I think VIII is debateable because it’s language seems vague. Who decides what “excessive” is? And unless “cruel and unusual” was used in the late 18th century as a technical legal term, that seems vague too.
I think the bail thing is totally disregarded. I’ve seen no actual limits on bail. Judges will often assign amounts that only Bill Gates could come up with.
As for cruel and unusual punishment, that has been ruled on pretty reasonably. I think we can all agree that this outlaws physical torture or deprivation.
Brain,
The “insurrection theory” as you put it, mis characterizes the point of the ammendment. Of course it was never the intention that people would shoot at police and then claim protection under the second amendmant. It was also never argued that people would rebel against the federal government on anything like a regular basis. However, it was also felt that some form of protection against a tyrany needed to be codified in the constitution. I think that another choice is possible besides
Large standing army and no guns owned by citizens
and
Every household controls an ICBM
Perhaps the relevant section of the Virginia Declaration of Rights Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1776.
Of course, this is not exactly what the second ammendment of the US Constitution says, but I think you can see some more of the intent.
There is some other cool stuff on this issue in the National Archives.
You are only partially right.
The second ammendment did not "give " americans the right to keep and bear arms, it only “protected” our rights to do so.
Eliminating any of the American unalienable rights endowed by our Creator, is just asking for trouble. Doing so, would not just be “politics”, it could lead to civil unrest and violence.
Just what do ya think they meant for the second ammendment to be protection against tyranny of our governemnt?
“The power of the sword is in the hands of Congress? My friends and countrymen, it is not so; for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The Militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the Militia? They are not ourselves as politicians and lawmakers. They are those who have elected us into our positions and entrusted us with the power of preserving and carrying out their wishes. Congress has no power to disarm the Militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. The unlimited power of the sword is not in the hands of either the Federal or State governments, but, where I trust in God it will ever remain, in the hands of the people.”
– Tench Cox’s Letter to James Madison, during Adoption of the Bill of Rights in United States Congress 1779
Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States.
– Noah Webster
I like III. I don’t want any soldiers in my house.
I would get rid of II. It’s basically archaic and serves no good purpose. It’s actually even dangerous. There is no reason that any civilian needs to own an assault rifle. There isn’t even any reason anyone needs to hunt. I’m going to get flamed for this but if I had to dump an amendment, the second is pretty much worthless.
Posted by Pervert:
Yes, and I notice two things about it:
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This passage from the Virginia Declaration of Rights is entirely about the military organization of the state and has nothing to do with private ownership of firearms. Its purposes could be met by storing publicly-owned weapons in public armories for those occasions when the militia is mustered.
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The thinking behind it is entirely wrong. We have had a large standing army in the U.S. at least since the Teddy Roosevelt administration; it has always been effectively and completely subordinated to the civil power; it has been used against segments of the American people only on a very few occasions – e.g., the L.A. riots, or the dispersal of the Bonus Army; and the fact that throughout that period every state had its own semi-professional “militia,” and that some private citizens were always armed, made no difference. The state militias have never been used against the army, not since the Civil War, and it is very hard to identify any circumstances where the militias even arguably should have been used against the army. And the presence of firearms among the civilian population has not even made the army’s job significantly more difficult, ever. The drafters of the Virginia Declaration of Rights were completely, thoroughly, fundamentally wrong. Yes, the military power should always be subordinated to the civil power, but maintaining a mass-based “militia” has nothing whatsoever to do with that. And standing armies are not “dangerous to liberty,” at least not in a society with this one’s political culture and traditions.
Posted by Susanann:
This is horseshit, Susanann. It doesn’t even rate being called bullshit. You do not have any natural or God-given right to own a weapon. Prove to me that you have.
Furthermore, the Constitution is not there merely to protect preexisting “natural rights.” Do you have a natural right to be tried by jury if accused of a crime? The idea is nonsensical. Right of trial by jury is a feature of one particular legal and political tradition, that of Anglo-American common law, which is no more “natural” than continental civil law or any other system. It might be a better system, but all the others are just as natural and just as artificial. I don’t see how any philosopher could prove you have a “natural right” to have your case tried by a jury. It’s just something the English invented. The Framers (or, rather, those other national leaders, who proposed adding the Bill of Rights) wrote it into the Constitution because it seemed to produce justice, most of the time, and it provided the justice system with an extra correction mechanism, more or less insulated from political pressure. Your right to bear arms is a right of that kind, it is not a natural “unalienable right” like life and liberty. I’m sure both Jefferson and Hamilton would have agreed on this point.
The phrase “endowed by their Creator with certain unalienable rights” is from the Declaration of Independence, which was written eleven years before the Constitutional Convention, has absolutely no bearing on any point of American constitutional law, and cannot be cited in court in support of any constitutional legal theory. The Declaration and the Constitution are different documents with very different purposes. In 1776, the Continental Congress was embarking on a radical course: rebellion against a generally recognized and duly constituted authority, the British Crown. They could justify this only by appealing to a “higher law” of “Nature and Nature’s God.” But in 1787, the delegates of the Constitutional Convention (not identical with the earlier Continental Congress although some men were members of both) were drafting a body of positive law to create a completely new government. And the Bill of Rights was not added until 1791. It was likewise a body of positive law, a legal-political instrument which expressly protects certain specific enumerated “rights,” while remaining silent on certain other matters which might or might not be “natural rights” in an ethical sense. So, when you speak of any “right” under the Constitution, that is not a pre-existing natural right which the Constitution merely recognizes; it is a legal right which, in a legal sense, you can claim only because the Constitution guarantees it.
Some Federalists even objected to adding a Bill of Rights to the Constitution, on the grounds that a definitive enumeration of the individual’s ethical rights is impossible, and a definitive enumeration of legal or civil rights that the government can’t touch implies that the government does have the authority to invade any right not so protected. They didn’t win out. I’m not sure, but I think the Ninth Amendment – “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” – was added to allay these concerns. So far as I know, the Ninth Amendment has never been dispositive in any important constitutional case – probably because the Federalists were worrying about nothing; the government has never claimed, in court, that the people have only those rights listed in the Constitution and no others. How could it? Our legal system recognizes innumerable legal rights of persons which are not mentioned in the Constitution. The difference is, only those rights which are so enumerated are insulated from being abolished or changed by the ordinary political process.
Another vote here for the 3rd Amendment.
No, you missed the “composed of the body of the people”. And you seem to have misunderstood the “well regulated” part. Taken together, these mean that Mason believed that the populace as a whole should be an effective military force.
But mostly , you seem to have misunderstood the “thinking behind it”. The purpose of arming the populace (and some of the founding fathers thought that the populace should be better armed than any federal army) was not to make war on any legitimate government. The fear was that granting powers to a federal body might lead to unconstitutional usurpation of those powers or the invention of new powers by people claiming to be the legitimate government. IOW they feard that some group might usurp the power of the government. (Imagine a bloody coup if you will). The idea is that in the event of such a coup the populace could rise up and DEFEND THE CONSTITUTION. You seem to be laboring under the misconception that the second ammendment is a “suicide pact”. That it allows the populace to attack the government. But a more acurate description of its purpose might be to allow the populace to defend the government if the mechanisms of the state are been turned against itself.
And yes.
This is because we have never had the sort of coup that would make that necessary.
Look at the discussion in this thread about the 3rd amendmant. It seems silly now because no government would seriously think about boarding soldiers in private homes.
Similarly the second seems unecessary now because we have an immensely sophistocated standing army (far beyond anyting that could be put in the field by the populace) and this army has never been used to tyranize the populace. But this argument seeks to completely ignore the thoughts at the time.
I notice you like to posit that the Declaration of Independance “has absolutely no bearing on any point of American constitutional law”. However, when we are discussing the thoughts of the founding fathers and how they would have interpreted various parts of the constitution, it does have a place. I think you would be hard pressed to find a cite where one of the FFs said anything like “Well, we beleived these truths to be self evident. But that was when we wanted a new governemnt. Now that we have one, they aren’t as true anymore.”
Let me try to characterize it this way. I don’t think the FFs ever envisioned that the Democrats should have the right to take up arms and overthrough Bush’s presidency because they did not like the way the election was counted. I think they would have envisioned a large number of Ney Yorkers, say, who form an army, take over the capital, and forcibly take over the government.
The point was not to prevent this illegitimate government from disarming the people. Such a government would not be stopped by a “Bill of Rights”. The point was to prevent the previous legitimate government from disarming the populace. This is where the “necessary to the security of the free state” clause comes from.
BTW, the “god given right” part stems from our right to self defense. The second ammendment simply codifies this right to self defense to include defence against tyrany. It is not difficult. And it certainly not “bullshit”.
I think I’ll leave the argument over natural rights in general to another thread. Suffice it to say that I believe you have it exactly opposite, Brain. Look carefully at 9 ant 10 again and then claim that the constitution “remain[s] silent on certain other matters which might or might not be “natural rights” in an ethical sense”
On another note, I realize I am fueling this hijack. I have only done so because I thought it was pretty closely related to the OP. IF you want me to stop I will.
Yes, this is true. Howwever, the point is that the thrid amendment is not completely irrelevant; it is conceivable that it might restrict the government.
JonThe Hasher
Back then, money was backed by gold, so there wasn’t really inflation (the price of gold fluctuated, it only went down so far).
In fact, this came up in a course I’m taking right now, and you’re right. The idea of a Bill of Rights was an Anti-Federalist one, the Federalists objected as you said and that was the concession.
I see where you’re coming from, but I suppose it’s a case of “the exception proves the rule.”
Abolish none of them. It is through this "bill of rights’ that we Muslims will be victoriuos. A nation that believes in everything stands for nothing and cannot survie. We Muslims live by the Koran.
Abolish none of them. It is through this "bill of rights’ that we Muslims will be victoriuos. A nation that believes in everything stands for nothing and cannot survvie. We Muslims live by the Koran.
I’d love to rebut that, but it doesn’t make any sense. 
Really, if I can be a jerk for a minute, living by the Qu’ran seems to be doing a lot of harm to a lot of people. Give me most of the Amendments above any day. 
Posted by pervert:
It’s not a hijack at all, pervert. The thinking behind the Second Amendment is entirely relevant to the thread topic.
Thanks, Brain. I’m still unsure about some things around here.
I thought of another possibility earlier. During the now infamous florida election scandal, there was a very funny skit circulating the internet based on a fictional call between Gore, Bush, and Clinton. In it, Clinton solved the problem by simply staying in office for “an illegal and totally unprecedented 3rd term”. It is very funny if you have never heard it.
But what occured to me was what if Clinton had actually refused to leave the white house? He retained the football, kept his own staff in all the government etc. If we assume that he ignores any Supreme court orders to leave, or congressional resolutions for that matter. Assuming further that the army did not rise up as a single group and oust him, what exactly would we do? If some units of the army even took orders from him?
I realize this is somewhat outlandish. But I really think that is the kind of thing that the FFs had in mind in addition to the possibility of foriegn invaders. They wanted the populace to be able to defend the constitution when it could not defend itself.
This is also the sort of thinking which leads people to say things like “The second ammendment is the foundation of all of the other rights in the constitution.”
I would scratch the Second Amendment. Look again at what it says:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
It sounds to me like the people are to be free to keep and bear arms only for the purpose of having a well-regulated militia. I think that amendment is poorly worded or, at best, intentionally ambiguous. I don’t think they could have foreseen a country of 300,000,000 armed and unregulated citizens acting as a giant militia.
I live in the South and I know that my great-uncle was in what was called “the home guard” during the Civil War. Could that have been the same as the state militia?
Also, pardon the quick hijack, but can you recommend a good book on The House of Burgesses from its founding?
See, I agree that the language in II is somewhat archaic. But, Zoe all you have to do is remember that it does not include the word “only” (as in a well regulated militia may not be the only reason), and well regulated meant well trained, not subject to government regulations.
And no, they could not have forseen a mega country of 300,000,000 armed people. But they had several instances in mind of countries where all of the weapons were held by the king and his boys. This ammendment was specifically meant to prevent this.
How about this for another idea. Let’s remove the second amendment. Then we can pass a law saying that only registered Republicans can own guns. Would that make you feel better? No? Why not?
Personally, I think it needs some reformulation. I’m not entirely sure how it should be changed, however, but it is very clear that we do not understand it now a days.
I would not single out any of the Bill of Rights for elimination. In the current political climate, if there were any attempts to eliminate any of these Amendments, we would be opening a Pandora’s Box.
Yes, I know this thread is hypothetical. Having said that, I would still not support the elimination of any of the Bill of Rights. Better that one or two appear historically obsolete and no apparent need for use today, than have a need appear tomorrow and it is no longer there.
In the interest of accuracy, I have to point out the minor flaw here:
The Consitution actually has 27 amendments, but only the first ten are known as the “Bill of Rights”. They were collectively proposed on Sept 25, 1789, as being a general tidying-up of issues left unresolved by the Constitution itself.
If I could suggest any amendment be scrapped, I’d vote for the 18th (although the 21st beat me to it), the 13th (slavery seems unlikely to return) or even the 15th, 19th, or 26th (these were necessary to extend the franchise to blacks, women and 18 year-olds, but losing them wouldn’t automatically disenfranchise these groups).
Limiting myself to the Bill of Rights (referred to by Roman numerals) specifically suggests that III is the least useful, but also the least important. Second-least-important would be X, since the 14th Amendment, first clause, had to be written specifically because state governments were passing abusive laws and it was time to remind them that the Constitution applied to all citizens.
Eliminating II would be nice if you could prove it would reduce violent crime, but the very act of abolishing it (or threatening to) invites armed rebellion. I could easily imagine Montana or Texas, for example, making this a borderline Civil War II issue.
None of the other amendments have proven themselves useless, so do you do the safe elimination (III), the slightly-less-safe elimination (X) or the gutsy society-changing move (II)? Well, how much energy do you have?