Is the 2nd Amendment an anachronism?

Sorry, i meant to quote XT in my previous post:

Same goes here . . .

It is my position that any amendments that run counter to the fundamental principles of the original document’s establishment would be “unconstitutional”.

Can you support your position framed in the excerpts I provided from Marbury above?

Or at least answer my above question with some explanation:

    [INDENT]Well, let's set aside the 2nd Amendment for a moment and ask 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?[/INDENT]

From Marbury:

So if we pass an amendment banning guns, how can we not intend for it to have effect? How can part of the Constitution be ignored?

Well . . . .

[ul]
[li]"The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.[/li]
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.[/ul]

Principles are established first,
from which the Constitutional authority proceeds,
since federal constitutional authority is supreme, (no greater authority exists in the USA),
but is strictly limited to just what is enumerated,
those principles are considered permanent and unchangeable.

Even if the people wish to later confer a power, that power can not retroactively abrogate a fundamental principle . . . The structures empowered by the Constitution to alter the Constitution (Congress and state legislatures) can not use the mechanism of the amendment process to make the Constitution violate the principles it is founded upon. The only way to alter a founding principle the way you are proposing is to erect a new constitution that is based on your new principles. (Or not, LOL, I’m assuming that no permanent principles would be assumed under your new constitution)

So my argument is, because your Amendment would be counter to the fundamental principles of the Constitution and those principles are deemed permanent because of the structure of powers, that amendment would be void as if it were never written and no governmental agency (or citizen) would be required to respect it.

I think his point was you only need a statistic of one. No single ‘now dead person’ cares whether the statistics show that most robers are out to get a quick fix.

And in your interpretation, just what does the Supreme Court use for guidance in deciding which parts of the Constitution are constitutional? This all gets back to Founding Father fetishism- the Founders are infallible and eternal and nothing can be done that they haven’t already thought about and approved of. If getting the requisite votes in Congress and 3/4 of the states, who should have authority to say that a properly ratified amendment is null?

Clearly and unambiguously, yes. I don’t understand how this is even a question. If you change the law to say that X is legal, then it isn’t illegal to do X.

Again you speak from the assumption that the amendment in question has become / is part of the Constitution.

For this question, (RKBA) a simple and superficial inspection of the philosophical arguments the framers embraced on the armed citizenry would suffice. A proposed amendment that would seek to grant the authority to disarm the citizenry runs counter to Republican thought.

You are arguing for an authoritarian model rather than a liberty based one. Your position meshes with Plato and Bodin and Filmer; the armed citizenry aligns with Aristotle, Cicero, Locke and Sidney.

Speaking of the founding principles and rights theory, Jefferson said:

[ul]
"…with respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification.

This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion.

All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c."

Letter to Henry Lee, May 8, 1825
[/ul]

As does the Constitution. It is a recognized continuum of thought.

I note Jefferson’s defense of the charges of plagiarism; that he lifted from Locke in writing the DoI.

The arguments supporting and denigrating an armed citizenry go back a few thousand years . . . there is really nothing new in the basic argument that your side makes advocating a government monopoly of arms.

Jefferson mandated that Locke and Sidney’s works be required reading at the University of Virginia. He wrote:

[ul]
[li]"Resolved, that it is the opinion of this Board that as to the general principles of liberty and the rights of man, in nature and in society, the doctrines of Locke, in his “Essay concerning the true original extent and end of civil government,” and of Sidney in his “Discourses on government,” may be considered as those generally approved by our fellow citizens of this, and the United States, and that on the distinctive principles of the government of our State, and of that of the United States, the best guides are to be found in, 1. The Declaration of Independence, as the fundamental act of union of these States. 2. The book known by the title of “The Federalist,” being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the United States, on questions as to its genuine meaning. . . . "[/li]
University of Virginia Library,
Jefferson, Thomas, 1743-1826. Public Papers, “Report to the President and Directors of the Literary Fund, October 7, 1822”
[/ul]

I highly recommend Jefferson’s reading list. You might also read Bodin and Filmer, the framers dismissed them as instructional as they endorsed authoritarian rule and recommended government have a monopoly of arms.

80,000,000 gun owners and voters for a start who face having their rights stolen.

In 1788 Madison said the biggest standing army that could be amassed in the US would be outnumbered (“opposed” was the word he used) by armed citizens by a factor of 17-20 to 1.

If he counted heads today he would see he was right on the button . . . maybe a teeny bit low LOL.

Pretty much what Miller said. Sorry, it’s hard for me to cut and paste and reply to you directly Abatis, but I’ll see what I can do to answer your direct question tonight. However, if you look at the 18th Amendment you get an insight into how this process would work. Alcohol was legal to buy, sell and use before the 18th. 1 year (IIRC) after the signing of the 18th it was highly restricted (to extremely vertical applications and special dispensation), allowing state, local and federal agencies the ability to seize alcohol and arrest those attempting to buy, sell or use it contrary to those specified exceptions. After the 18th was struck down, then it was opened the way for state and local entities to decide whether they would be dry or wet in the future.

By striking down the 2nd and then creating a new Amendment expressly forbidding personal ownership of ‘arms’ (I’m sure there would be all sorts of special exemptions and exceptions) it would open the door in a similar fashion to state, local and federal agencies to seize and charge anyone breaking laws written on the basis of the new Amendment. It wouldn’t be un-Constitutional at all…it would be completely Constitutional. I also think it’s about as likely as Hugo Chávez successfully becoming the next President of the US, but if it DID happen it would be completely Constitutional, at least as far as my admittedly limited understanding of these things go.

-XT

Well, first I want to make sure you understand we are discussing the powers of the US government.

But, just a question for the heck of it . . . Would you care to explain what your definition is of a “legitimate government”?

The powers of the US government are defined in the Constitution. The means of changing the Constitution are also included in the Constitution. Change the Constitution by the constitutional method, and you change the powers of the US government.

There is nothing any more sacrosanct about the 2nd amendment than the 1st or any other. It may be true that trying to dispose of the 2nd amendment through revision would lead to a revolution. It may also be true that trying to dispose of the 1st amendment or the 5th would also lead to revolution. While this risk certainly affects the probability and such change being proposed or passed, it does not affect the process by which such a change would be made.

Are you saying these fundamentals cannot be changed because some rules somewhere (which I haven’t heard of and you haven’t cited) make the procedure impossible? Or are you saying that these fundamentals cannot be changed because they would inevitably result in a revolution?

Well certainly the people could, if they truly didn’t want a right anymore, could support an amendment to the Constitution removing protection for it. Ultimately no one can protect us from ourselves. Enough people truly believed that drinking was a barbaric anachronism that a progressive society should abolish that Prohibition gained enough support to have the Constitution amended. Constitutional amendments by design require an abiding supermajority to pass.

I agree, but Abatis does not, apparently. It seems there are some things representing “fundamental principles” on the constitution that are not subject to amendment. How this is somehow relates to things Jefferson and Madison wrote… somewhere. Wherever that is, it’s not contained within the text of the constitution.

If that were true, then the 13th amendment would be unconstitutional, since slavery was so much a fundamental principle of the original document that the slave trade was expressly protected in it.

[QUOTE=Lumpy]
Well certainly the people could, if they truly didn’t want a right anymore, could support an amendment to the Constitution removing protection for it. Ultimately no one can protect us from ourselves. Enough people truly believed that drinking was a barbaric anachronism that a progressive society should abolish that Prohibition gained enough support to have the Constitution amended. Constitutional amendments by design require an abiding supermajority to pass.
[/QUOTE]

Exactly…it’s built into the Constitution, after all. ANY aspect of the Constitution, including the Constitution itself can be modified or even set aside if that’s the will of the people. I think it’s highly unlikely that it will happen, as I believe that while a seeming large percentage of 'dopers might think that the 2nd is ‘an anachronism’ this does not represent more than a small percentage of the population, but it COULD happen, given the right set of circumstances.

I don’t see the benefit in attempting to argue differently, as it’s a mechanism that was built into the process from the start, and is (IMHO) one of the strengths of our system…it CAN be changed, even fundamentally, and the mechanisms for such change are right there to be used. If you have the political support to do so. I don’t really see that as being a debate.

-XT

I believe it comes down to something like this: the Constitution could be ammened such that freedom of speech, religion, assembly and so on are no longer rights. When some other lower governing body now makes them not legal, will you relinquish them? What is ethical and what is legal and how they intersect is an ongoing discussion. I consider my right to be armed to trump any parliamentary bullshit you produce. Legal, illegal, I consider it my right as a human being to possess the most effective means of self-defense. I have done so in defiance of the law in the past and will do again in the future if the situation warrants.

[QUOTE=Scumpup]
When some other lower governing body now makes them not legal, will you relinquish them?
[/QUOTE]

Again, I think Prohibition is a good guide to what would actually happen, in the (to me) highly unlikely event the 2nd was ever struck down and a new Amendment disarming the public put in it’s place. At a guess, most people would go along with it, but only so far as it didn’t inconvenience them greatly. They might turn in some weapons and ammo, but my guess is most wouldn’t unless compelled by force to do so. Gun ownership is to ingrained in US society and culture to have that be realistic (I don’t even think that speculation on this is anything but fantasy).

Certainly.

I’m sure that many bootleggers felt the same way during Prohibition, and it’s certainly your prerogative to feel anyway you want about it. But if this fantasy ever actually happens, then you’d have to accept the consequences of your actions, which might mean your imprisonment or even death. You and many others might think that it’s worth the price…I’d agree on ANY of the ‘rights’ in the BOR.

It’s why I’m not particularly worried about this change in tactics on the part of the anti-gun folks (as pointed out earlier, could simply be my own paranoia). This is a more honest fight than the one waged earlier in the last century and up to fairly recent history…that of simply trying to redefine and recast the Amendment to change the intent of the writers. At least with this ‘it’s an anachronism’ debate it’s out in the open. If We, The People ACTUALLY think it’s ‘an anachronism’ then there are mechanisms to strike down the current Amendment and remove personal possession of ‘arms’ as a protected right to free citizens of the nation. If We, The People ACTUALLY think that simply taking away that as a ‘right’ isn’t enough, and we need a new Amendment to prohibit firearms from it’s citizens then there are mechanisms for that as well.

I’m thinking that both are fantasy, because like I said, while seemingly a lot of 'dopers THINK that it’s an anachronism, the reality is that they don’t reflect the thinking of a large number of their fellow citizens, who disagree with that assertion. :stuck_out_tongue:

-XT

I understand the amendment process, my disagreement is not with the process itself but with that argument that the amendment process permits the negation of maxims of the Constitution’s establishment.

The 18th is an excellent example of what the amendment process does and how it can be properly used. The power to ban alcohol was not granted to government so an amendment was initiated to give that power to government.

No fundamental liberty interest was at issue, no state constitution proclaimed alcohol possession or use as a right of the citizen nor was possession or use ever represented to be a liberty interest in any foundational treatise.

The right to keep and bear arms OTOH, meets all those criteria.

A simple question for anyone that wishes to answer, how does the principle of inalienable rights mesh with what you are advocating?

I’m not arguing any such thing; I’m the one arguing the “equal rights” position as it relates to rights and the people claiming them. My position is that ALL of our original, fundamental, inherent, fully retained rights have been forever and unalterably excepted out of the powers granted to government. The government honoring those limits is what makes it legitimate and crossing those boundaries makes it illegitimate (as far as “why” the Constitution was established, to “secure the blessings of liberty to ourselves and our posterity”.

I will say that I consider inalienable rights to be of a higher order, simply by them being deemed “inalienable” and that serves, in and of itself, to defeat the position you guys are advocating. Which is why I asked the question in my previous post, "how does the principle of inalienable rights mesh with what you are advocating?"

I would appreciate an answer from each and every posted here who thinks I’m wrong.

Not the procedure, the outcome . . . The procedure is there and certainly can be completed; my argument is that the outcome would not be legitimate, would not be law and have no force.

I quoted a founder who listed some of them and why they are of such vital importance. That the philosophy behind the US Constitution is no longer taught in schools is why the USA is in such a sad situation. Voters that can’t identify the actions of government that have abandoned founding principles and embraced tenets espoused by those who promoted authoritarian models is why voters are so easily swayed by claims of nebulous “values” that change with the latest polling data or worse, promises of personal enrichment.

Revolution would be a secondary reason. If the unrest was precipitated by an action along the lines of the one we are discussing, I would see such a “revolution” to be an outcome of the entire system breaking down. The injuries to Liberty that the attempted enforcement of a disarmament decree would cause across the American way of life, would be unacceptable to all citizens.

These principles pre-date the framers, some of them by thousands of years.

The Constitution is nothing but a legal contract that compiles the principles the framers embraced across many governing concerns. The framers didn’t think of these concepts all on their own, they were learned men and they read and considered all the oppositional political treatises. For you to argue that the Constitution would permit Lockean principles be discarded and Bodin embraced and the citizenry be disarmed is just folly.

We, in our modern enlightened condition can debate for example, whether inherent rights exist, but that modern debate will not alter the fact that the US Constitution was established with the understanding that inherent rights do exist and no legitimate government can be empowered to violate them. If the government is at some later time empowered to violate them, that government is, from then on, illegitimate and subject to the people’s original right to rescind their consent to be governed, reclaim the powers they had conferred and oust the usurpers with violence if necessary (which is “why” the 2nd Amendment can’t be rescinded, the people’s right to rescind their consent to be governed is enforced by the right to keep and bear arms).

It is my position that the fundamental principles of equal rights and equal standing before government were what extinguished slavery in the USA. The institution of slavery could not be sustained under a governing system founded on those ideals.

Did the 13th Amendment rescind or alter a single letter of the Constitution?