The "insurrectionary theory" of the Second Amendment is nonsense

Great Debates
101

First, your primary problem is that you are reading the 2nd to discern exactly what the government is allowing the right to be and you are trying the dissect and massage the words of the Amendment to ‘discover’ a meaning that conports to your political stance . . .

Thing is, the right is a pre-existing right, no aspect of it was ever placed in the care and control of government that would allow*** you*** to believe that government gave us back (through the 2ndA) a limited, conditioned, qualified shell of something we never parted with!

SCOTUS has been boringly consistent in stating that the right to arms is not granted by (or given, or created by, or established by) the 2nd Amendment and the right is in no manner dependent upon the Constitution to exist:

[INDENT]it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . .”"

DC v Heller

[/INDENT]

Profoundly wrong. The Militia Act of 1792 mandated:

[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, except, that when called out on company days to exercise only, he may appear without a knapsack.”[/INDENT]

Bliss is a dead end. If you want to debate the various permutations of the collective right, as argued for to sustain 20th century gun laws, you will need to step into the time machine and set it for 1942.

102

There’s a lot of talk lately about states trying to nullify federal gun legislation- for example some states trying to claim that federal gun laws don’t apply to any gun manufactured in that state and not exported from it. While nullification is a dead horse, I wonder if the Second Amendment would apply. Could a state decide that it wants its citizens to have unfettered access to guns and ammunition, and claim that federal gun laws infringe on that? Even if you subscribe to the collective theory of the Second Amendment, if the Second doesn’t mean that the federal government can’t forbid citizens to possess guns over a state’s desire to see them armed, then what meaning would it have left?

103

IMO the purpose of the laws isn’t so much to create a particular legal barrier for that state but to have federal action brought against the laws and force the federal government to argue its position in the Circuits leading to possible disagreement between circuits and guaranteeing SCOTUS granting Certiorari and having the commerce clause power grab really examined . . .

The thing to remember is that no power was ever granted to the feds to have any interest whatsoever in the personal arms of the private citizen. ALL gun control is written under the commerce clause (but defended citing Congressional authority to regulate the militia :smack: ) . . .

All the 2nd Amendment “does” is forbid the federal government to exercise powers it was never granted. Whether those usurped powers impact the individual citizen or the autonomy of the states is immaterial . . . it is all illegitimate and unconstitutional.

That’s just another one of the irreconcilable dilemmas that those on the anti-liberty side are forced into.

All of the collective theories force a conflict with Art I, § 8 militia powers and when one sees that the courts (including SCOTUS) have decided conflicts between federal / state militia powers without ever examining or referring to the 2nd Amendment, it is clear that the 2nd has NOTHING to do with militia powers.

The collective right people can not escape the effect of their theory that renders the 2nd into complete nullity; it can’t be a “militia right” and it has been proven to not be a state right through federal preemption.

104

I’m still trying to figure out what a collective right is supposed to mean. Sounds simply like a government power, in which case its inclusion in the bill of rights is meaningless.

105

I didn’t mean to revive a zombie. Someone linked to it in another thread. And I’m pretty sure that the constitution is more than a set of guiding principles. heck, even the bill of rights is more than a set of guiding principles.

I don’t see why we can’t have both a state right AND an individual right. The individual right under heller might be limited to what an individual would reasonably need for effective self defense. But if the federal government tried to impose those same limitations on all the states, there might be a separate state right that would arise.

106

Obviously some precepts were intended to followed in the sense of statutory law but even in those cases the word is almost always sufficiently broad as to allow a great deal of room for interpretation. Hence the dictionary definition of what a constitution is. Perhaps you might like to avail yourself of a dictionary now and again.

107

It is actually statutory law, not general principles, in the same sense that the health care law is an actual law, but much is left up to the interpretation of the executive branch.

Is the existence of Congress a general principle, or is it law? How about the four-year term of the President?

108

Yeah, what’s the point of that anyway? I might have been in the “unorganized militia” during that age range, but I never got a summons to report to a camp and drill with weapons or anything. I never got any government communication about the matter at all.

109

I’m sorry to be rude, but didn’t I say that “Obviously some precepts were intended to followed in the sense of statutory law . . . ?”

My point was that the document as a whole was meant to provide general guidance, a structure and general precepts for correct governance. Everyone knows or at least SHOULD know that this is the purpose of a constitution. If you don’t then look it up. If you don’t agree with the dictionary definition then whom do you think people are going to take more seriously, you or the keepers of our language?

110

That depends on what dictionary you use.

Merriam-Webster:

the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it

Secondly, what the courts say the Constitution is trumps the dictionary. The idea that the Constitution is the supreme law of the land is the most established and set in stone precedent there is.

Now some constitutions may be less than law, but the US Constitution, as defined by almost all sources, defines it as the supreme law of the United States.

111

Of course it’s the supreme law. Duh. You’ve obviously missed the point but thanks for playing.

112

That’s fine. Just so long as we’re in agreement that it’s binding law, I’m happy.

113

Well, seeing that Congress extinguished state militia powers by nationalizing the State Guards in 1903, you would need to be over 128 years old to have ever been liable to perform militia duty.

The enactment of the Dick Act is one more nail in the coffin for the “state’s right” theory.

If the 2nd Amendment was in fact intended only as “a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power”*, it is inexplicable that the 2nd Amendment’s protections were not claimed by a single state to repel this actual encroachment by the federal power.

*US v. Tot, 131 F.2d 261 (3rd Cir. 1942)

114

It’s binding as interpreted by the Supreme Court and as you must know, they do on occasion change their minds. So once again, it depends on what you mean by “binding.”

Constitutions are meant to provide flexible guidance not inflexible rules. THAT is the difference. That is why every definition emphasizes the word “principles.”

You have a constitutional right to privacy but that is nowhere in the constitution. It was a right created by the Supreme Court based on principles expressed in the constitution. THAT is constitutional law in action. THAT is how a constitution is supposed to work.

115

And in that, it works no different from statutory law. The Constitution is no less binding than statutory law, it just requires more interpretation due to vagueness in some areas. Where the Constitution is clear, it is the law, period, no interpretation necessary. The privacy right comes from the 9th amendment, of if you prefer, is a natural consequence of the 4th amendment.

As for flexibility, liberals and conservatives alike view the Constitution as inflexible. That’s why we have precedent. Once an interpretation is decided upon, that interpretation is binding law and overturning of that precedent is rare and a huge deal when it happens.

The only way to make the Constitution actually flexible is to get rid of judicial review. As long as there is judicial review, the Constitution is every bit as inflexible as statutory law, at least when that law is specific. As I pointed out, the health care law functions more as your view of a constitution, because the executive branch has been allowed the power to basically interpret it however it wants. The health care law is flexible because any administration can make changes to its basic functions without judicial review in most cases. Once the basic outlines of the law were ruled on, it became whatever the executive branch says it is.

116

You really have no idea what you’re talking about do you? I’d cite examples of precedent being overturned but I can see that would be pointless. And it’s not that rare an event, but regardless of what you consider ‘rare,’ it still happens - pretty much every term with the present court - and that mere fact is sufficient to make my point.

If you can’t see the difference between the function and application of a constitution versus an ordinary statute, then there is no point even attempting to try to educate you. Apparently you’re one of those people who thinks that the constitution is some sort of inviolate document like sacred scripture. Both you and they completely miss the point and are in a tiny minority. The fact that some of those reactionaries happen to be on the court does nothing to change that.

And from whence you’re getting this absurd notion that all people, left and right think the constitution is inflexible is utterly beyond me. That is pure unadulterated bullshit.

Finally as to the genesis of the right to privacy, saying it is implied by various passages and amendments is precisely the point I was making. The fact that you don’t see that while basically parroting my own argument back to me is just comical.

117

The present court has overturned no precedents. Of course precedents are occasionally overturned, and it’s a pretty big deal.

I don’t believe it’s scripture at all. I believe it’s law. It is law. It is law that trumps statutes.

All laws must conform to the Constitution, as interpreted by the Supreme Court. That is not flexibility. Once a decision is made, it ties the government’s hands, either forever, or for a very long time. This is the opposite of flexibility.

I think we’re in agreement, actually, you just don’t like to use the term “law” to describe the Constitution. But I assure you, it is regarded as law, going back through 200 years of jurisprudence.

Next you’ll tell me that the states aren’t sovereign.

118

What I don’t like is people pretending to know about things which they clearly don’t. And I never said it’s not law so don’t try to put your words OR your dick in my mouth, m’kay? At least not unless you take me to dinner first.

The present court has in fact overturned precedent. I guess you don’t remember Citizens United vs. FEC from 2010 huh? That overturned precendent that had stood for over 100 years and the Supreme Court tossed it out to the shock of almost everyone in legal academia. So get your facts straight, assuming you’re possessed of any actual facts, which seems doubtful.

And your line about hands being tied ‘for a very long time’ is nothing short of childish. As if passage of time is actually a consideration. Did that bit of wisdom come with the law license you found in your box of Cracker Jacks?

119

You’re citing a political line as a fact. the President cried foul and used that line on the flimsy reasoning that Congress for 100 years had regulated money in politics with the court’s permission, and now the court had overturned a campaign finance measure. There are two big problems with that reasoning though:

  1. Buckley v. Valeo was the first decision to overturn aspects of campaign finance law, not Citizens United.

  2. SCOTUS letting a law stand in one case does not imply in any way that they will let a much more far-reaching law stand. Every new pushing of the envelope by Congress requires judicial review. And there’s no disputing that McCain-Feingold went further than any law ever had by attempting to regulate independent expenditures. THAT aspect of the law was the only part that was overturned. Since there was no precedent for regulating independent expenditures, no precedent was overturned.

Well, so far my record of predicting how the court will rule is much better than the Constitutional law professor in the White House.

120

The point is that it overturned a long established precedent contrary to your claim that the present court hadn’t done that, so just admit you were wrong - or is that hoping for too much?

The fact of the matter is that you don’t have the slightest conception of what is involved in matters of legal construction of either statutory or constitutional law. You have made that very clear. And I don’t believe for a moment your self-proclaimed accuracy as to predicting what the court will hold.

But even if I did, it would be irrelevant. Even a monkey throwing darts has a chance of beating the experts so if that’s what you’re comparing yourself to, I’d personally try to shoot a little higher.