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  1. #1
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    Context of the second ammendment

    I was working on a blog article for my personal blog (www.SigfriedTrent.com) on the issue of the gun control debate. I was writing about the second ammendment and its meaning when I had something of a revelation (at least a revelation to me). I thought I'd describe it here and see if folks think I'm on the mark or not.

    The key here is to understantd that prior to the 14th ammendment, the rights described int he bill of rights were only prohibitions on the federal government. State's could in principle deny something like freedom of speach provided their own consittution or laws didn't protect it. In fact, until the 14th ammendment the Supreme court wasn't often all that busy since they could only hear cases about federal laws or actions of the federal govenrment.

    This means that the 2nd ammendment, like the rest really only proveded that the federal government could not stop citizens from baring arms in the state militias. When you thik of it in this context, the part where it calls for the right to a well regulated militia makes a lot of sense. The second ammendment protects the rights of not only citiciens but the states themselves to provide for their defense. In colonial times there were numerous threats, indians, the brittish, the french, the spanish, slave revolts, insurection, bandits, other colonies, and of course the threat that the new federal government and its standing army could try and subjigat a state.

    I next went to look at state consititutions and the language of their protections on the right to bare arms. All but two of the original colonies had such provisions. The wording in them varied however. Some did indeed call on the right to bare arms in personal self defense. Others only mention the need for a militia, specifically in defense of the state itself. Some of them also called out how dangerous a standing army was and that the militia was essential to prevent having a standing army. States that had this language don't mention self defense at all.

    Then turning to the statements of contemporary politicians and the records of the arguments for the second ammendment, you can see that differnet parties had rather different justifications and interests. But in no way would they expect the 2nd ammendment to protect an individual right to arms except from federal action. A state could very well restrict arms if they didn't also have some protection in their constitution. (New York and New Jersy didn't and still don't have such protections at the state level). I think given the context and that those who supported it most strongly were from the states that ended up with state consittitions warning of the danger of standing armies and focusing their arms rights on maintianing a militia, that the most central thrust of the 2nd ammendment was to ensure states could maintain their own soverignty against a potentially over-riding federal power and armed forces.

    I'm NOT going to go into what this means for the current gun debate. I just want to see what folks think of this line or reasoning and the conclusion as to what the 2nd ammendment did and was aimed at when it was penned.
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  2. #2
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    Re: Context of the second ammendment

    I read a second amendment pro-con book, that said something along the same lines here. So definitely not out of left field.
    Also, think that the reason the amendments were added, and not original to the constitution was partly because it was seen as common knowledge that the federal gov didn't have certain powers and authorities. It was after all a limited gov with specific enumerated powers. Further, there were some that thought that listing SOME rights, would imply that the document was creating those rights, or that only those rights were recognized. I think that line could be taken to support what you are saying here, though I am not versed enough on it at this time to further that line.

    On the other side of the argument, I am not sure "shall not be infringed" is something specific to the federal gov. Can it only be a right on the federal level? So, women have a right to vote.. but only in federal elections. We have the right to free speech, but only from federal regulations and laws.
    These are not simply the bill of limiting the federal gov's power(though it does). It is a bill enumerating important rights of the people all together. How would it go if there was some major restriction for the press at the state level only? Would we agree that the Const has no role in dealing with that action?

    Also, another thought, that I'm not sure how applies, Is the civil war did change the relation of the states to the fed. Then the case of the 13th amendment (Amendment freeing the slaves) applied to the states, how much is the second amendment like it?
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    Re: Context of the second ammendment

    Quote Originally Posted by Sigfried View Post

    Then turning to the statements of contemporary politicians and the records of the arguments for the second ammendment, you can see that differnet parties had rather different justifications and interests. But in no way would they expect the 2nd ammendment to protect an individual right to arms except from federal action. A state could very well restrict arms if they didn't also have some protection in their constitution. (New York and New Jersy didn't and still don't have such protections at the state level). I think given the context and that those who supported it most strongly were from the states that ended up with state consittitions warning of the danger of standing armies and focusing their arms rights on maintianing a militia, that the most central thrust of the 2nd ammendment was to ensure states could maintain their own soverignty against a potentially over-riding federal power and armed forces.
    Yes, and the origin of that fear was in the southern states where their militias were slave patrols. Patrick Henry had Madison change "country" to "state" along with other edits in the 2nd amendment because they feared that their slaves could be freed through service in a federal army...which later happened.
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    Re: Context of the second ammendment

    Quote Originally Posted by MindTrap028 View Post
    On the other side of the argument, I am not sure "shall not be infringed" is something specific to the federal gov. Can it only be a right on the federal level? So, women have a right to vote.. but only in federal elections. We have the right to free speech, but only from federal regulations and laws.
    Prior to the 14 ammendment in the bill of rights, the other rights enumerated did not prevent states from abrigating them, only the federal government. The 14th ammendment changed that and obligated every state to respect the rights outlined in the constitution. It was a huge change. I was shocked they never taught this in school, I learned it listening to an audio lecture on the history of the supreme court. I'd always assumed the bill of rights had always applied to everyone at all levels as it does now.

    These are not simply the bill of limiting the federal gov's power(though it does). It is a bill enumerating important rights of the people all together. How would it go if there was some major restriction for the press at the state level only? Would we agree that the Const has no role in dealing with that action?
    That was the way it was, states could and did limit free speach. THe 14th ammendment was a big deal. It is cited in more legal cases than any other part of the bill of rights. Most supreme court cases would have no grounds without it.

    Also, another thought, that I'm not sure how applies, Is the civil war did change the relation of the states to the fed. Then the case of the 13th amendment (Amendment freeing the slaves) applied to the states, how much is the second amendment like it?
    Without the 14th ammendment the 13th would not apply to states, that is why they were put in together. Even after it took a while for the court to come around to it.
    https://en.wikipedia.org/wiki/Incorp...Bill_of_Rights

    "Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments."

    It is worth noting that most state constitutions also protect freedom of speech along with many other things, but legally the supreme court could not hear cases about state laws or actions denying freedom of speach or anything else in the bill of rights. They could only rule on cases about federal actions and laws.
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    Re: Context of the second ammendment

    Oh for God's sake...

    It's "amendment"

    AMENDMENT

    AMENDMENT

    I LOVE 99% of your posts, but bruh, SPELLCHECK. Reading your brilliantly thought-out posts and always, always, always seeing weird spelling errors is like watching Luciano Pavarotti sing Ave Maria with his fly open.

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    Re: Context of the second ammendment

    Quote Originally Posted by SIG
    Prior to the 14 ammendment in the bill of rights, the other rights enumerated did not prevent states from abrigating them, only the federal government.
    Right, just not sure how you intended to "incorporate" that into the angle you were taking in the op.

    Context in 1776 vs context of ... 1920's
    or some other, how we should see it.
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    Re: Context of the second ammendment

    Quote Originally Posted by Dionysus View Post
    I LOVE 99% of your posts, but bruh, SPELLCHECK. Reading your brilliantly thought-out posts and always, always, always seeing weird spelling errors is like watching Luciano Pavarotti sing Ave Maria with his fly open.
    Sorry... I actually have this great online spell checker... but it doesn't work with old ODN very well and highlights things in the wrong place and generally makes it so I'd have to be really deliberate about checking my posts in another piece of software. I'm kind of lazy.... But I will try to do better! My appologies.

    And why does it only have one M its a soft A it should have two Ms before the next vowel. English is so stupid!

    ---------- Post added at 06:14 PM ---------- Previous post was at 06:12 PM ----------

    Quote Originally Posted by MindTrap028 View Post
    Right, just not sure how you intended to "incorporate" that into the angle you were taking in the op.

    Context in 1776 vs context of ... 1920's
    or some other, how we should see it.
    Ah yes, when I was writing my blog article it was about how the founding fathers saw it since that is a common point of contention. I left that out of my OP as I was kind of short handing. My mistake.
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  12. #8
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    Re: Context of the second ammendment

    Quote Originally Posted by Sigfried View Post
    Prior to the 14 ammendment in the bill of rights, the other rights enumerated did not prevent states from abrigating them, only the federal government. The 14th ammendment changed that and obligated every state to respect the rights outlined in the constitution. It was a huge change. I was shocked they never taught this in school, I learned it listening to an audio lecture on the history of the supreme court. I'd always assumed the bill of rights had always applied to everyone at all levels as it does now.



    That was the way it was, states could and did limit free speach. THe 14th ammendment was a big deal. It is cited in more legal cases than any other part of the bill of rights. Most supreme court cases would have no grounds without it.



    Without the 14th ammendment the 13th would not apply to states, that is why they were put in together. Even after it took a while for the court to come around to it.
    https://en.wikipedia.org/wiki/Incorp...Bill_of_Rights

    "Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments."

    It is worth noting that most state constitutions also protect freedom of speech along with many other things, but legally the supreme court could not hear cases about state laws or actions denying freedom of speach or anything else in the bill of rights. They could only rule on cases about federal actions and laws.
    This is a hugely important point. The 14th amendment, over time, has whittled away at the concept of federalism. It is the reason many federalists believe the 14th amendment needs to be reworded. The issue was that the Congress wanted to ensure that blacks could not be denied citizenship by the states. However, the amendment was rushed and, it is generally understood that it was not worded to do what Congress intended. The amendment was meant to protect blacks, however, it has been expanded to include everything under the Sun. Even Roe v. Wade is based, in part, on the 14th amendment. Title IX is based on the 14th amendment. Anchor babies are protected by the 14th amendment. None of this was remotely intended. Frankly, it has become a big crock of poop. States have almost no recourse to govern themselves in any meaningful way because of this hastily worded amendment. It has been used as a back door by progressives to undermine American society and the idea of a federal republic since progressives prefer the concept of mob rule style democracy. I'd love to see it repealed and replaced by a more concise amendment.
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    Re: Context of the second ammendment

    Quote Originally Posted by IBELSD
    I'd love to see it repealed and replaced by a more concise amendment.
    I can get behind that, but politicians would never go for a clearly worded law that limits their power or agenda. Soooo, sucks to be us.
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    Re: Context of the second ammendment

    Quote Originally Posted by Ibelsd View Post
    This is a hugely important point. The 14th amendment, over time, has whittled away at the concept of federalism.
    Of course I'm rather a fan. I think that no citizen in the US should be denied basic liberties and shoul always have equal protection under law. I don't give a fig for states rights compared to that. I do feel local governments are much better at handling local matters and that much regulation should be local, but basic liberties should be enshrined for all and should be abrogated by none.
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    Re: Context of the second ammendment

    Quote Originally Posted by Sigfried View Post
    Of course I'm rather a fan. I think that no citizen in the US should be denied basic liberties and shoul always have equal protection under law. I don't give a fig for states rights compared to that. I do feel local governments are much better at handling local matters and that much regulation should be local, but basic liberties should be enshrined for all and should be abrogated by none.
    I think the issue is that the Constitution defines our agreement with the federal government, not our agreement with our state governments. You are basically arguing that the ends justify the means. I am arguing that the 14th amendment destroys are liberty by usurping the citizens' rights for local self-governance and makes a mockery of the concept of federalism.

    I understand your concern about equal rights. It is legitimate. Certainly, the federal government should treat all citizens equally. How does this trickle down to the idea of independent states? You are choosing expediency over self-determination and individual liberty. I believe it is a dangerous game. It is a game which only has one possible ending, tyranny.
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    Re: Context of the second ammendment

    Quote Originally Posted by Ibelsd View Post
    I think the issue is that the Constitution defines our agreement with the federal government, not our agreement with our state governments. You are basically arguing that the ends justify the means. I am arguing that the 14th amendment destroys are liberty by usurping the citizens' rights for local self-governance and makes a mockery of the concept of federalism.

    I understand your concern about equal rights. It is legitimate. Certainly, the federal government should treat all citizens equally. How does this trickle down to the idea of independent states? You are choosing expediency over self-determination and individual liberty. I believe it is a dangerous game. It is a game which only has one possible ending, tyranny.
    But a state doesn't, and shouldn't, have the legal right to deprive individuals of their constitutional rights.

    No state should have the legal option of, for example, creating a law barring its citizens from criticizing state government officials and the federal government should intervene if a state attempted to legally punish citizens for doing that.

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    Re: Context of the second ammendment

    Quote Originally Posted by MICAN
    But a state doesn't, and shouldn't, have the legal right to deprive individuals of their constitutional rights.
    I was just reading about the civil war, and one of the things about slavery that the south was saying was basically. Look this wasn't a problem when we joined, and you guys(northern states) were fine with removing language complaining about slavery of England... now you have outgrown us and want to push us around and end our economy because of your desires.

    Paraphrasing of course.

    So. The push and pull between state and federal was and is legit. Of course we all side with the north for being anti slavery, but what if it were guns or speech or owning other property? Who should win?
    where is the line and how do we protect it?

    I guess, to the quote I am responding too, the other side of the coin is, should the fed be able to force the will of the several states on the few? ....
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    Re: Context of the second ammendment

    Quote Originally Posted by MindTrap028 View Post
    So. The push and pull between state and federal was and is legit. Of course we all side with the north for being anti slavery, but what if it were guns or speech or owning other property? Who should win?
    The constitution should win.

    There might be grey lines concerning guns and free speech of when a law "crosses the line" but per my earlier example, we can agree that one has the constitutional right to criticize the governor of his state. So if a state passes a law forbidding such criticism and the federal government opposes that law, then the federal government, being on the side of constitutional rights, should clearly win.

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  21. #15
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    Re: Context of the second ammendment

    Quote Originally Posted by mican333 View Post
    But a state doesn't, and shouldn't, have the legal right to deprive individuals of their constitutional rights.

    No state should have the legal option of, for example, creating a law barring its citizens from criticizing state government officials and the federal government should intervene if a state attempted to legally punish citizens for doing that.
    Well, that is kind of debatable. What is the point of a state constitution if you are going to insist that the federal constitution is all that matters? Really, what is the point of having states at all? What if the federal constitution is all that matters and, via constitutional amendment, the right of free speech/right to protest the government is removed? Does that mean that the people automatically lose the right to petition their own state governments too?
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    Re: Context of the second ammendment

    Quote Originally Posted by Ibelsd View Post
    What if the federal constitution is all that matters and, via constitutional amendment, the right of free speech/right to protest the government is removed? Does that mean that the people automatically lose the right to petition their own state governments too?
    This is kind of a slippery slope argument, as what you're essentially talking about is a constitutional amendment which would repeal the 1st amendment, which seems to be more than a bit of a stretch.

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    Re: Context of the second ammendment

    Quote Originally Posted by mican
    The constitution should win.
    I would say why? I think IBELSD makes a good point, what is the point of a state const?

    Should the local town answer to Washington in all things? I mean, we talk about the const, but in application it is the federal gov that is going to be given preference.
    The local town tells a land owner he can dig a ditch, then the EPA fines him into oblivion for doing so. Who is really better able to govern that?

    Does the "Fed const should always win" position say that it is the EPA? (I ask to check if you think my application is reasonable).
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    Re: Context of the second ammendment

    Quote Originally Posted by Ibelsd View Post
    I think the issue is that the Constitution defines our agreement with the federal government, not our agreement with our state governments. You are basically arguing that the ends justify the means. I am arguing that the 14th amendment destroys are liberty by usurping the citizens' rights for local self-governance and makes a mockery of the concept of federalism.
    Well, if the ends are freedom of speech, life liberty and all that, ya, the means of focusing authority in the national government is well justified. If it was states that were protecting liberty and the federal government oppressing it I'd be all for the states, but it mostly hasn't worked out that way. Federalism as an ideal... died with the civil war in America. Those most interested in states rights wanted to use them to deny liberty to a great many people. They wanted the freedom to opress a large portion of their population. The liberty to take away another's liberty isn't really liberty at all, it's just oligarchy in disguise of democracy.

    I'm for local jurisdiction, but more as a matter of pragmatism than idealism. I think there are certain baselines of liberty all Americans should have and no element in society should be permitted to take them away. That is the idealism behind the bill of rights and I stand with it 100%. The idea that it doesn't apply to state governments and thus to nearly all the american people would make it a joke, just pretty words with little to no meaning.

    I know almost no one that consideres them selves first a citizen of a state, and only second a citizen of the united states. It used to be a common notion of course, there are a few that hold on to it, but most Americans don't think that way. I certainly don't. i'm a citizen of Washington state, but it's really just where I used to live and little more. I derive almost no sense of identity from it and I feel no special protection from my state. Most of its rules are matters of local practicality and have little to do with the fundamentals of my life. On the other hand, the bill of rights feels absolutely fundamental to my liberty and sence of ethics. Not every part of it, but much of it.

    I understand your concern about equal rights. It is legitimate. Certainly, the federal government should treat all citizens equally. How does this trickle down to the idea of independent states? You are choosing expediency over self-determination and individual liberty. I believe it is a dangerous game. It is a game which only has one possible ending, tyranny.
    I don't see any difference between tyrany of a state and tyrany of a larger govenrment. Tyrany is simply one person denying another of their liberty. It doesn't matter who is doing it other than they have authority and power to make it happen. If states are oppressing people and the federal goernment stands to stop them, by all means I'm on board. If the feds are oppressing people and the states are trying to stop it, i'm for that too but my first inclination is to stop the federal government by its own apparatus. It is after all run by representatives chosen at the state and local level.
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    Re: Context of the second ammendment

    Quote Originally Posted by Ibelsd View Post
    Well, that is kind of debatable. What is the point of a state constitution if you are going to insist that the federal constitution is all that matters?
    I didn't say the federal constitution is "all that matters".

    And the US constitution says that plenty of issues are to be left to the states (10th amendment). So unless everything in the state constitution is addressed in the US constitution, there are reasons for a state constitution.

    Quote Originally Posted by Ibelsd View Post
    What if the federal constitution is all that matters and, via constitutional amendment, the right of free speech/right to protest the government is removed?
    Then I would hold a different position on whether the constitution should be abided by.

    Quote Originally Posted by Ibelsd View Post
    Does that mean that the people automatically lose the right to petition their own state governments too?
    No. The constitution does not give us our rights. As it is currently written, it protects our rights. So if the constitution were changed in a fashion where it infringed on our rights instead of protected them, I would no longer hold that it is a valid basis for US law.

    To be clear, my support for the US Constitution is not based on an appeal to authority ("we should agree with the highest authority in all manners"). I agree with the content of the US constitution and, per our example, EVERYONE's right to criticize our leaders should be upheld. If the content of the US Constitution were different, then I would not necessarily argue that the constitution should overrule state law. And do you actually disagree with me? Do you think that states should be allowed to outlaw free speech without government interference? I would assume not. I assume that like me, you believe that the INDIVIDUAL has the right to criticize his/her leaders and there can be no legitimate law saying otherwise and there should be rules that apply to ALL governments at all level not allowing them to create and enforce such laws.




    ---------- Post added at 11:03 AM ---------- Previous post was at 10:57 AM ----------

    Quote Originally Posted by MindTrap028 View Post
    I would say why? I think IBELSD makes a good point, what is the point of a state const?

    Should the local town answer to Washington in all things?
    No. And I never said otherwise. I'm arguing that all governments should abide by the US Constitution, not whatever people in Washington say.

    Quote Originally Posted by MindTrap028 View Post
    I mean, we talk about the const, but in application it is the federal gov that is going to be given preference.
    The local town tells a land owner he can dig a ditch, then the EPA fines him into oblivion for doing so. Who is really better able to govern that?
    This is off-topic to my argument. As far as I know the constitution says nothing about whether the town or the EPA should prevail in this hypothetical controversy.
    Last edited by mican333; July 22nd, 2016 at 07:33 AM.

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    Re: Context of the second ammendment

    Quote Originally Posted by MICAN
    No. And I never said otherwise. I'm arguing that all governments should abide by the US Constitution, not whatever people in Washington say.
    I appreciate your point here in that I agree you did not say "whatever Washington says" and you have limited your argument to answering to the const.

    My point is that, that is one and the same as arguing for the powers of Washington. Because, as far as I know, the const is what gives the Fed it's powers.
    So like my EPA example, that is a federal gov thing, and gets it's powers from the const (presumably). So my point continues, that in application, your argument would mean that the EPA should prevail.
    As it is basically a const established (per it's powers being derived from the const) agency.

    Thus it follows, that saying the const and thus the fed should be differed to in all maters which it speaks, is the same as saying the EPA should prevail over the state or local, all the time.


    Questions should you disagree that it follows.

    1) Are you disagreeing that agencies such as the EPA are const agencies, thus your opinion is that they are basically unlawfully set up and are illegitimate?
    2) If they are not illegitimate, then you must agree that they are getting their powers from the const. So then in what way is my example not an instance of saying the const should win?

    3) .. or is it possible that you are saying that the rights specifically named and protected in the const should always win, but not the powers given in the const?
    I apologize to anyone waiting on a response from me. I am experiencing a time warp, suddenly their are not enough hours in a day. As soon as I find a replacement part to my flux capacitor regulator, time should resume it's normal flow.

 

 
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