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The one of what limitations on the exercise of rights are permissible, that is. And how that is to be determined. And permissible in whose mind, and how that is to be determined. This is why people invent gods, and then pretend to know what the gods want. First principles: something engraved in stone that tells us what to do. Sadly, we don't have any. So we get popes and monarchs and philosophers, and infallible dogmas and divine rights and categorical imperatives.
Your suggestion:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press such as allowed by law; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
ends up creating a perfect circle. A constitution that allows itself to be overridden by a law. Not dissing it -- using it as an example of the problem. From yours, we move on to what the Canadian constitution actually does say, right in section 1:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
See what I mean?? You try to tighten it up, and the spiral gets smaller, but there's still a circle. This, but that. But not this. Except if that. And ultimately you hit the point where some people say Yes this! and others say No this! Yes we have to prohibit ___, because !!! No, we may not prohibit ___, because !!!. And everybody can point to the first principle and all the yes-s and no-s and except-ifs and but-not-ifs that went before, and say *they* are the ones continuing along the same line, and the other ones are the ones going backwards or sideways.
Somewhere, in all of it, is this idea that "we" just know. We just know what's okay and what isn't. Obviously your framers thought that too -- to the extent that they didn't even think it had to be spelled out. Freedom of speech shall not be abridged -- but *of course* people won't be allowed to lie under oath or utter threats against the president. (Or a few other things people would not have been allowed to do back then ... but may do now with impunity, based on what those framers said, but probably not at all on what they thought. Imagine their reaction to Larry Flynt.) Why would we even bother mentioning that? Everybody knows it.
It's the refusal to acknowledge any of this that makes it impossible to hold a rational, civil discussion, e.g. with people who insist that the second amendment means exactly and only what it says and only those words may be considered, while merrily having nothing to say about how this works if applied to what the first amendment says. If they agree that shouting Fire in a crowded theatre where there is no fire may be outlawed, despite what the first amendment says about not abridging the freedom of speech, then they just can't say that possessing handguns may not be outlawed because of what the second amendment says about not infringing the right to keep and bear arms. That really and simply is not an end to the matter for one case if it isn't for the other. They may be able to make cogent argument for their position, but they will never be "right" any more than someone who argues for or against prohibiting child pornography will be "right".
There is also substantial writings to indicate that they felt the people should also be armed for personal defense of life and liberty as well, but I agree with the arguments yesterday that it was primarily in a militia context.
My goodness.
And I gather that there is also some mumbling in the direction of what I've said about your second amendment for a long time: that it is an individual right, not a collective right, but it is a particular kind of individual right. It is an individual right to do a certain thing in order to exercise a collective right.
My analogy is the right to vote. It's a right that's actually spelled out in my constitution:
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
but that's not a good example of what I'm on about, because it actually does contain the internal limitations I'm getting at. There is a more general "right" to vote: the civil/political right of people to participate in the government of their society. If it weren't in our constitution, it would still be regarded as the right of every individual. As framed, it's a civil right: a right that derives from status as a "citizen", a member of the polity, as your court has put it in relation to the right to keep and bear arms, I believe. It's not like the right to life or liberty, which derive from status as a human being.
But the point is that it's a right that must be exercised in a certain way and for a certain purpose. There is no "right to vote" willy-nilly. You can't just announce that you've decided to vote now and could you please have a ballot, and will everyone please abide by the results of the vote you've decided to engage in. You get to vote in an election.
Elections are exercises of the *collective* right to self-determination. *A people* gets to govern itself. But a people can't do that unless people do it. So people have to have the right to vote, in order that the people can exercise its right to self-determination.
Ah, but what if the people in charge of holding elections don't hold one? How do you exercise your right to vote? How does the people exercise its collective right to self-determination? Who gets to call the election?
A well regulated militia, being necessary to the security of a free state ...
The security of the state, the freedom of the state, are collective rights. The collective right of a people to security -- not to be harmed, physically or economically, etc.; and the collective right of a people to be free -- not to be governed against its will. The need for the means to ensure that security and that freedom. And thus the need for individuals -- the people -- to be authorized and equipped to take action that will enable the collectivity -- the people -- to exercise its rights.
That's how I see the second amendment. Your framers were concerned about the freedom and security of their youthful state, and saw a need for a way to preserve and protect them. The whole revolution thing was an exercise of those collective rights: peaceful and prosperous existence as a collectivity, and self-determination as a collectivity.
(How that's all related to the whole decentralized, state-vs-federal power struggle, I am not sufficiently expert to say. I tend to think it really isn't, actually, except in terms of the mechanics of how the individual/collective rights recognized/protected in that amendment would then be exercised, and what collectivity's rights to security and self-determination were in issue.)
The business about weapons for personal protection (or recreation, or subsistence), that's a completely different thing and comes under the individual rights to life and liberty, and the ways that those rights are exercised, and whether any particular rule interferes unacceptably in the ability to exercise them. And in that way it's subject to all the ordinary considerations about how justification for interferences in the exercise of rights is established.
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