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Response to DanTex (Reply #65)

Mon Dec 19, 2011, 01:51 AM

74. You either know better or you should

 

Last edited Mon Dec 19, 2011, 03:00 AM - Edit history (2)

Well, 2A was in fact intended to prevent the...

...federal government from disarming militias.


The actual fact of the matter is that the Second Amendment was written to prevent the government from infringing "the right of the PEOPLE to keep and bear arms." Not the right of the Militia. You really cannot rewrite the Second Amendment to meet your policy preferences.

The one thing that is actually obsolete here, as I pointed out, is the question of standing armies versus militias (Red Dawn fantasies notwithstanding). My last post was actually more about the philosophical side of the issue -- whether there is any basis for considering gun ownership to be a civil right, as opposed to whether Scaliaphiles are able to find plausible legal cover for their right-wing political views. Centuries ago, issues regarding standing armies and militias may have legitimately justified considering RKBA and an armed citizenry as civil rights issues. But, the issues surrounding guns today are more mundane -- public safety versus self-defense, hunting, etc. -- so elevating gun ownership to the level of a civil right alongside things like free speech is a bit silly.

You need not go back to the founding to see that the Second Amendment is a personal right. The Supreme Court has spoken often on that point, as has the Unites States of America. Neither has ever taken the collective position.

The very first time the Supreme Court addressed the right to keep and bear arms, it made crystal clear that it was a right "of person." It also said that citizens had the right ("privileges" and "immunities" ) of traveling freely in every state and of carrying arms wherever they went. The Court ranked the RKBA with the right to speak freely on political subjects, the right to free association and the like. That was not controversial. Nor is it "silly," your historical and legal naivete notwithstanding. And please note that they did not "elevate" the RKBA; it was already classed with those rights by the "silly" Constitution.

What was controversial was the Chief Justice's lying and maintaining that people of African descent were not citizens at the founding and never could be citizens--lying in the face of abundant evidence to the contrary. That started a War.

After the Civil war, the Abolitionist Senators (right wing Scalia followers, no doubt) undertook to overrule the Supreme Court. Using the Courts own words, they wrote that

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


backed up by this:

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.


Now I know this is too subtle for people devoted to anti-gun mythology at any cost. So I'll break it down. Section 1 says that states cannot deny citizens their "privileges" and "immunities"--which include the first Eight Amendments. Section 5 says that Congress is empowered to use force to keep the states from making or enforcing laws that abridge the rights of citizens to keep and bear arms.

Now I know that those devoted to anti-gun mythology will still not be persuaded. After all, this is just the word of TPaine7. What of the guys who actually wrote the Fourteenth Amendment? Are they at least worthy of consideration?

Here is how the Fourteenth Amendment was introduced on the floor of the Senate:

“{The Fourteenth Amendment's} first clause, {which} I regard as very important . . . relates to the privileges and immunities of citizens of the United States . . . . To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all of the people; the right to keep and bear arms. . . .

…{T}hese guarantees . . . stand simply as a bill of rights in the Constitution … {and} States are not restrained from violating the principles embraced in them …. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”—Senator Jacob Howard introducing the Fourteenth Amendment to the Senate, quoted by Yale Professor Amar. Akhil Reed Amar, The Bill of Rights, Creation and Reconstruction (Harrisonburg, VA: R.R. Donnelley & Sons Company, 1998), 185-6 (emphases supplied).


According to the authors of the Fourteenth Amendment, the "great object" of Section 1 (backed up by section 5) was to force the States to respect the "personal rights" protected by the first eight Amendments, explicitly including the right protected by the Second Amendment--the right to keep and bear arms. How's that for a "creative legal theory"?

If the right is a right of the states--the right to maintain armed militias--how can states possibly be forced to respect their own rights? That is a position that only gun control diehards could find tenable.

The fact that the Fourteenth Amendment was written to protect the individual right to keep and bear arms was no secret. The floor speech was published--either as a gloss or in its entirety--in the leading papers of the day. It was debated throughout the country. Both the Abolitionists and the racists agreed that the Amendment would have that effect. The evidence is overwhelming to any minimally open mind.

Knowing full well what they were doing, the United States of America ratified the Fourteenth Amendment. That is, they enshrined in the Constitution their understanding that the Second Amendment protects an individual right to keep and bear arms--a right that far from protecting a right of states to have armed militias actually protects a personal, individual right that is enforceable against the states. AGAINST THE STATES.

It is true that Heller did not address the Fourteenth Amendment, and so the minority was able to sidestep this history. That is a technicality, based on a legal stratagem by the party bringing the case against DC. It does not affect my argument in the slightest. I still maintain that the Fourteenth Amendment and the Framers of the Fourteenth Amendment are both greater authorities on the meaning of the Second Amendment than the Heller minority.

Alan Dershowitz was right:

"Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."

http://en.wikipedia.org/wiki/Alan_Dershowitz#cite_ref-52

While some are merely ignorant, many know better or have had a chance to learn, and have stubbornly clung to their mythology. These are worse than foolish; they are dishonest. They are fully deserving of the contempt in which they are held--to a greater and greater extent--by the American people.

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