using the second amendment as a legal defense

my last gun thread got hijacked into a debate on the meaning of the second amendment. for this one, let’s assume that the militia is one made up of civilian(s) and its purpose is to protect against a corrupt government that compromises the security of our free state and that the people whose right to keep and bear arms shall not be infringed are individuals. i believe this is the nra/gun control opponent/possibly founding fathers interpretation. if i’m wrong, please correct me before this goes much further. if you don’t agree with the nra’s interpretation and wish to debate it, please open a different thread.

my question is, under what circumstances does the second amendment protect my right to shoot a government official or agent? can i alone, as the individual with a right to bear arms, make this decision? do i need four or five other disgruntled people to back me up? in other words, if i go to washington and start shooting (not that i’m planning on it), can i claim immunity from prosecution under the second amendment if i can prove that i felt my rights or security had been threatened?

If you can prove that a government official had violated your rights and posed a threat to your life, you would be justified in shooting him. However, if a FBI agent (or whatever) cut you off while driving, you won’t get much leniency.

That being said, good luck proving that a government official had violated your rights… you’ll definitely need more than your word to go on.

i was thinking more along the lines of the founding fathers’ situation, in which they invoked a war through what the british probably considered treason. say i think a ban on fully automatic weapons violates my freedom and i decide to import and use them. or i believe the election was fraudulent and don’t abide by any laws bush signs. if the feds try to arrest me, does the second amendment protect my right to defend myself with guns?

I think that it’s more of a restriction on prior restraint. The government shouldn’t be able to impede your ability to rise up against the government, but once you do the government can punish you. During the Civil War, the federal government didn’t say “Well, gee, they’re just exercising their right to bear arms. I guess that’s okay then.”

many ‘old school’ southerners call the civil war ‘the war of northern aggression’. on some level, it does seem that the union violated it’s own premises by attacking the south for seceding. if necessary, let’s debate the legality of the union’s actions in a different thread (please). what about after the war - were confederate soldiers tried for treason? or brought up on murder charges? if so wouldn’t that violate their second amendment rights? i think the second amendment gives me the legal right to stage an armed revolt against the government, although i don’t think it implies that government officials can’t defend themselves. so if i survive the incident, am i immune to prosecution? or do i need more people backing me up? if the right to bear arms applies to individuals, then can an individual stage an armed revolt without fear of legal reprisal? any lawyers or judges out there?

When you win.

If you lose, you’re a traitor.

I don’t think a court ever gets to decide this one.

well, obviously. that’s the case in any country whether they have a second amendment or not. what’s the purpose of the explicit right then? was it to give people the false sense that they could actually defend themselves against the u.s. military? or is denying individuals the right to own b2 bombers and nuclear weapons a violation of their second amendment rights?

First off, zwaldd, there’s a thing called capitalization. Try it and see how much fun it can be.

To address your OP, there’s nothing in the second amendment or anything else that guarantees you the right to successfully rebel against government tyranny. If you’re successful, the Continental Congress and the Texans were, you get to retroactively excuse your actions as legitimate. If you’re unsuccessful, as the Confederates and the Apaches were, you get punished however the government victors wish.

What the second amendment guarantees is that the government cannot restrain your potential ability to revolt by barring you from owning weapons prior to an actual rebellion. It doesn’t guarantee you’ll win in the end; it just gives you a “fighting chance” as it were.

perhaps my premise was unclear. let me restate then - i don’t hold that the second amendment guarantees a successful rebellion. i’m saying that i believe it should protect you from criminal prosecution in the event that you’re unsuccessful.

so in answer to my previous question, you’re saying that after the war the confederate soldiers were in fact convicted of treason or murder? if so, i believe their second amendment rights were violated. don’t know about the apaches, or whether the second amendment applied to them.

so then you agree that individuals should be allowed to keep and bear arms that give them a fighting chance? do you feel that individuals have a fighting chance against the national military under current laws or would they need access to heavier weapons, like b2’s and nukes? my feeling is that without access to all current military technology, individuals do not have a fighting chance. if the second amendment is supposed to provide for this, then we are all being denied our second amendment rights.

(sorry about the lack of caps - i worked for several years on a case sensitive database and we used all lowercase to make searches easier. force of habit.)

There was this thing in the late 18th century called the Whiskey Rebellion. You can look up more about it, but basicly a bunch of frontiersman resorted to armed defiance of the federal government’s tax on alcohol. The army was sent in and the rebellion crushed. The government could in theory have hanged every man who participated for treason, but decided to be lenient.

Again after the Civil War, virtually all former Confederates were eventually pardoned because the authorities wanted the country to mend.

On the other hand, radicals in the 60s and 70s who committed crimes with a political motivation were mercilessly prosecuted to the fullest extent of the law. The federal government operates on the theory that as long as our government is representative (“write your congressman”), it’s legitimate and so no one has cause to rebel against it.

Zwaldd bursts into the Federal Building with an AK-74

Zwaldd: “I am liberating this building in the name of the Erisian Liberation Front!”

Zwaldd open fire, killing an FBI agent, three EPA clerts, an IRA accountant and a couple of Park Rangers.

**Zwaldd:**Ha ha! This is but the first step in my plan to liberate the American people from the evil G.O.V.M.N.T!!!

Zwaldd suddenly realizes that he’s out of ammo. Shrugging, he drops is rifle and steps outside to face the 300 federal, state and local police officers who are crouching there in full battle gear.

Zwaldd: Hi guys! I guess my rebellion wasn’t successful, so I have to surrender! Can I go home now?

hmmmm…where in the 2nd Amendment does it mention giving ANYONE, militia or no, the right to murder anyone else, government official or not?

I could be reading this wrong, but it certainly seems as if you are attempting to infer ANY rebellious act as being sanctioned under the 2nd Amendment, when in fact it can only be read as guaranteeing a right to own and possess firearms, not to use them indiscriminately.

Eddie is correct. zwald- you have come up with a rather silly attack on the 2nd Ad. No-one thinks it gives you any legal right or protection to USE arms- just keep them “in case”. And, if the "in case’ is: “in case of an armed insurrection by the people becoming nessesary to protect us from tyranny”- you either win such rebellion, then your act is de facto- legal. Or you lose, and the 2nd Ad is no defense.

To kill that many people with an ak clip you would have to be a good shot indeed:D

As far as the confederacy they were allowed to go home with their possessions(they coulden’t keep their rifles though). The union did all their damage during the war.

Also I think the whiskey rebellion was before the constution when Hamilton was trying to show the power of the federal goverment. Or maybe he was trying to show that the constution could sucessfully stop a rebellion. I forget:)

I read something once that [isort of* applies here. At the time I think it was attributed to one of the founders, but I really have no idea if that is where it really originated from. Anyway…Here’s the quote[sub]best as I can remember it anyway[/sub]
“The thing about the Second Amendment is that you don’t need it until they try to take it away.”
I’ve always seen it as putting self-defense from your government into the law. It works almost the same. If a guy breaks in to kill you, then you better subdue or kill him, or you are dead. No appeals process applicable.

I have a question.

What’s with the timing of this thread? I thought these kind of topics went out the window when Gore lost and Clinton didn’t try to hold on and become King for life?:slight_smile:

"Treason never prospers,
And what’s the reason?

If it prospers,
None dare call it treason."

With rights comes responsibility. you are rtesponsible for what you do with the arms your are bearing. and in using those arms you are killing (or at least wounding) someone - you probally won’t be charged with obstructing the proposed tax hike plan by taking out the bill’s sponser but probally will be charged w/ murder.

IMHO the right to bear arms is to be another check and bale
ce that should prevent a corupt gov’t and the gov’t should fear the people - not the other way around.

Also remember there is no Constutional right to police protection.

right where it says ‘a well regulated militia being necessary to the security of a free state’. it doesn’t say ‘target practice and hunting being necessary for the security of a free state’. it doesn’t say ‘well regulated rational discourse being necessary to the security of a free state’. the second amendment provides arms for the purpose of shooting people who threaten the security of the free state. my main question in this thread is - who gets to determine when this applies? one person? a small group? a large group?

i’m not attacking the 2nd amendment - i’m saying it provides an overlooked right. and it explicitly does give you the right to use arms. that’s why it says ‘keep and bear’. what do you think ‘bear’ means? hold them out in front of you and say ‘look i have arms?’

ok, so here’s an example where a large group exercised their second amendment rights and were treated fairly under the constitution (except for having their guns taken away). so does the second amendment only apply to large groups?.

why? did dubya say that individuals should be able to use the second amendment as a legal defense for gun violence against the government? i must’ve missed that.