Probably from one of the sites such as this -
The preamble sets the stage for the Constitution (Archives.gov). It clearly communicates the intentions of the framers and the purpose of the document. The preamble is an introduction to the highest law of the land; it is not the law. It does not define government powers or individual rights.
Okay but I’m still not seeing what it is you feel the Second Amendment originally meant or what it currently means. What rights do you think the Second Amendment conveys?
I thought I understood the point of this exchange, but both of you later said things that muddied the waters.
First of all, I’m dubious of @Little_Nemo’s claim that people in 1791 didn’t associate guns with personal self-defense. But even if he’s correct, @eschereal is also correct that the Second Amendment doesn’t mention guns but “arms,” which would presumably include whatever weapon @Little_Nemo imagines was used for self-defense.
I feel this is correct. Guns in the eighteenth century were seen mainly as military weapons (or for hunting animals). The fact that you had to stand up, load a gun with powder and ball, and then fire off your single shot made a gun a very poor choice for a self-defense weapon. It was like a modern artillery piece; you could theoretically use it in a one-on-one fight but it would not be somebody’s first choice.
I stated what was used for personal defense; swords. If somebody had been walking down a street in 1791 Philadelphia carrying a rifle and a sword and a criminal had jumped out demanding their money, the immediate response would have been to drop the rifle and pull out the sword.
Right; and though we don’t think of swords in connection with the Second Amendment nowadays, I don’t see why it wouldn’t apply to swords just as well as to guns.
If I were a person from 1791, I don’t think this is the first kind of scenario I’d think of when I thought of self-defense. Fewer people lived in cities then. I think I’d be likely to think of someone living in a less urban area, having to defend himself against wild animals and hostile humans.
Well, I have seen people traipsing about the city with their carbine slung over their shoulder, because, look at me! If you tried that with a katana or a claymore, it would not be too surprising to see you arrested.
Right but this thread isn’t about the law. It is about where rights come from, philosophically. In that sense the preemble is perhaps MOST important
That doesn’t appear to be how people at the time saw it, though:
Exactly. And that’s why a common set of moral principles is useful for a society. It makes it easier to have a common set of moral conclusions.
The 2nd Amendment, at the time of its drafting, was really just about “well-regulated militias” more than anything else. The founders were worried about a standing army, and the abuses of such an army. So, they came up with the militia. The 2nd Amendment, at the time, was not about individual gun rights. It was about a collective responsibility of adult males within the states to be called up into the “well-regulated militia”.
It wasn’t really about overthrowing a government, so much as taking the place of a standing army.
In today’s world, the “well-regulated militia” is akin to the National Guard. Also, we have a powerful, standing army. So, I would argue that the 2nd Amendment as it was originally drafted is no longer needed. Our government has the responsibility to regulate guns, just like anything else.
In today’s political world, the meaning of the 2nd Amendment has evolved into an individual right, when it was no such thing during the days of the Founders.
While I disagree with parts of the first paragraph, that’s fine, we have entire legions of Constitutional Scholars (and the teeming millions without such qualifications) that argue all possible sides of the debate. In terms of the OP though, the last line is really, really interesting though.
Our original Poster has asked us to focus on the following -
I’ve made no bones that IMHO rights are created by / derived from society and social compact, rather than first causes, although moral, philosophical, deist, and culture inform said social compact. And @survinga has given us an excellent example of a possible interesting twist - how such ‘rights’ evolve above and beyond the (possible) initial intent.
In this case, if the 2nd Amendment did not intentionally protect private weapons ( in deference to the sidetrack on ‘arms’), we now have over 180 years of legal debate and interpretation (using the 1840 date from @Kimstu 's cite for a back of the hand reference) of argument, civil and criminal law that brings us to the point where the SCOTUS has repeatedly argued that the right to private weapon ownership does in fact exist.
This is, based on that interpretation, a good example of a derived right that doesn’t follow from any first cause or philosophical/moral framework - it is entirely social and secular in nature as it were.
It reminds me of a related ‘right’ though, which is also a predominant one in most of the 2nd Amendment arguments, the right to self-defense. Much early law was entirely theistic, and in the West, derived from primary sources such as the Ten Commandments (yes, I’m HUGELY simplifying, I recognize that, and even leaving out the translation issues!). The commandment traditionally written as “Thou shall not kill” has almost always been subject to countless spoken or unspoken amendments, most of which weren’t within the purview of the individual, but self-defense was/is.
Common law has evolved over centuries on this point, leading to the myriad interpretations in English Common law that largely informed early American common law and they almost always carve out exceptions for use of force in self-defense, admittedly with GARGANTUAN differences in such details as weapon, circumstances, reasonable force and duty to retreat.
I would argue though that most Western societies do find a right to self-defense as an inherent right, even if it is not normally spelled out in the social contracts, and may very well argue about all of the above points of debate. But we don’t have a Constitutional right or Amendment that spells it out, even if we have developed a (quite irritating and unhelpful) hodgepodge of local and state laws that determine how this right shall be interpreted.
Yes another right that has evolved from existing commonly held belief and only later enshrined in law, and widely accepted even without the additional protections afforded to other Constitutional rights.
But what’s the required standard here, that guns are always useful for self defence? Because that’s quite a high bar to clear for anything.
Let me be clear, I am very much pro gun control (heck, I’d probably agree that it would be a net benefit if they were banned outright).
But if you frame it as a “right to self defence” and that anything which is useful – at least some of the time – for self defence should be a legal right, then you’re hoist by your own petard and grandma can have an AK-47.
I’d say it’s more like you have a right to defend yourself with whatever means you have, but you don’t have a right to any own any means. I don’t care if you’re worried about tanks coming for you, you don’t get to own a rocket launcher. And you don’t get to own an AR-15 in case of the armies of Sauron descending on your home.
Right. I agree with the interpretation that it was more about the right to take up arms, to be enlisted. Not necessarily for every individual to own guns.
Disagree. Namely because the history is bad on this claim.
Several pre-U.S. Constitution States had well-regulated/ordered militia clauses in them.
Maryland
that a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.
New York
declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.
Virginia
That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State;
James Madison would have been intimately familiar with the Virginia clause–he was one of the authors of the Virginia Declaration of Rights.
Additionally, several states had “right to bear arms” clauses prior to the drafting of the U.S. Constitution:
Pennsylvania
That the people have a right to bear arms for the defence of themselves and the state;
North Carolina
That the people have a right to bear arms, for the defence of the State;
Vermont
That the people have a right to bear arms for the defence of the themselves and the State;
Massachusetts
The people have a right to keep and to bear arms for the common defence.
It seems fairly obvious lexically that Madison was actually combining “right to bear arms” and “well regulated militia” concepts in the 2nd Amendment. He also would have been well aware he could have drafted a clause like North Carolina did–that explicitly says the right to bear arms is for the defense of the state, a choice was made not to use that construction. The most obvious textual analysis would conclude this was because he wanted to leave it open ended, and the well ordered militia is also a separate clause which is almost copy and pasted from the Virginia Declaration of Rights–if he had meant nothing aside from the militia, why add to the original wording in the Virginia Declaration?
Additionally, the English Bill of Rights, with which all of the founding fathers were intimately familiar, has an explicit individual right to bear arms–this was a well understood thing in the English world by the time of the drafting of the constitution:
That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.
Those rights of “security, liberty, and property” you just mentioned are not societal rights, they are individual rights. As is the right to arms - it is an individual right, not a societal right. You are asking if owning or carrying a gun yourself safeguards your personal security, liberty, and property. The answer is yes it can, unless you are careless in operating or keeping the gun and injure someone unintentionally.
The only people whose personal security, liberty, and property would benefit from some particular individual having a gun are those who he chooses, and is able, to benefit by using or threatening use of the gun. This could be the individual’s family, or just his or herself, or nobody.
An individual who does not properly handle or store his gun runs the risk of causing unintentional injury or death.
To the question as asked: only in limited circumstances, such as military use, police use, hunting, and for self-defense in particularly lawless areas. I would think arming the populace at large also has some marginal benefits when it comes to deterring invasion and militia preparedness.
I do agree with Blackstone, but I think all the reasons why would exceed the scope of this thread. I gave some explanation of my personal understanding of the social compact in my Pit thread.
I see where you’re going with this. You want to think about the net effect of an armed population - but that isn’t part of the equation. It has no bearing on my opinion of whether a right is justified whatsoever. The doctrine of individual rights aren’t utilitarian. I’m not a utilitarian. A utilitarian approach is, I think, fundamentally incompatible with the doctrine of individual rights, because those rights would always dissolve in favor of providing a benefit to society. In its most perfect form, a governing philosophy of utilitarianism leads to utopia.
By auxilliary, Blackstone means the rights are a backup plan. But if society is actually doing a good job, the utilitarian asks, is it worth it to pay for the backup plan?
Think about another of Blackstone’s auxilliary rights. Imagine a justice system so efficient and just that innocent individuals are rarely if ever convicted. Imagine also, a governor who plays extremely loose with the pardon power. It is easily shown that in this situation the governor’s pardon power is actually a net negative for society. But what would I care about that, if I were the rare innocent who has been unjustly convicted and sentenced?
I’m not accusing you of utopianism personally, just explaining why I don’t think it is relevant to argue that the abuse of a right by some individuals justifies taking away that right from any other individual. Blackstone wrote that the individual right to bear arms is for “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” It may be that in modern America, guns aren’t necessary for most people because society and its state sufficiently protect most people from the violence of oppression. But what does that matter to the individual who feels that they aren’t in fact protected from violence and oppression?
All of this, IMHO, has nothing whatsoever to do with the 2nd Amendment.
~Max
In philosophy, they often distinguish between deontology, rule based ethics, and utilitarianism, ethics based on costs and benefits of the consequences. Sometimes explained as “the greatest good for the greatest number”. In real life we always need both, though people will argue forever over which rules are necessary and which rules are just heuristics for a deeper cost/benefit issue.
For example, a naive reading of utilitarianism might cause one to conclude that human extinction (or maybe even complete planetary sterilization) would be the most optimal outcome to strive for, as it would end all current suffering and prevent all future suffering. So we generally need to add a “don’t kill people (outside of these well-defined circumstances)” rule to our culture and upbringing to ensure moral behavior.
I would look at rights as being a similar kind of distinction. Pure democracy might be analogous to utilitarianism (everyone gets a say, and what’s best for most is what’s best for all). Or you might think of utilitarianism more like data-driven progressive politics. The data shows drinking is bad and causes all sorts of social problems, so let’s ban it. Oh, the new data says that prohibition doesn’t work and causes organized violent crime. Repeal prohibition. That sort of thing.
So under the political analogy, rights are like deontology’s rules. No matter what the data says, no matter what the majority thinks, these are things that are non-negotiable. They are explicitly or implicitly off the table.
Just for example, if we all got together and voted, and an overwhelming majority approved a measure to legalize, by anyone at any time, the rape of a certain Joe Smith of Beavertail, Arkansas, that would still be wrong. No matter what the majority says, Joe’s body is his own, and can’t be legislated upon.
Even if it were in society’s best interests, as shown through hard data. Joe’s organs in certain circumstances would be quite valuable to many transplant candidates, but we still can’t take them without his explicit agreement. We would say Joe has a right not to be raped, and a right to control what happens to his organs. We might join those rights with others under the broader category of “right to bodily autonomy” or even “right to privacy” depending on your perspective.
Does that mean Joe can’t be raped? Of course not. But we’ve collectively decided that our society can’t be considered moral or good if we just allow people to get raped. So we put significant effort into deterring, investigating and punishing rapists. And this is on a society level, not just government. So if the government did enact a “rape Joe” law, or did pass a “communal kidneys” law, we would still say Joe has a right to his own body. The government infringing that right, far from showing it doesn’t exist, actually proves that the right does exist. After all, you can’t infringe something that doesn’t exist. So rights are separate from government protection or infringement (or the government’s complete ignorance).
Of course that gives us nothing we can use to objectively determine which things are definitely rights and which definitely aren’t. Unfortunately there’s no easy way to settle arguments about rights. They’re always in flux. But I do think there’s a trend, at least over the past 400 years, towards increasing rights. That’s a big reason we write them down so often, because we like to think that once certain rights are settled, they’re settled, and we can move on to new questions, and new rights. It’s not a perfect ratchet, because rights are sometimes revoked, but there’s still a general recognizable trend.
To this day, we still have to occasionally fight for the complete right to vote, for instance. But it wasn’t that long ago people had to fight for this small group or that small group to be given a vote, and the idea of universal franchise was laughable to everyone, rich and poor alike. Does that mean ancient Egyptians had a right to vote for the Pharaoh that was always infringed, 100% of the time? I don’t know.
I also think “right,” even just in the political sense, is an overloaded term. The right to vote is not of the same fundamental nature as the right to not be raped or murdered. And what some might say is a right to healthcare services or an attorney is different still. The unifying theme is a set of rules that a culture or society in some way or another collectively deems off limits to the otherwise fickle nature of the political process.
There’s also a sense of permanence. If I am a slave, and I’m freed today, but enslaved again next week, and then freed again the following month, and then enslaved again in September, it’s clear there’s no actual protection for the right to be free from slavery. Similarly, if someone says healthcare should be a right, they’re generally saying that when accessible healthcare does get instituted, there needs to be some protections put in place to prevent the next party from dismantling the whole thing and having to do it all over again. It should be a “once and for all” kind of solution, at least in the broad strokes.
Well, that wasn’t the ONLY reason for the Second Amendment. They needed guns to keep the slaves in line, too.
This is a great post, DrCube.
~Max
If the right to bear arms falls under the rights to liberty and property, wouldn’t the best argument against the right to bear arms be that, in too many cases, it infringes on people’s natural right to life?
The Fifth/Fourteenth Amendment due process clauses only restrict the federal and state governments from depriving people of life without due process. Homicides committed by private individuals are irrelevant. The “cases” you have in mind could possibly be relevant, but only if you limit yourself to, say, police or other state/federal actors.
It would probably be better to just stick with the usual arguments; the Supreme Court held that liberty and property rights protected by the due process clause can be subject to reasonable restrictions, specifically in the interest of preserving life. One Supreme Court case involved the first state to require licensing for individuals to practice medicine. The court ruled that the liberty to practice a profession of one’s choosing is protected by the due process clause, but it may be subject to reasonable restrictions by the state. Given the life-or-death decisions an individual makes when practicing medicine, the court upheld the state regulations. Dent v. West Virginia , 129 U.S. 114 (1889). It seems to me there is a parallel with the life-or-death decisions an individual makes when using a gun; insofar as the 2nd Amendment’s individual right to bear arms is incorporated against the states by the due process clause, it is subject to the corresponding reasonable regulations.
~Max
So this thread has run its course, and that’s fine, but I thought I’d share my thoughts on what I learned.
I think a big part of the issue is a basic disagreement about morality. It seems to me like those of us on the gun control side of the argument are following a consequentalist doctrine. Guns lead to unnecessary deaths. They DON’T make you safer. Their prevelance in or society leads to distrust and police brutality. Our country is a far worse place for its permissible gun laws by any metric we care to measure. So we see no reason to support the proliferation of guns.
Those on the anti gun control side, on the other hand, are arguing from a deontological perspective. There is a Right to bear arms. Rights must not be infringed. Any restriction we add to the current permissive situation is an infringement, and since rights must not be infringed, it must be opposed.
Frankly I don’t see any way for the two sides to come together on this.