“Well Regulated” in the context of the times in which it was written, did not mean the National Guard, since it wasn’t even around yet.
A clock was considered well regulated, for example, if it kept good time, oiled, didn’t break down. What they were referring to was “every able bodied male” and I suspect the Michigan Militia wasn’t exactly what you had in mind. (In other words, don’t go there.)
In any case, it seems fairly strange that every amendment that refers to “the people” has been construed as an individual right (1st Amendment, for example) but somehow, that’s not what they meant on the 2nd?
It’s always funny when people claim the constitution doesn’t say what it clearly says, not to mention what they meant.
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution.
A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it.
To oblige the great body of yeomanry, and of the other classes of citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss."
The Federalist, #29, Modern Library, New York
Obviously, “Well Regulated” didn’t mean 20,000 conflicting gun laws, merely being proficient at what they do. Yes, the goal was supervision, in the established units, no question. The young country needed an army. It’s an entirely different thing to claim that personally owned weapons were not envisioned, nor desired.
Not only that- How do you feel about the Draft? Service in the National Guard? Forming your own Militia to augment the state and federal forces? This is usually interesting. Certainly, if one claims that there is no individual right to keep and bear arms, they wholeheartedly support the Draft, correct? National Guard service one weekend a month?
Lots to answer. But first, let me make something clear: I’ve posted this topic because in the course of debate I’m entirely open to being persuaded by other people’s perspectives and arguments. If you disagree with me, don’t resort to entirely indulgent posts like the one posted above by 1kBR Kid. I really don’t care if I don’t convince you: but I’m willing to air the matter through intelligent debate, and even be convinced that the precepts of my belief are wrong. But, I’m just not interested in pro-gun histrionics or a wankfest. I’m a citizen of a country where an overwhelming majority of people supported a conservative government initiative to tax people 2% of their annual income to fund a programme whereby citizens voluntarily surrendered their guns to the goverment for destruction, and I’m just not going to be even vaguely persuaded by macho bullshit about how good guns are.
Having thought about it overnight, it seems to me that there are two issues here:
are human rights artificial constructs?
if not, is the right to protect your human rights a human right, or a legal right?
1. Human Rights as Artifical Constructs.
I agree, more or less, with what msmith537 says, here:
Goverments can make laws which contradict fundamental human rights. Human rights are something which overlap with laws, but can be different or even contrary to laws (and in this regard I’m thinking of unjust laws). I haven’t investigated this point, but it seems to me that this is the position taken by the International Court of Justice and otherwise in international law (specifically, the Nuremburg and Tokyo war trials). A law can contradict human rights.
So, just because something isn’t a law, does this mean that it isn’t a legal construct? I’m more minded to think that its a “cultural or societal construct”, but I can’t really see the difference between that and a “legal construct”, other than it is limited to a culture or society (and so is not universal, which supports the argument of cultural relativism).
Is the right to protect your human rights a human right in itself?
Intuitively, I don’t think so. By way of analogy, if you put your money in a safe, the safe doesn’t become the money. The safe may be valuable and useful, but it doesn’t become the object of value.
Joe_cool says:
Setting aside the issue of pacifist resistance to armed oppression, there are mechanisms should, at least in theory, enable you to resist oppression. You can win a court case against the government for trampling over your rights. You can protest in public against governmental actions which you deem repressive. The media can bring public attention to an oppressive act of government (or corporation, for that matter).
I have no idea what you are talking about, here. Where is that assumption evident? Also, you are taking an American-centric view. My government is not “by the people” etc.: I’m concentrating on universal human rights, not the peculiarities of a certain country’s constitution, other than in respect of the legal right to bear arms.
I admire your patriotism and enthusiasm, but you’re really sliding away from my point.
Jodi, as ever, has some thoughtful and incisive things to say:
This is the position of many countries, and who go further to add that the promotion of human rights globally is tantamount to “human rights imperialism”. Human rights imply that individualism, a key concept of Western culture, is paramount. The collectivism of Sinic cultures is quite different to individualism, and they view this as a basis to reject the concept of human rights, as, in the words of Japanese PM Kiichi Miyazawa after the Tiananmen massacre, “abstract notions”.
Hopefully I’ve answered that above. I can see the value in resistance, and can even see the moral obligation of resistance: but I don’t see it as a human right. This jibes with what Tedster has said:
…except that in so far as Western traditions follow Judeo–Christian beliefs, pacifist resistance seems to be more of a core precept (if not followed in practice).
I don’t know that belief in God has a connection to human rights, as a source of the rights. Individualism developed in the 14th and 15th centuries in Christendom, long after the rise of Christianity.
I actually think you are right in this. Choosing the balance of Western countries as a lodestone might be a flawed premise. The US might be displaying human rights beyond that of its peers.
Yes, I agree with you. The trouble is, I’m not sure on the source of “human rights” other than as a instinctive sense of the fundamental entitlements of a human being. Owning a gun seems to me to be something other than fundamental. Maybe its a cultural gap between Americans and non-American Westerners. I’ll give what you’ve said here some more thought and come back to you on it.
Danimal says
Entitlement rights in this context mean the right to expect a basic education, and the right to expect basic health care. Not so much of an American concept, perhaps.
**dalovindj **says:
…and then goes on to list a number of benefits of owning firearms, without addressing how that impacts upon the right to do so. I’m sure it would be to my benefit to own slaves: but I have no right to do this.
This has already taken me several hours to do, while I’ve been busy being distracted by work, and no doubt other people have posted in the interim. Weird Al Einstein makes some good points, too, which I’ll have to get back to in a few hours. For now, I’ll post what I’ve written and come back later.
The founding fathers posit that rights can only be granted by god, not man, and are inherent to all men, and can only be taken away by government. They crafted a document by which they hoped would restrain government from limiting those natural, god-given rights.
Where do I find the right to a firearm in the Universal Declaration of Human Rights again?
Which tells us… what, now? That misguided intentions, not guns, cause problems. So why is it bad for people to be allowed to bear arms?
Simply responding to the stupidity of your original point, old chum. Gandhi succeeded because he was facing a rational adversary. The necessity of having arms is based on the theory that, sooner or later, you may face an irrational adversary.
Or do you really think that some crook breaking into your house will be as “thoughtful” as England was? Do you really think Gandhi would have just sat in the dirt if someone was trying to rape his wife or kids?
Fundamental difference in perspective of human rights. I say they are universal, irrespective of what the local regime says. (The US government and the EU agree with me, which is why they have imposed sanctions on Myanmar. But, they don’t always agree with me, otherwise they’d impose sanctions on Saudi Arabia.)
The thing which troubles your view is that international law recognises rights which exist, even if denied by the law of an particular country.
This bothers me, though, because it still means they’re a legal construct.
Vorfod
Sorry you misunderstood the sarcasm point, as it wasn’t directed to you: look again and you’ll see I did repeat what you said.
Yes, they do, but so far, at least since getting clobbered in 1993, the West isn’t doing too well. There was a World Conference on Human Rights in Vienna and, led by China, Syria and Iran, the declaration approved by the assembly contained no endorsement of freedom of speech, expression, religion and the press, and so was a shadow of the Universal Declaration approved by the UN post WW2, when the West had more clout. As an aside, I laugh when Americans complain that the UN doesn’t serve their interests: this is because the West is now outnumbered, and the UN is now more representative than it was post WW2. It also highlights the diplomatic sophistication of non-Western countries. They took the issue seriously in 1993, and creamed the ill-prepared Western diplomats. This happened again this year, when the US was embarrassingly booted off the UNHRC. Other civilisations take the issue of human rights claims seriously enough to try and scuttle them, with repeated success.
My point was, why give them more ammunition? (as weird Al Einstein says, the pun was not intended)
Actually, not that much of a joke. My initial reaction is that I think that kind of has some merit.
I don’t think though that “security of person” equates to “the right to bear arms”. Doesn’t it mean the right to be free from molestation, but not to prevent the molestation? The “right to bear arms” seems to me to be a self-help remedy to maintain one’s rights, rather than a right per se. The right to bear arms contests the right to be treated fairly and justly: if that right is maintained, then there is no need to have a right to bear arms.
Its a fall back position. I might even agree that the right to resist is a supplementary right, and from that stems the right to bear arms: but is it a right as fundamental as, for example, freedom of speech?
It can be argued that way. However, in order to guarantee freedom from molestation without allowing those who are to enjoy that freedom access to a means to fight off would-be molesters, you would need to have created a near-utopia. Crime is a simple fact of life… and we have to live with it. We do this by (here’s one of my favorite phrases) preparing for the worst while hoping for the best.
Yeah, I know. I don’t deny it. Another way to think about it is “A person has the right to defend his rights”.
But there will always be those who will NOT treat people fairly and justly. Call me pessimistic if you must.
I couldn’t say… it depends on your worldview. Some people, for example, probably don’t consider Freedom Of Speech to be very important (I don’t know of any off-hand, however). I don’t consider the Right To Bear Arms any more or any less important… just different. It deals with a different aspect of human existence.
And you may want to familiarize yourself with two centuries of Federal 2nd Amendment case law, including what exactly constitutes “the militia” and who is in charge of it. It will save you considerable embarrassment.
No problem. That is, provided you acknowledge that they were also used to RESIST oppression.
Who gets the credit for building a house - the hammer, or the carpenter wielding it? Who carved the David statue - Michaelangelo, or his chisel? Who painted The Last Supper - was it Da Vinci or his paintbrush? Who was guilty for so many killings and eating the victims - Jeffrey Dahmer or his fork?
Pretty silly questions, right? And when somebody is stabbed brutally, it’s a crime committed by a violent or deranged person. But when sombody is shot to death, it’s a shooting, not a crime committed by a sick person. Why?
No, as has been ably pointed out already, well-regulated in that context does not mean under government control. The Army was already under government control, and the militia were civilian citizens fighting with their own weapons for defense of country.
On the contrary, if you could walk up to an armorer in 1776 and tell him you want your rifle regulated, do you think he would give you some rules telling you whether and where you could use it? No, he would sight it in, make sure the action is oiled and working properly, etc. “Well-Regulated” in the sense used in the Constitution means properly equipped.
A well-regulated militia is the whole of the people capable of bearing arms, properly equipped, willing and able to fight.
I invite you to read this article, which is testimony before the Senate by Professor Eugene Volokh of the UCLA school of law.
Some excerpts:
Additionally, Prof. Volokh had this to say on “Well-regulated”:
And
Can anybody seriously make the claim that this says only people employed by newspapers may publish their sentiments?
How about this one?
I really don’t see how this is so difficult to understand. Because of X, Right Y shall not be infringed. X does not Qualify Y, it explains it.
And since gun control advocates so enjoy saying how “Everybody knows” that the Supreme Court has consistently ruled that the 2nd Amendment is a collective right, and that the weight of law is behind that statement, I for one would like to see some citations now. I’m tired of citing case after case of Supreme Court decisions that simply get ignored by the opposition because they don’t support their point of view.
So I’m looking forward to what you guys can come up with. Show me Court decisions ruling that the 2nd Amendment refers to State Militia, and not individual persons.
I did not, and do not, disagree with this. I disagreed with your initial rhetorical questions “where does the government have the right to do X?” to the extent that it implied that the government has “rights,” which of course it does not.
JOE COOL – I accept your definitions. I knew “permission” was the wrong word to use, but I couldn’t think of another.
DAVE STEWART –
First, no one has limited the discussion of self-defense to the defense of human rights. Most generally, it is couched in terms of defending self, family, or property. Therefore the question is “is the right to defend yourself a human right?” If not, why not? Second, I think your analogy is a bad one. The right (or ability) to defend oneself (to act in a particular way) is clearly analogous to the right (or ability) to speak one’s mind (to act in a particular way. One right does not fit in the other; one is not intended to protect the other. Third, and with all due respect, you will find that having reached conclusions “intuitively” doesn’t generally cut much ice in Great Debates.
Not if the government itself is your oppressor, which was the chief concern of the American founding fathers.
The courts are a branch of the government, so if it is your oppressor, they will not avail you. You cannot protest in public if the government does not allow it. You cannot expect the media to bring public attention to oppression when they are owned by or themselves oppressed by the government.
I said “It is unclear why you would consider, say, the right to free expression, to be “inherently necessary to human dignity” but not the right to defend oneself,” to which you replied “Hopefully I’ve answered that above.” Well, no, actually, you haven’t, because you have not addressed the right to self-defense in the context of defense of the self, as opposed to defense of other human rights.
But, again, you have not articulated why not, except that it is something you “intuitively feel.”
Pacifism has not historically been considered a core precept of Christianity, and is not so considered today, unless you limit your definition of “Christianity” to pacifist sects such as the Quakers and the Mennonites. There is no reason I can think of in generalized Christian thought or history why the right to defend oneself could not be considered a God-given right, fully reconciliable with Christian beliefs.
The fact that one developed after the other does not mean that the later could not develop out of the earlier, or that the two are then the same thing. In any event, I am not trying to personally argue that rights are God-given (though I personally believe they are). I am merely pointing out that in the United States at least, the assumption that rights are inherent and may not be taken away was originally premisd on the idea that rights are given by God and cannot be taken away by Man. (“We hold these truths to be self evident: . . . That [all men] are endowed by their Creator with certain inalienable rights.”) In this regard, my only question is that, if you consider certain rights to be inherent (as you apparently do), then where do you think those inherent rights spring from? If instead you consider them an artificial construct, then you are obviously free to pick and choose those powers you will consider “rights” and those you will not.
But I am not talking specifically about the ability to own a gun; I am talking more generally about the right to defend oneself. But I think this nicely encapsulates my problem with your premise. If you consider rights to be inherent (for whatever reason, and from whatever source), then why do you view the right to defend yourself as “artificial” when the right to express yourself is not?
I would also comment, in passing, that the recognition of human rights by governments is always an artificial (and almost always a legal, or quasi-legal) construct. It seems to me self-evident that regardless of what we may say theoretically about the rights possessed by human kind, as a practical matter we only have human rights because our governments allow us to, and only to the extent they allow us to. You may argue that a Chinese person has a right to self-expression, and I will not argue with you in theory. But in the real world, he or she does not possess that right in any meaningful way because he or she does not possess the ability to exercise it.
If the local regime won’t recognize them, then they at least might as well not exist. Words are just words, without the mechanisms and will to enforce what they say–defining them as “human rights,” “laws,” or “handed down from (your favorite deity here)” doesn’t change that.
So it would seem that whether or not the people of a given country have universal human rights depends on the economic power (or military power–see China) the country has–weak ones will be sanctioned for not going along, and strong ones will occasionally cause hand-wringing. As a principle, this ain’t much to hang your hat on.
You seem to be of the opinion that international law is something other than what the major powers say it is, and further that what the major powers say it is has nothing to do with their own goals. Go back to your previous quote and answer this: do you honestly think the US and EU would enforce sanctions against another country to uphold the concept of rights which the US and EU didn’t themselves agree with?
You aren’t going to get away from this, because while my reply back on page one was a bit flip, it was true enough–the concept of what should be a “right” must come from somewhere. And since rights either operate against government or must be enforced by government–or be totally ineffective, in which case they don’t really exist–it follows that however you define them, such rights must ultimately be legal constructs.