The Constitution: Does its philosophy apply only to Americans?

[Age_Quod_Agis]

@BrainGlutton

:rolleyes: Very, very bad example, Age.

It was very, very intentional. There’s nothing ironic about the name “Michigan Militia.” And they fit the definition just fine.

@Demorian

And knock off that hijack about the militia …

So does the philsophy underlying the Constitution apply on this board? Demorian apparently votes “No.”

[BrainGlutton]

@Age Quod Agis

It was very, very intentional. There’s nothing ironic about the name “Michigan Militia.” And they fit the definition just fine.

But surely the people who enacted the Second Amendment cannot have had anything like that in mind.

And if they did, the best thing we can do is ignore their intentions and desecrate their graves.

[Age_Quod_Agis]

I don’t think the Michigan Militia is what the Framers had in mind when they wrote the 2nd Amendment. I also don’t think Klan rallies and virtual child pornography were what the Framers had in mind when they wrote the 1st Amendment. But what they did have in mind was important enough in both cases that they were willing to protect some of the crappy stuff to make sure we don’t sweep out any of the good stuff.

[Demorian]

@Age Quod Agis

I don’t think the Michigan Militia is what the Framers had in mind when they wrote the 2nd Amendment. I also don’t think Klan rallies and virtual child pornography were what the Framers had in mind when they wrote the 1st Amendment. But what they did have in mind was important enough in both cases that they were willing to protect some of the crappy stuff to make sure we don’t sweep out any of the good stuff.

Why has that changed post-9/11?

[Age_Quod_Agis]

It hasn’t.

[BrainGlutton]

@Age Quod Agis

But what they did have in mind was important enough in both cases that they were willing to protect some of the crappy stuff to make sure we don’t sweep out any of the good stuff.

But WRT the Second Amendment, there isn’t any “good stuff.” Not under 21st-Century (or even 20th-Century) conditions, anyway.

[Demorian]

@Age Quod Agis

It hasn’t.

Then WTF is the Patriot Act? Why the hell are we holding prisoners without charges?

[elucidator]

Oh, yeah? When you’re out in the woods and Bambi’s mom comes right for you, you’ll be glad to switch to full auto and empty a thirty round clip into her! Might want to lob a hankernade or two, just to be on the safe side.

[BrainGlutton]

@Demorian

Then WTF is the Patriot Act? Why the hell are we holding prisoners without charges?

Because they could get away with it under post-9/11 political conditions. Or, if you prefer, “Wizard did it.”

[Age_Quod_Agis]

@BrainGlutton

But WRT the Second Amendment, there isn’t any “good stuff.” Not under 21st-Century (or even 20th-Century) conditions, anyway.

Lots of people – in fact, probably most Americans – think there are many, many good and vital things about the 2nd Amendment. The Framers and the people that ratified the 2nd Amendment thought so, too.

You may disagree, but I dare say that you’re in the vast minority if you think there’s nothing good about the 2nd Amendment. And if I’m wrong, the answer isn’t to ignore the 2nd Amendment, it’s to gather those that agree with you and amend the Constitution.

@Demorian

Then WTF is the Patriot Act? Why the hell are we holding prisoners without charges?

Huh?

The Patriot Act is not the result of changes in our attitudes about the 1st and 2nd Amendments. We’re not holding enemy combatants because of our diminishing respect for free speech and the right to bear arms.

If you’re suggesting that the Patriot Act and Gitmo are the result of a diminishing willingness to put up with the crappy to make sure we get the good, you’re going to have to elaborate because I don’t see the connection. What’s the crappy? What’s the good? And when did we ever allow the crappy?

Moreover, there was no philosophy underlying the Constitution that we put up with the crappy to get the good. It was just in a few, defined areas – like free speech and the right to bear arms – that the benefits are so vital to the workings of our democracy that the we’ll put up with the crappy to get the good. In most other areas, we aren’t willing to put up with the crappy at all.

[BrainGlutton]

@Age Quod Agis

Lots of people – in fact, probably most Americans – think there are many, many good and vital things about the 2nd Amendment.

You could make a case that there are good and vital things about private ownership of weapons. Personally, I’m not committed to any particular gun-control agenda. But there is nothing good or vital about enshrining the right to bear arms in the Constitution, set above and beyond the reach of the legislative process. It should be an ordinary political issue, as it is in all other “free” countries. Then we could experiment and find out what works and what doesn’t. The idea that gun control threatens our “liberty” to do anything other than bear arms is preposterous. Certainly private gun ownership has nothing whatsoever to do with fighting or preventing government “tyranny.” Do you really think you could fight the U.S. Army with hunting rifles? Under Hussein’s rule, practically every family in Iraq was armed with AK-47s, but that never got in the way of the police or the tax collectors.

@Age Quod Agis

The Patriot Act is not the result of changes in our attitudes about the 1st and 2nd Amendments. We’re not holding enemy combatants because of our diminishing respect for free speech and the right to bear arms.

Of course not. But it does show a diminishing respect for the rights of due process of law, trial by jury and access to the courts, which are also in the Bill of Rights.

[Age_Quod_Agis]

@BrainGlutton

You could make a case that there are good and vital things about private ownership of weapons. Personally, I’m not committed to any particular gun-control agenda. But there is nothing good or vital about enshrining the right to bear arms in the Constitution, set above and beyond the reach of the legislative process. It should be an ordinary political issue, as it is in all other “free” countries. Then we could experiment and find out what works and what doesn’t. The idea that gun control threatens our “liberty” to do anything other than bear arms is preposterous. Certainly private gun ownership has nothing whatsoever to do with fighting or preventing government “tyranny.” Do you really think you could fight the U.S. Army with hunting rifles?

But the mere fact that citizen armies couldn’t defeat the US military isn’t the point. There are important issues related to autonomy from the government, self defense, self determination, tradition, the fact that a government would be much less likely to be tyrranical toward an armed populace, and a number of others.

And I understand that you feel that there is nothing inherent in private possession of arms that’s vital enough to place it in the Constitution, but many, many people strongly disagree with you. This includes many (if not most) of the Founding Fathers, who thought that the right to keep and bear arms was instrumental to the liberty guaranteed by the Constitution and Bill of Rights. For example, Richard Henry Lee and George Mason are most often credited with forming the compromise whereby the states would ratify the Constitution with the understanding that it would be followed shortly by a Bill of Rights. Richard Henry Lee said, “[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” George Mason reminded the delegates of their experience with the British, in which the monarch’s goal had been “to disarm the people; that … was the best and most effectual way to enslave them.” And none other than James Madison (in Federalist #46) said, “A government resting on a minority is an aristocracy, not a Republic, and could not be safe with a numerical and physical force against it, without a standing army, an enslaved press, and a disarmed populace.” (emphasis added). And Noah Webster said:

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in 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 band of regular troops that can be, on any pretense, raised in the United States.

So the purpose wasn’t for me, individually to be able to defeat the US Army if the government passed laws I didn’t like. It was to keep the government from passing tyrranical or unjust laws, which would piss off all the American people.

[Caveat: there’s much disagreement about the scope of the 2nd Amendment – whether it guarantees an individual right to bear arms, or a collective right belonging solely to the states. I believe minty green is an eloquent proponent of the latter position. If you’re interested, there are numerous threads on this topic.]

@BrainGlutton

Under Hussein’s rule, practically every family in Iraq was armed with AK-47s, but that never got in the way of the police or the tax collectors.

And under Hussein’s rule, Iraq had elections, too. Naturally, I still think that elections are important to maintaining our freedoms.

@BrainGlutton

Of course not. But it does show a diminishing respect for the rights of due process of law, trial by jury and access to the courts, which are also in the Bill of Rights.

I don’t think “diminishing” is accurate, since to my knowledge, we’ve never attempted to guarantee a right to due process of law, trial by jury, and access to the courts for illegal combatants. In fact, until the Geneva Conventions in (I believe) 1949, I’m unaware of any source for the argument that a foreign combatant had a right to any sort of trial. And even under the Geneva Conventions, there are only limited trials granted for certain, specific issues.

[Huerta88]

@BrainGlutton

The “insurrectionary theory” of the Second Amendment is historically, legally, and morally indefensible, Captain. See this thread: http://boards.straightdope.com/sdmb/showthread.php?t=201061

Hmm. The old thread you cite contains lots of assertions but few cites, so I won’t take your characterization of “legal indefensibility” of the “insurrectionary theory” as established unless you have something better to offer in support of it. Rather than renew that 18 month old debate, I’ll provide at least one scholarly cite that suggests that “keeping the government honest” was indeed one of the animating goals of the Second Amendment (for a fuller characterization of the other goals and the philosophical principles that the author thinks supported them contemporaneously, see the whole article, 74 Tex. L. Rev. 1125 (1996).):

Political.–The Whigs believed that the widespread ownership of arms would prevent domestic tyranny by sensitizing the rulers to the rights of the people. Most Federalists and all Anti-Federalists shared the Whig tradition’s suspicion of government and desire to prevent the concentration of power that they believed inevitably led to tyranny. They had justified the American Revolution by appealing to the natural rights of men and the idea that governments “derived their just Powers from the Consent of the Governed.”[44] Similarly, our Constitution is premised on the sovereignty of the individual and the idea that individuals yield some of their sovereignty to the government to promote their interests (not the interests of their rulers).[45]
The idea of individual sovereignty, when examined against the backdrop of the republican and libertarian principles of the Whigs, yields great insight into the political dimension of the relationship between armed citizens and their government. The Framers were familiar with Aristotle’s warning that “the commonwealth is theirs who hold the arms: the sword and sovereignty ever walk hand in hand together.”[46] Andrew Fletcher, (p.1134)an early Whig who was widely read in the colonies,[47] also warned that “he that is armed, is always master of the purse of him that is unarmed.”[48]
These axioms were embodied in the Second Amendment’s guarantee of an armed populace–a guarantee that was the ultimate check in the Constitution’s grand design of checks and balances, a guarantee that the people would remain free, sovereigns of themselves. These axioms indicate that an armed citizenry is absolutely necessary to ensure the subordination of military to civilian control, to keep the rulers sensitive to the rights of the people, and to maintain the people’s ability to resist tyrannical rulers. For indeed, democracy and civil rights cannot exist where the citizens are disarmed.[49]

Civil.–The widespread ownership of arms was also intended to preserve the natural right of self-defense. During the consideration of our Bill of Rights, the personal right to own arms for self-defense was much less discussed than were the political aspects of the right to bear arms. Such discussion was lacking not because the Framers did not believe in such a right, but because it was the least controversial aspect of the right to arms. Nevertheless, there is ample evidence of the widespread belief in the right to own arms for self-defense.
The English considered the right to self-defense to be the premier natural right upon which all other rights depended. The English Declaration of Rights of 1689 was widely understood to encompass such a right.[50] And although the Declaration only guaranteed Protestants the (p.1135)right to own arms and would have allowed the disarming of Catholics, even the most anti-Catholic members of Parliament considered it oppressive to do more than reduce their armament. A 1689 act, passed when there was still risk of King James, a papist, returning to the throne, allowed Catholics to retain all arms needed for self-defense.[51] The debate surrounding this measure evidenced the belief that the natural right of self-defense was inviolable. “The act’s zealous sponsor, who complained during the debate that ‘we are so mealy-mouthed and soft-handed to the Papists,’ nonetheless explained that Parliament should not seize arms ‘necessary [for the] defense of their houses.’”[52]
The view that the right to own arms for self-defense was the first right of nature was held on both sides of the Atlantic Ocean. James Burgh’s Political Disquisitions, which played a central role in the shaping of political thought in the colonies,[53] exhorted that “he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses …”[54] Given the uncontroversial nature of this sentiment, the natural right to own arms for personal self-defense was soon codified in the constitutions of several states. Meeting in 1776, the constitutional convention of Pennsylvania, presided over by Benjamin Franklin, framed a Declaration of Rights which stated “[t]hat the people have a right to bear arms for the defense of themselves, and the state.”[55] A year later, Vermont’s constitutional convention adopted verbatim the same provision.56
Other states adopted provisions that spoke of the “common defense.”[57] However, such language was not meant to abrogate the right to use arms for personal self-defense. The Parliament that enacted the 1689 English Declaration of Rights clearly saw such language not as a restriction, but as an amplification of the right.[58] The circumstances surrounding the adoption of the Massachusetts Constitution evidenced the same belief. The Massachusetts convention proposed the following language: “The people have a right to keep and bear arms for the common defence.”[59] Some objected to the use of such language as possibly restricting the right.[60] John Adams, the drafter of the provision, probably dismissed such a reading. When read in conjunction with Article I, which included among the unalienable rights “defending their lives and liberties; … and protecting property,”[61] the provision clearly protected the right to own arms for personal self-defense.[62] Further, because the right to keep and bear arms remained in “the people,” they would, of course, be able to use their arms for lawful purposes in addition to the common defense.[63]
The demands for a federal Bill of Rights expressed at many of the state ratifying conventions also envisioned a right to keep and bear arms for self-defense and other lawful purposes. The first call for the inclusion of a right to bear arms in the federal Constitution was advanced in a failed motion made during the Pennsylvania ratifying convention which would have demanded “[t]hat the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game.”[64] The Pennsylvania delegates did not secure enough votes to condition ratification upon such a call, but their report was widely circulated throughout the states and influenced the drafting of subsequent bills of rights.[65] Madison, when drafting the Bill of Rights in the First Congress, worked from a reprint of the state demands that included the (p.1137)Pennsylvania report.[66] Although the language of the Second Amendment does not speak explicitly of a personal right to self-defense, several factors indicate that this absence stems from Madison’s belief that its inclusion was commonly understood: The right to self-defense was the least controversial aspect of the right to arms,[67] and the right to self-defense was, at the time, universally believed to be man’s first natural right, inseparable from the people’s right to arms.[68] Thus, it is not surprising that in the process of paring down the list of demands to a reasonable number of amendments, Madison considered it unnecessary to explicitly mention self-defense in the text of the Second Amendment.
During the Senate’s debates about the proposed Bill of Rights, that body rejected a motion to insert the words “for the common defense” next to the words “to bear arms.”[69] We have no record of the debates because the Senate debates at this time were conducted in secret;[70] thus the reason for the rejection is unknown. However, there are two possible explanations. Either the Senate, like the Parliament of a century earlier, believed the language dangerously expanded the right, or they shared the concern of those in Massachusetts who had feared that such language could be read to restrict the right. The militia’s strong showing in the recent Revolution and the nearly universal regard for a citizen militia seem to indicate that the Senate was concerned with the latter. Regardless of the reason, the Senate intended to preserve the individual citizens’ natural right of self-defense that existed at common law and was imported from England.

N.B. that the “Civil” right of self-defense is potentially as relevant here as the “Political” role of the Amendment, because English common law of self-defense included the right to use force, up to and including deadly force, against an unlawful arrest, such that this “civil” self-defense right also had an important keep-government-off-our-backs component embedded in it.

[Polycarp]

Huerta, thank you for an extraordinarily clear and candid discussion on this – and on the Second Amendment, domicile of more preconceived, pre-directed arguments than one can shake a stick at, to boot!

Civil self-defense is a new aspect of this whole argument, at least to me, and I appreciate your clear cite and comments.

[BrainGlutton]

@Age Quod Agis

So the purpose wasn’t for me, individually to be able to defeat the US Army if the government passed laws I didn’t like. It was to keep the government from passing tyrranical or unjust laws, which would piss off all the American people.

If all the American people were pissed off at the government, it would make no practical difference whether we were armed or not. If elections were still being run freely and fairly, we would simply vote the offending administration out of office. If not – our guns would do us no more good in resisting the government than they helped the Iraqis resist Hussein’s tyranny. A well-organized government will always be better and more effectively armed than the people. You have a rifle? Great, the Army has rifles, grenades, flamethrowers, machine guns, artillery, tanks, attack helicopters, and better organization and training than any sillyass “militia.” Now shut up and pay your taxes.

@Age Quod Agis

I don’t think “diminishing” is accurate, since to my knowledge, we’ve never attempted to guarantee a right to due process of law, trial by jury, and access to the courts for illegal combatants.

But when in all our history before now has the government (or in this case the Administration alone, without any authorization from Congress) claimed the authority to imprison any class of people, even foreigners or alleged “illegal combatants,” indefinitely and without any kind of due process? Only example I can think of is Lincoln’s suspension of the right of habeas corpus during the Civil War, for which he cited authority in the original Constitution that habeas corpus could be suspended in the event of a “rebellion or insurrection” – and even then it was understood everybody would be set free, or at least allowed a day in court, once the war was over. We’re in a situation now where there really won’t be any way to tell when the “war” is over, will there? Nor can I see any Constitutional authority for the Admin’s policy, unless you read it into the president’s authority as military CIC (which can be surprisingly broad; it was Lincoln’s sole legal justification for the Emancipation Proclamation).

[BrainGlutton]

@Huerta88

N.B. that the “Civil” right of self-defense is potentially as relevant here as the “Political” role of the Amendment, because English common law of self-defense included the right to use force, up to and including deadly force, against an unlawful arrest, such that this “civil” self-defense right also had an important keep-government-off-our-backs component embedded in it.

Maybe, but I don’t think that’s true any more. That is, I don’t think, in the present state of the law in the U.S., you have any right to use force to resist an unlawful arrest, and you’re in some deep shit if you do; in such a situation you might be innocent of the crime of resisting arrest but guilty of the even more serious crime of battery (or worse) on a law enforcement officer. I think. I’ll check on that and get back to you.

[Steve_MB]

@BrainGlutton

But there is nothing good or vital about enshrining the right to bear arms in the Constitution, set above and beyond the reach of the legislative process.

The whole point of having a Constitution is to insulate basic rights from the tyranny of the majority. The Founders certainly considered self-defense a basic right (whether or not they took it so far as to endorse the use of the “fourth box”*).

(*Freedom is protected by four boxes: soap, ballot, jury, and ammo. Use in that order.)

[Steve_MB]

@BrainGlutton

You have a rifle? Great, the Army has rifles, grenades, flamethrowers, machine guns, artillery, tanks, attack helicopters, and better organization and training than any sillyass “militia.” Now shut up and pay your taxes.

You are ignoring a basic fact of war – you don’t have to destroy the enemy; you just have to inflict enough damage to convince the enemy that it just isn’t worth it. That’s the same mistake the US Government made in assuming (for example) that victory in Vietnam was inevitable.

[Polycarp]

@BrainGlutton

Maybe, but I don’t think that’s true any more. That is, I don’t think, in the present state of the law in the U.S., you have any right to use force to resist an unlawful arrest, and you’re in some deep shit if you do; in such a situation you might be innocent of the crime of resisting arrest but guilty of the even more serious crime of battery (or worse) on a law enforcement officer. I think. I’ll check on that and get back to you.

I’d be interested in seeing this explored in more detail, though I think we’re hijacking this thread in doing so. My impression is that resisting arrest and failure to comply…with a police officer presuppose a lawful arrest and “…with the lawful order of a police officer” respectively – that a policeman acting (a) beyond what he is entitled to do by law or (b) beyond what he has a reasonable belief that he is entitled to do by law, whether or not he is in fact so entitled, is himself committing a crime or tort against your person in attempting to detain you against your will, and you are in fact entitled to resist such an unlawful “arrest.”

[RickJay]

@Steve MB

You are ignoring a basic fact of war – you don’t have to destroy the enemy; you just have to inflict enough damage to convince the enemy that it just isn’t worth it. That’s the same mistake the US Government made in assuming (for example) that victory in Vietnam was inevitable.

First of all, I’m not sure Vietnam’s a good example; the North Vietnamese were pretty well armed, and after all the USA was a foreign nation, fighting one well organized enemy plus a large militia force, but trying to do so through a South Vietnamese government that was ineffective at best and comical at worst. To get the full effect you would have to transfer all the military prowess to South Vietnam
AND confer upon that government all the legitimacy and perceived authority of the United States government, a government that has maintained constitutional legitimacy for over two centuries, as opposed to the real South Vietnamese government, which was a joke.

This is way off topic now so I apologize for the hijack, but…

…What Brainglutton is pointing out is not that it’s necessarily the case that the better armed side will always win, but simply that the conditions extant in 2005 are wildly different from when the Second Amendment was enshrined.

Actually, this isn’t off topic, now that I think of it. What might have been a philosophically motivated Constitutional amendment has been essentially trumped by practical concerns. In 1789, the United States didn’t really HAVE an army in the sense we would understand it now, and even significant military powers maintained relatively small armies. The economics and practicalities of the day made it difficult to hire and maintain large professional armies. To continuously maintain and professional armed forces of over a million people, plus a large ready reserve, as the U.S. does today, would have been utterly inconceivable. Napoleon’s Grande Armee of 500,000 men was by far the largest army assembled until modern times, so far as I can recall, and it was an order of magnitude larger than even big armies. And when you got an army that big together your men started dying of disease anyway. The military threat that Jefferson et al. wanted to arm the populace against might have been better armed, but it was relatively small. The USA of the time could not have raised an army of more than twenty to fifty thousand men. An army of twenty to fifty thousand men, incapable of moving faster than a man can walk, would have trouble oppressing the people of the United States no matter what they were armed with; an army of over a million, however (I’m lumping all the services together here) is something entirely different.

What might have been a practical defense against tyranny in 1789 simply is not today.

I, too, am not particularly married to any side of the gun debate; if anything I’m always biased towards the libertarian viewpoint, and I am very skeptical that most gun control measures are of any value. But it does seem to me that there is a valid basis in suggesting that an Constitutional amendment that, literally interpreted, means everyone should be allowed to possess nuclear weapons, might be just a shade out of date.