that rule-less, ever evolving group-identity driven, anti-individual rights UN-JUST “social justice” could ever supplant actual justice, is horrifying.
Some of the provisions do recognize unalienable rights and certainly original, inherent rights that the people possessed and exercised before the Constitution was ratified. Those provisions do not establish or declare any prohibition that wasn’t already a inviolate principle of the Constitution before December 15th, 1791. All those provisions “do” is redundantly tell the federal government it can not exercise powers it was never granted.
[INDENT]“I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? . . .”[/INDENT]
That the framers included a rigid process to amend the Constitution, to formally alter it and the ambit of federal powers, stands as a testament that they believed the Constitution must be applied as written. If they believed that the Constitution was a fluid, malleable evolving series of suggestions on how to operate the federal government, them including an amendment process was the ultimate troll . . .
Not a word about post 87, in agreement or disagreement?
So considering that along with the phrase about “well regulated militia”, shouldn’t the Federal government, as well as the states, have the right to regulate that militia – including, for instance, the right to require that all members of it take training in how to properly handle their weapons, and be removed from the militia if they can’t pass that training? and the right to keep track of who is in the militia and what weapons they possess? so that if the state and/or federal government needs to call upon that reserved military force those governments know who and how many that force is comprised of, what equipment is available, and that the members of the force are trained in using that equipment?
But they are not “secured” by government inaction; because it’s not only the government that endangers them.
All “inalienable” rights are also endangered, and in practice throughout human history frequently taken away, by non-governmental actors: individuals and, more recently, businesses including corporations. If we’re in practice going to have such rights – or any rights – at all, what will keep them available to us, if not government action?
Not any right, both entities possessed militia regulatory powers as set-out in Article I,§8, cl’s 15 & 16. The full and complete ambit of militia regulatory powers emanates from those clauses in the body of the Constitution and those clauses only.
The 2nd Amendment has never been examined or held to inform on any aspect of militia regulatory powers of the federal government or the states. When SCOTUS had militia issues come before them, the 2nd Amendment was ignored; they only examined clauses 15 & 16 and the laws enacted under the authority of those clauses e.g., the Militia Act of 1792.
That was precisely the conditions set out in the Militia Act of 1792. BUT, those regulations were only impressed upon those citizens “enrolled and notified” in the militia, not regular, private citizens who were not members of the militia. This is a long standing principle of law, that only the people expressly addressed in the law are considered to be bound by it, expressio unius est exclusio alterius.
Absolutely, but those were all conditions established in regulations issued under constitutional authority set-out in the body of the Constitution, not the 2nd Amendment. Regular reports were made of the entire organized militia with attention to the types of arms and their caliber. Enrolled members were required to bring an appropriate gun and a limited amount of ammunition and supplies for that gun. The militia company was to have on hand, enough bullets, balls, cartridges, powder, patches and flints to keep that militia company operating during extended service. The Militia Act of 1792 mandated that:
[INDENT]"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, . . . "[/INDENT]
If we had a militia law today, members would be required to muster with an operational AR-15 or AR-10, three 30 round magazines loaded with 90 NATO approved cartridges , either .223/5.56mm or .308/7.62mm. Of course the government would have ample supplies of correct ammo and spare parts and armorers familiar with the weapon platform.
To bad we don’t have that now; in 1903 Congress chose to kill the Militia Act and completely eliminate all citizen militia obligation . . . One could argue (and I certainly do) that with that action, Congress extinguished any legitimate interest Congress could be said to have under the Constitution, in any arms any citizen possesses. CHANGE MY MIND . . .
But the US Constitution establishes the rules for the federal government and only the federal government. The actions of rights enforcement by the federal government against non-federal government agents / actors is very narrow. Often the federal government, in particular the courts, deny jurisdiction because there is no federal issue and often, especially when the effect of the 14th Amendment was getting applied drip-by-drip, issues of rights infringements by state governments or private citizens were flatly refused standing in federal courts . . . The right to arms was only incorporated under the 14th in 2010; many claims of 2ndA rights infringement by states were thrown out of federal courts before any merits were briefed or heard.
The philosophy of unalienable rights precludes the argument that they exist between private citizens (say criminal / victim) or business and customer. Unalienable means that these natural rights which you possessed before entering society, are of such an intrinsic value to being human they can not be willingly surrendered to the care and control of society (government). You can not legitimately sell yourself into slavery or sell your life, that does not mean that you can not be vanquished or conquered and placed into slavery or even killed.
Unalienable rights only apply in a government / governed dynamic, when a government is being established to NOT surrender rights to. One can’t say that “unalienable rights” are being violated for people living under an autocratic dictatorship; the question of if those people ever surrendered, willingly, the limited powers that allow a government of their choosing to perform, can not be said to have ever been asked, let alone answered in the affirmative.
Of course, limitations demanded by those being governed to restrain the extra-legal arbitrary and capricious use of governmental power.
The government may at the time have decided to only impress those regulations on those citizens enrolled and notified in the militia.
However, I don’t see how you can simultaneously claim that the word “militia” undoubtedly applies to all citizens capable of bearing arms, and that it only applies to those who are enrolled and notified. Either the government had the regulatory power to impose all those regulations on “all citizens capable of bearing arms”, whether or not it chose to in 1792; or it didn’t – in which case, where are all the objections from 1792, when most of the founders were still around? – ; or the word “militia” doesn’t apply to all citizens capable of bearing arms, but only to those officially enrolled in a state or federal militia – in which case the 2nd doesn’t apply to individuals except as part of such a militia.
So people have no right not be be murdered or enslaved as long as this is done by a private actor?
That’s, I’ll just say, an interesting position.
But I’m pretty sure that’s a very large part of why most people agree to be governed in the first place: so they won’t be murdered or enslaved by anybody who happens along.
I kind of doubt that’s possible.
Poking holes in your argument is mostly for the purpose of dissuading anybody else from believing it.
I’m with you if it said “a well-regulated militia, being necessary to the security of a free State, the right of that militia to keep and bear Arms, shall not be infringed.” But for some reason, it doesn’t say “the right of that militia”; all of a sudden, it changes direction and starts talking about “the right of the people”.
They are subject to a $200 tax stamp and long wait, and that goes separate for every single projectile. Some states restrict them but the majority do not.
Actually, legally, there are at least three “militia”. . .
The 1) unorganized “general” militia, the “all citizens capable of bearing arms” . . . from which the 2) organized militia of the state is drawn and then trained and deployed according to regulations issued under the authority of the Art. I militia clauses, and the 3) “part” of the organized state militia which are called up into actual service of the nation and paid by the United States. Number 1 is not addressed in the body of the Constitution, only the 2nd Amendment; numbers 2 & 3 are addressed in the body of the Constitution and in the 5th Amendment (“when in actual service in time of War or public danger” the grand jury requirement is relieved because you are bound under the UCMJ).
And if you really want to nit-pick, (and who doesn’t) only the part of the militia “employed in the actual service of the nation” is in any shape or form, under any “governing” control of Congress . . . and the “President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. So, tell me what control does either Congress or the President really, legitimately have over the unorganized, not enrolled in any militia, arms keeping a bearing private citizen?
Stop trying to pound the round peg of the people’s right to arms into the square hole of the organized militia.
It didn’t.
Object to what? OK, let’s run with your absurd reading /interpretation . . .
The impressment of militia duty was only on "free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted).
So, is it your contention that . . .
“the Vice-President of the United States, the Officers, judicial and executives, of the government of the United States; the members of both houses of Congress, and their respective officers; all custom house officers, with the clerks; all post officers, and stage-drivers who are employed in the care and conveyance of the mail of the post office of the United States; all Ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states, shall be and are hereby exempted from militia duty, notwithstanding their being above the age of eighteen and under the age of forty-five years.”
. . . had no right to keep and bear arms and could have legally had some sort of arms deprivation placed on them because they were not members of the militia?
THAT strikes me as something they really would have objected to . . .
Correct.
You have no enforceable right to not be a victim of crime.
You have no right to be or “feel” safe.
No doubt a person killing you is a violation of law, but that isn’t because it is an enforceable right.
Take your objections up with John Locke and how the founders /framers interpreted his teatise.
Correct, an important reason why people enter into society is for power in numbers and using that collective force for defense from outside aggression. Also, establishing a criminal code to punish violations of the social order by those within that society according to agreed upon processes of justice (including due process).
Correct again.
Will you let me know, perhaps with changing the font color, when you feel you are poking holes in my argument?
An analogy would be is the first amendment had offered a similar preamble and said “Active churches, being necessary to the spiritual health of the community, the right of the people to be free in their religion, shall not be infringed.”
This would imply that the purpose of individuals having the right is in order to provide support to churches. And that would lead to the argument that if churches can derive sufficient support from other means, it’s not necessary to have an absolute right. For example, suppose you could get enough church members if half of the people in the community have freedom of religion? Or suppose some individual wants to carry out some religious practice that doesn’t lead to church membership? This interpretation would also support laws that made church membership mandatory; a person would be free to choose their religion but they wouldn’t have the right to choose no religion.
I’m assuming people can see how this analogy would apply to the second amendment. If you accept the militia clause as having legal weight, you could then argue that it’s fulfilled if a sufficient majority of the people have the right to own weapons even if all of them don’t. And you could argue that a weapon that doesn’t function in a military sense, like a handgun, doesn’t support the militia and isn’t covered by the right. And you could say that everyone is required to own a firearm and belong to a militia.
