Well, that would be because you are looking at the Amendment with an “Alice through the looking glass” worldview. (A worldview that many issues within the liberal orthodoxy is dependent on. ) You know, where up is down and down is up.
If you were looking at the Amendment with clarity, you would see that the “right of the people to keep and bear arms” existed prior to both the Constitution and the Second Amendment and independent of the formulation of any militias.
To view the Bill of Rights as a document that grants rights to the people is the same as “down is up”.
Rather than being a document that “grants” rights, each of the amendments that comprise the “Bill of Rights” is a stricture against the government from infringing on rights. This is summed up by IX and X.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
I would also get rid of 1. I mean, a great deal of unhappiness comes from people being in contact with people of differing ideas and religions. If there was one absolute correct point of view enforced by the government, things would be nicer. After all, people don’t need freedom.
Another vote for the Second Amendment. There seem to be widely divergent opinions on what it means, how about we just scrap it and draft a replacement more in keeping with modern society and technology?
Yeah, good idea. Just remove the preamble of the Amendment and leave it to read, “The right of the people to keep and bear arms shall not be infringed”.
A very simple yet interesting proposal, Razorsharp. I’d hate to turn this into a gun control debate, but if you could just humor me with a few answers:
Would you support private ownership of rocket-propelled grenade launchers?
Would you support private ownership of machine guns?
Since everybody in Iraq seems to have both items mentioned above, do you think the Iraqi citizens are safer or less safe in their daily lives than they would be if these items were not in the streets?
Again, we can debate gun control further in other threads that may arise, but I’m just curious how the gun-rights advocates would answer the above.
Actually, 9 may be the most important of all. Without it, the right to privacy that is somewhat implied in #4 would be much rather to read into the BoA, given that it isn’t actually mentioned. Remove #9, and Roe v. Wade is overturned, along with a good deal of the civil rights legislation and case law the nation has come to enjoy.
The tenth Amendment also has practical application. You don’t see the Supreme Court saying “this law violates the Tenth Amendment” because you almost never hear the Court refer to amendments by number. The SC Justices refer to the rights granted by the amendments in opinions rather than the amendments themselves. The Tenth is often cited alongside the commerce clause when courts decide whether the Federal Government is overreaching itself.
The only truly irrelevant Amendment is #2. Regardless of whether you are for against American citizens being armed to the teeth, the fact remains that private citizens are NEVER going to win a war against the US government. The “right” of private citizens to bear arms assumes that said citizens can significantly affect the outcome of an invasion or a war of succession, neither of which are still true. Besides, it is not now and has never been the Second Amendment which keeps American firearms legislation weak, its the size and power of the gun lobby. No pro-gun advocate is seriously going to suggest that the NRA will close up its PAC and go back to providing training and dispensing hunting tips if the Second Amendment is repealed…
dutchboy, I think you missed the point of some earlier posts. The second amendment is not meant to allow private citezens to win a war against the government of the United States of America. This interpretation of it flys in the face of other sections of the constitution which specifically prhibit makeing war on the US. The point is to allow the populace the means to defend themselves if it should become necessary.Some good points are made in the first 2 posts here.
I’m not sure at all what you mean by “it is not now and has never been the Second Amendment which keeps American firearms legislation weak, its the size and power of the gun lobby.” Are you suggesting that the gun lobby would have exactly the same amount of influence if the second ammendment were repealed? Can you give some information to back up that position? I’m not even sure there are papers of opinions from teh NRA which do NOT mention the second amendment. It seems to me that it is the cornerstone of all of their arguments.
??? Of course most (white) Americans were free to bear arms before the Bill of Rights – but that was because the colonial/state governments had seen no reason to ban their possession, and were not terribly effectual in any case. But when, before the Bill of Rights, was there any legal recognition of a right to bear arms? Was it in Blackstone, or what?
Brain, I’m not sure what your question is. The right to bear arms is simply an extension of the right to self defense. If you look through some of the state charters in the link I posted earlier you may find that it was a common “right”.
Are you suggesting that because it was not in the constitution before the Bill of Rights, and that it had not been legislatively passed into law, that it was not considered a right?
*by David T. Hardy, Partner in the Law Firm Sando & Hardy
Originally published as Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Cong., 2d Sess., The Right to Keep and Bear Arms, 45-67 (1982) *
No, it was because the colonial governments were founded on the concept of individual freedom, liberty and inalienable rights.
Evidently, you are of the group that adheres to the misguided concept of rights being dependent on the benevolence of government. Sorry, that view is not compatable with the foundations of American society. It is only necessary to those that wish to undermine the concept of individual freedom and liberty.
I repeat:
So, let me ask you, just what is it about law-abiding citizens owning firearms that you find so hard to tolerate?
Get this. Those who view “regulated”, as in “well regulated militia”, as liscense for the government to intervene and “regulate” the private ownership of firearms expect, with a straight-face, the populace to accept this:
First Amendment: The government is forbidden to make a law establishing on official religion or prohibiting freedom of speech.
Third Amendment: The government is forbidden to quarter soldiers in the homes of private citizens.
Fourth Amendment: The government is forbidden to conduct unreasonable searches and seizures.
Fifth Amendment: The government is forbidden to hold someone to answer for a capitol crime without indictment or compel one to be a witness against himself.
Sixth Amendment: The government is forbidden to refuse one accused of a crime from having a trial.
Seventh Amendment: The government is forbidden from refusing the accused of having a jury trial.
Eighth Amendment: The government is forbidden from imposing cruel and unusual punishment.
Ninth and Tenth Amendments: Reserve powers to the states or to the people.
Second Amendment: The government is permitted to restrict the right to keep and bear arms.
Not exactly. Anglo-American common law doesn’t work that way. A “right” can also be based in custom, in general acceptance for a long time – but only if that custom/right has been at some point recognized by a court of law – ideally, an appellate court that publishes its opinions.
In our system, judges get to make law – for most of the Middle Ages, statutory Acts of Parliament and royal decrees were extremely rare, and judge-made case law was pretty much all there was. Well into the 18th century, there was a widespread assumption that the judges were not “making” law at all but only discovering it – that is, the law was like the laws of mathematics, somewhere that was simply out there waiting to be unearthed by a process of rational analysis. But this point of view has long since been dropped, and it was in decline even before the time of the Constititutional Convention. It never made much sense anyway. English common law had always been made in the courts based on a variety of considerations: logical analysis about abstract justice was less important than custom, tradition, and what today we would call public policy considerations.
The point is, I am open to the possibility that, even before the Revolution, the right to bear arms might have been considered one of the traditional “rights of Englishmen,” just like the right to have one’s home treated as one’s private castle. But I was unaware that a customary right to bear arms had ever been so recognized. And that legal recognition was what I was asking about. Thank you for your cite to the report of the Senate Judiciary Committee; I’ll have to look into it.
However, all of the above has absolutely nothing to do with the concept of “natural rights.” The concept of “natural rights” has absolutely nothing to do with constitutional law. And in this thread we are discussing what parts of the Bill of Rights should be repealed. I take the position that the Second Amendment should be repealed – not because firearms possession should be banned, but because the right to own them is not important enough to merit constitutional protection. But both you and Razorsharp seem to be taking the rather confused position that the Second Amendment properly belongs in the Constitution because the right it protects is a pre-existing “natural” one. That is not true. The right to bear arms might have been recognized in common law, on one or both sides of the Atlantic, before the BoR was drafted, but it is not a “natural right” and it never was. At most it was a legal right, like the right of trial by jury.
Posted by Razorsharp:
Our legal and constitutional rights might not be “dependent on the benevolence of government,” Razorsharp, but neither do they have any kind of cosmic existence independent of the Constitution or of the legal traditions underlying it. I will say it again: You do not have any natural or God-given right to own a weapon. No more than you have any natural or God-given right to have your case tried by a jury.
Posted by Razorsharp:
A lot of things – impulse homicides that would never happen if there weren’t a gun in the house when tempers start flaring; accidental firearms deaths that would never happen if there weren’t a gun in the house; the obvious practical impossibility of restricting gun ownership to “law-abiding” citizens; and the entirely destructive and dysfunctional role that firearms play in our national cultural psychosis of “honor” and violence. But these are details – directly relevant to a discussion of an actual proposed gun-control policy, but only tangentially relevant to this discussion. My position is simply that we do not need the Second Amendment; it serves no purpose which is good or valuable in the modern age; it never did serve any good or valuable purpose, though people of the Eighteenth Century thought it did; and gun policy is a pressing, urgent, and very complicated matter which needs to be treated through the ordinary political policymaking process and should not be placed above and beyond that process by constitutional protection.
Except for that darned butcher knife that granny keeps in the kitchen drawer.
There are more accidental deaths due to drowning than shooting. Are you not equally concerned with the private ownership of backyard swimming pools? Of course not.
Due to the practical impossibility of restricting automobile ownership to the sober, would you advocate for the outlawing of private ownership of automobiles? Nah, I didn’t think so.
psychobabble
The Second Amendment explicitly mentions the “right of the people”. But courts “interpret” this as not really meaning what it plainly says. I mean, we can’t allow the people to have the right to protect themselves from criminals that the courts refuse to lock up. Nevermind the innocents that die at the hands of armed criminals.
In today’s society, we now have the crime of “home invasion”, where law-abiding citizens are at the mercy of armed criminal intruders, because “robed dictators” have ruled that it is unlawful for law-abiding citizens to arm themselves for their own protection against the criminal element. What kind of insanity is that? It’s that liberal insanity.
No, there most certainly are good and valuable needs for the private ownership of firearms and it is up to the individual’s discretion and is rightly protected by the Constitution.
BTW: You know what the only crime a gun is responsible for?
It is to make a previously law-abiding citizen a criminal, with the passage of a law that makes it illegal to possess a gun.
Razor, you’re doing a lot better than any other pro-gun type I’ve seen try and argue this case. At least, you were, except for the two lines above.
Granny’s butcher knife is for cutting steaks. The fact that it can be used to chop up a person is irrelevant, because it has a practical, non-violent purpose beyond murder. In any case, I’d much rather be confronted by someone with a butcher knife than a gun. The chances that I can outrun a knife-wielder are clearly better than the chances that I can outrun a bullet.
Again, the automobile, while dangerous, has a practical purpose beyond running people over. You can get around in a car; you can’t ride a gun. The handgun has no practical purpose beyond being pointed at someone and/or fired.
Your earlier argument that “because the other amendments are read to forbid the government from doing things, the Second must be also” doesn’t really hold water. The government may be forbidden from significantly infringing on the freedom of speech, but that doesn’t mean it can’t do it at all- clearly, yelling “fire” in a crowded theater is going to land you in court. Similarly, while the Second Amendment may permit citizens to bear arms, it is clearly implied that the government may enforce certain statutes limiting this.
In any case, the original point of the OP was “which Amendment should we drop?”
Even assuming that you are correct, and the founders firmly believed that citizens ought to be armed to the teeth, the term “firearms” never appears. Thus, anything that may be called a weapon- knives, guns, landmines, mortars, suitcases full of plastique, tanks, or even nukes, would be fair game. Given that nothing in the amendment suggests to you that the government can limit the ownership of arms, I have every right to first-strike capability if I can merely afford it…
Just so we are clear, I posted the link above as a response to your question about when the ownership of weapons was ever considered a legally protected right.
This paragraph confuses me, however. I posted a couple times, that the right ot posses weapons is simply an extension of the right to defend oneself. I assume that you agree that individuals have a right to self defense.
I’m not sure what you would consider a “natural right”. Are any of the constitutionally protected rights “natural rights” by your definition? A brief reading of the link above seems to indicate that the right of weapon ownership is in fact much older than any of the other rights codified in the Bill of Rights. But if previous legal and customary recognition of the right is not sufficient to make it a “natural right”, what would be?
I’m truly confused. At first I thought we were discussing “rights” as the founding fathers understood them, since that is what would have lead to the Bill of Rights. Then I thought we were discussing previous historical conceptions of “rights” since that is what would have lead to the founding fathers understanding. But now you are suggesting that this is insufficient also.
Perhaps a more abstract discussion is in order. As I said above, I take the right of self defense to be self evident. But what does such a right mean if the methods of self defense are not also a right? If I have the right to defend myself against an attacker, but not the right to use a weapon in such a defense, what value is my right to defense?
I would suggest that the right to own a weapon is a “natural right”.