If the right to bear arms is not an individual right, just what is it ...

[RoeBear]

... the right of the government to bear arms???

Since when do governments have to give themselves the right to bear arms in their constitution?

If it's a "collective right of the people" how would anyone define it? (Communes owning guns ....?)

[Caution]

1. Can open! Worms everywhere!

NO comment from me :)

[bowens43]

2. You bored or what?

this is flame bait for sure.

[RoeBear]

3. Is this your first time...

...to the gun dungeon? :D:

[hijinks]

4. its definatly an individual right in KY

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

<...>

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

http://www.lrc.state.ky.us/Legresou/Constitu/001.htm

[RoeBear]

5. Michigan has it covered also...

...Article 1, section 6 :

§ 6 Bearing of arms.
Sec. 6.

Every person has a right to keep and bear arms for the defense of himself and the state.

[hijinks]

6. you got it wrong!!!

By 'every person' they ment the collective state militia and by 'himself and the state' they just ment the state.

[iverglas]

7. first

You badly need to understand what the term "collective rights" means. And I'll caution you against listening to Benchley -- he's a charming fellow, but he doesn't get this one.

:P

A collective right is not a right of a government (although it might be exercised by a government).

A collective right is a right that belongs to and may be exercised by a collective, or "collectivity", just as a human right is a right that belongs to and may be exercised by a human being.

Here is a widely-acclaimed paper on the issue:

http://www.uu.nl/content/16-3.pdf

Google cached html version

Intro:

This is the first part of a report which I have been asked to draw up by the Advisory Committee on Human Rights and Foreign Policy of the Netherlands in order to prepare the drafting of the Committee's opinion on collective rights. In the international legal practice in the last few decades, growing interest has been shown to the topic of collective rights. Besides the collective right to national self-determination -- a right that has been recognised already for some time --, other collective rights have been proclaimed. These include, for example, the collective right to development, to a healthy environment and to preserve one's cultural identity.

I haven't read the (very long) full paper, but from what I see it is more a survey of facts and thought than an opinion piece; in any event, I'm not offering or adopting it as "opinion", but as a background to the issues. Here's an example:

The Convention on the Prevention and Punishment of the Crime of Genocide was concluded on 9 December 1948, one day before the adoption of the Universal Declaration of Human Rights, and entered into force on 12 January 1951. This Convention provides protection from genocide to all persons and groups living within a State, as defined by national, ethnic, racial and religious criteria. Reference may be made to Article 2(1), in which the crime of genocide is defined in the following way: `Genocide consists of any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such'. It is noteworthy that a linguistic minority is not qualified as one of the groups to be protected. As the Report on Indigenous Peoples of the Dutch Advisory Committee on Human Rights and Foreign Policy (1993: pp. 21-22) indicates, the act of genocide itself is broadly conceptualised in this Convention. Genocide, as defined in Article 2(2) of the Convention, does not only encompass total destruction of a group, but, for example, extends to the infliction of serious bodily or mental harm and the deliberate infliction of conditions of life calculated to bring about the physical destruction of all or part of a group. The imposition of measures intended to prevent births within a group and the forcible deportation of a group's children also fall under the definition. Hence, the Convention can be said to cover both physical, biological and cultural genocide. It should be emphasised that the Convention actually does not state that a population group has the right to exist. What it does do, is to formulate it negatively as a prohibition of destruction of a group. In the literature however, a `right to exist as a group' is rather generally inferred from this `prohibition of genocide'.

There really are some "rights" that can be exercised only by groups, not individuals. The most fundamental collective right, the right of peoples to self-determination that is recognized in a number of international agreements, is one such right.

Obviously, anyone who adopts the "inalienable endowed rights" premise in discussing individual rights is not going to have an easy time grasping the concept of "collective rights". But I suppose it would be just as easy to reason forward from a "creator" and end up with collective rights. All depends on what you want your creator to be up to.



Frankly, if the "right" to possess firearms were regarded as a collective right, belonging to and capable of exercise by a group rather than individuals, it would still look odd to me.

Fundamental human rights and collective rights have things in common that a right to possess firearms simply does not share. For one thing, they don't tend to be prefaced by explanations of why they exist; there is some general agreement that they exist, even though people have different notions of why (religious notions, evolutionary notions, whatever).

The "right" in the second amendment does have a preface. Someone thought it was necessary to include that preface -- that is, that "right" just wasn't quite as "self-evident" as the rest of them. And it just isn't; that's quite correct. It is simply and obviously a different kind of "right".

The rights that your Declaration of Independence refers to as "unalienable":

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

quite simply do not include, specifically, a right to possess firearms. No more than they include a right to grow tomatoes, or go for evening walks. Such rights may be outgrowths of the rights to life and liberty, for instance -- one may have to grow tomatoes in order to eat in order to live, and one may choose to go for evening walks in the enjoyment of one's liberty -- but your founders & framers obviously did *not* regard them as, in themselves, "unalienable".

One may, in some circumstances, need to possess firearms in order to exercise one's right to life and liberty. But on the other hand, the exercise of the rights to life and liberty are ALWAYS subject to limitation by the state, in the interests of others.

And there can be little doubt that the possession of firearms can indeed be contrary to the interests of others -- and could operate against the state's legitimate attempts to restrict the exercise of, say, liberty.

A person found guilty of a crime may, we believe, legitimately be imprisoned: deprived of liberty. We even agree that a person may be deprived of liberty temporarily while awaiting adjudication of his/her guilt, by being arrested.

Would it then be tolerable for that person to use a firearm to defend his/her liberty?? If not, why would it not be legitimate for the state to restrict access to firearms, to ensure, just for starters, that it will be able to perform its legitimate functions, such as depriving violent criminals of their liberty in order to protect the lives of individuals?

If the right to possess firearms is regarded as a collective right, to be exercised by a people in order to secure the exercise of its right to self-determination, then those problems do not arise; individual possession of firearms can be regulated as necessary for that purpose.

If it is regarded as an individual right, then they do arise. And I just couldn't imagine that your founders & framers intended to create that kind of insoluble conflict between the state's performance of its legitimate functions, the functions by which it in fact secures the exercise of individuals' right to life, for instance, and the absolute and uninfringeable right to possess firearms.

It seems to me that what your founders & framers were really getting at was what we now call the (collective) right (of peoples) to self-determination.

http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
International Covenant on Civil and Political Rights
Adopted and opened for signature, ratification and accession by
General Assembly resolution 2200A (XXI) of 16 December 1966
entry into force 23 March 1976, in accordance with Article 49

You might even regard it as an auspicious coincidence that it came into force in a '76 year. Please read it, and try to see why I say this:

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,

Agree upon the following articles:

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

...

Weren't 1 and 2 there central to what your founders & framers were doing way back then? Securing the collective right of the people of the US states to determine their political status, pursue their development, freely dispose of their wealth and resources? Wasn't that the whole point of the thing?

So they had undoubtedly never heard the expression "collective rights". But a collective right was in fact exactly what they were exercising when they declared their independence.

And in that context, I tend to see the "right" of "the people" to possess firearms as an outgrowth of the right of the people to self-determination, in their minds, particularly in view of the preface to the assertion of that right in the second amendment.

I'm sure that I could be met with the usual barrage of "that's not what the Supreme Court said", "that's not what the constitution of State X says" ... .

But to put it bluntly, your Supreme Court probably wouldn't recognize a collective right if it tripped on it ... and your judicial and legislative and executive authorities would, for the most part, regard it as very much *not* in their interests to acknowledge that such things even exist. To do so would be to open the floodgates to all sorts of claims on the domestic and international scene that would be very much contrary to their interests.

That doesn't mean that what your founders & framers were thinking of when they undertook their entire project, of which the second amendment seemed to them to be a necessary part, wasn't a collective right: the collective right to self-determination. I think they plainly were, and I don't think that the second amendment can be analysed outside that context.

.

[Superfly]

8. Wow! This is a first!

A Canadian (US) Constitutional Scholar.

That's pretty unique.

[RoeBear]

9. I read your first paragraph...

...then dozed off for awhile.

Benchley and charming used in the same sentence. WOW! That's like Bush and smart being used in the same sentence (or Benchley and smart).

[DoNotRefill]

12. Nice long rant...

"The rights that your Declaration of Independence refers to as "unalienable":
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

quite simply do not include, specifically, a right to possess firearms. No more than they include a right to grow tomatoes, or go for evening walks. Such rights may be outgrowths of the rights to life and liberty, for instance -- one may have to grow tomatoes in order to eat in order to live, and one may choose to go for evening walks in the enjoyment of one's liberty -- but your founders & framers obviously did *not* regard them as, in themselves, "unalienable"."

Sorry, "that among these" does NOT mean that the listed items are all there is. It's pretty well universally recognized (except, apparently, by you and your ilk) that there's an inalienable right to self-defense. It's not a liberty issue at all.

[iverglas]

23. no, duh

"It's pretty well universally recognized (except, apparently, by you and your ilk) that there's an inalienable right to self-defense. It's not a liberty issue at all."

That would probably be why I didn't say it was a "liberty issue". Yawn. Hope you have a nice big supply of straw for those straw fellas.

I do love my ilk. The International Ilk of Smart and Sophisticated Thinkers. We meet jointly with the International Ilk of people who care about things other than their own self-interest.

.

[hansberrym]

26. So is there only a right to "unarmed" self-defense?

If you agree with the notion of a right to armed self-defense,
(meaning to defend oneself with effective weapons and not merely one's own hands) why go to such length's in denying an individual RKBA?

[RoeBear]

29. The International Ilk of Smart and Sophisticated Thinkers...

...hmmm. I thought for sure that we voted you out of the organization at the last meeting.

[hansberrym]

15. More anti-logic....Ever hear of Occam's Razor?

(quoting Iverglas)
Frankly, if the "right" to possess firearms were regarded as a collective right, belonging to and capable of exercise by a group rather than individuals, it would still look odd to me.

Fundamental human rights and collective rights have things in common that a right to possess firearms simply does not share. For one thing, they don't tend to be prefaced by explanations of why they exist; there is some general agreement that they exist, even though people have different notions of why (religious notions, evolutionary notions, whatever).

The "right" in the second amendment does have a preface. Someone thought it was necessary to include that preface -- that is, that "right" just wasn't quite as "self-evident" as the rest of them. And it just isn't; that's quite correct. It is simply and obviously a different kind of "right".
(unquote)




Your argument flows from the mistaken assumption that the first phrase is a justification of the existence of the right that follows.

A far better interpretation of the first phrase of the Second Amendment is that the first phrase is a rationale of why that right(which is stated in the Second Amendment and so is assumed to exist) should not be infringed. Since the founders of this country believed in the concept of unalienable rights (rights which are bestowed by the creator)it would make little sense to claim that the first phrase was a rationale for the existence of a god given right(whether collective or individual). Furthermore, that assumption leads to the need to define a new type of right.

Your argument violates Occam's Razor since it needlessly opens a can of worms when there is another option(the first phrase is a rationale for the non-infringement of the RKBA)that better matches the actual language of the amendment. Note there is no mention of the word "existence" or any reason to question the existence of the right that is stated, but the amendment does include the words "shall not be infringed". By interpreting the first phrase as a rationale for the non-infringement of the RKBA, the RKBA is seen as no different than the other rights recognized and protected in the BoR. Lastly this interpretation would agree with the various State RKBA provisions
which again would be favored when considering Occam's Razor.






http://pespmc1.vub.ac.be/OCCAMRAZ.html

Occam's Razor
one should not increase, beyond what is necessary, the number of entities required to explain anything

--------------------------------------------------------------------------------

Occam's razor is a logical principle attributed to the mediaeval philosopher William of Occam (or Ockham). The principle states that one should not make more assumptions than the minimum needed. This principle is often called the principle of parsimony. It underlies all scientific modelling and theory building. It admonishes us to choose from a set of otherwise equivalent models of a given phenomenon the simplest one. In any given model, Occam's razor helps us to "shave off" those concepts, variables or constructs that are not really needed to explain the phenomenon. By doing that, developing the model will become much easier, and there is less chance of introducing inconsistencies, ambiguities and redundancies.

[iverglas]

24. too bad your founders & framers obviously never had

Eh?

If they had, your second amendment might actually be capable of being read so as to mean something.


"Your argument violates Occam's Razor since it needlessly opens a can of worms when there is another option(the first phrase is a rationale for the non-infringement of the RKBA)that better matches the actual language of the amendment."

Hey -- sez you! I'm quite happy with my conclusion that the overriding concern was for the security of the free state that had just been established, and that the "right" to possess weapons referred to is simply the necessary mechanism for protecting that collective right to security.

But you really don't need to worry your head about my conclusions, do you?

.

[hansberrym]

25. Maybe your overriding concern is in defending your conclusion

rather than letting the evidence and reason be your guide.

There is more than a hint of circularity in your arguments in that you make choices (based on your conclusion) along the way to ignore an alternate interpretation which does not rely on error and is not inconsistent with the evidence. Instead you prefer a line of argument that assumes error, adds complexity, and assumes that the RKBA is something very different in the Federal BoR than it is in the many states' BoRs.



Why would one chose a more complicated argument which does not fit the actual text (the existence of the right is not in question, only its infringement) nor is the text structured in a way that would suggest that the right is limited to the defense of the state. Note that the first phrase is written if the form of a given, not a conditional. The first phrase is in the form of:

1) "That being the case" (an assumed fact, or a given)

rather than


2) "When/If that is the case" (a conditional)



Why would there be a collective right to do actions which are performed by individuals? (one has to overlook this inconsistency to choose the Collective Right interpretation)


Furthermore, the second amendment was decribed by the newspapers (associated with the Federalists who were the majority) of the day as a "right of the people to keep and bear their private arms". However, there are no known citations that support Collective Rights to counterbalance this and other documented instances where the RKBA is spoken of in terms that unambiguously indicate an individual right. Though the number of documented sources supporting an individual RKBA is Few, FEW is without doubt better than NONE.




(quoting Iverglas)
"If they had, your second amendment might actually be capable of being read so as to mean something."
(end quote)


The founders wrote the amendment, but it is only through a tortured reading of the text and history, and a conscious decision to ignore Occam's Razor and other norms of interpretation, that one can reach the conclusion that the amendment is meaningless. To conclude that the amendment is meaningless (or virtually meaningless), when there is another interpretation available, is itself a violation of the norms of interpretation.

Not only is the Second Amendment capable if being interpreted to mean something (in this case an individual right to keep and bear arms) it is highly probable that an amendment that was reviewed, debated, and ratified by many different legislative bodies actually does mean something.

[iverglas]

33. ya think?

My actual conclusion, as I think you're aware, is that your second amendment is something that I can pretty safely not bother having any opinion at all about.

My opinion, to the extent that I have one, is moot to both you and me. "Defending my conclusion" just is not a matter of much concern to me. Truly.

What I see is a very badly written, near-incomprehensible expression of some quite unidentifiable thought, formulated by some long-dead people whose thoughts have absolutely no authority for me and no bearing on anything I need to have a position on. Really and truly.


"Why would there be a collective right to do actions which are performed by individuals? (one has to overlook this inconsistency to choose the Collective Right interpretation)"

Now, we do know that we've been through this before. And I'm quite sure that we both know that your representation of what I have said is not quite accurate.

I have never said that there is "a collective right to do actions which are performed by individuals". Absolutely never. And you know it.

Remember how we discussed this? And the analogy I drew (acknowledging that there are no perfect analogies) to how the collective right of a people to govern itself involves the individual right of citizens to vote?

The collective right to which I referred in your second amendment is the right to "the security of a free state", the right that was exercised by the people of what became the USofA when they had that revolution -- an element of the right to self-determination, in some situations. (The right to self-determination does not *always* require "the security of a free state".)

Just like the collective right of that people to govern itself, of which the holding of elections is, in some situations, an element. (The right to self-governance does not *always* require the holding of elections.)

The individual right in your second amendment to which I referred is the right "to keep and bear arms". This is what individuals must (allegedly) be able to do in order for the people to exercise its collective right to the security of a free state, since the people must be able to repel invaders, for instance.

I NEVER SAID that the right "to keep and bear arms" is a collective right.

Just like the individual right to vote, in our respective constitutions, is what individuals must (in our minds) be able to do in order for the people to exercise its collective right to govern itself.

YOUR reading of your second amendment apparently disregards the entire first portion, "A well regulated militia, being necessary to the security of a free state,". Talk about violating the canons of interpretation.

Yes indeed, this does not mean that there is not some separate, pre-existing (and no, I will not say "natural") right "to keep and bear arms" that has nothing to do with the collective right to the security of a free state.

I find that right in the rights to life and liberty. No different from the right to keep pigs, or the right to bear flowers, or children. They are things that people do in the exercise of those fundamental rights: to continue living by defending themselves, and to live as they please by keeping and bearing whatever they fell like keeping and bearing.

Really: in what way does a "right to keep and bear arms" resemble a "right to life" or a "right to liberty"? In very little way, is my answer.

In the exercise of the right to life, we also have the "right" to eat; do constitutions normally say "the people's right to eat shall not be infringed"? Of course not; everybody knows that prohibiting people from eating would be a violation of the right to life. In the exercise of the right to liberty, we also have the "right" to eat pizza; do constitutions normally say "the people's right to eat pizza shall not be infringed"? Of course not; everybody knows that prohibiting people from eating pizza would be a violation of the right to liberty.

With that old caveat, of course -- prohibiting people from eating, or from eating pizza, or interfering in any way with people's ability to eat or to eat what they please, without justification, might be an unconstitutional violation of a right: the right to life (to eat in order to stay alive) or liberty (to eat what they pleased). That is the kind of violation we are concerned with, after all: the violation of constitutional rights in a way that is not constitutionally justifiable. We just aren't concerned with "natural" or any other rights, or anyone's personal opinion about whether violation of such rights is justified.

And I look at the "right" to keep and bear arms exactly the same way: prohibiting people from keeping and bearing arms, or interfering in people's ability to keep and bear what arms they please, as and when they please, without justification, might be an unconstitutional violation of a right: the right to life (to defend themselves in order to stay alive) or liberty (to own and possess and use what they please).

And (without going into the actual *argument* for these positions) I regard Canada's restrictions on firearms ownership, possession and use, just for example, as perfectly justifiable restrictions on the exercise of those rights.

For analytical purposes, and to understand what I'm saying, it would of course be useful to read something like the Canadian constitution (Charter of Rights and Freedoms), which reflects the 200 years of human development and thought and knowledge that occurred after your constitution was written.

The Charter identifies the kinds of rights and freedoms that it entrenches:

http://www.efc.ca/pages/law/charter/charter.text.html

Fundamental Freedoms
(conscience, religion, thought, speech, press, assembly, association ...)

Democratic Rights
(right to vote, limitation on length of legislatures)

Mobility Rights
(right to enter and leave Canada, and to travel and settle anywhere in Canada)

Legal Rights
(life, liberty and security of the person; rights in respect of search/seizure, arrest, detention, trial, punishment)

Equality Rights
(equality before and under the law, equal protection and benefit of the law)

Language and educational rights


These are all different kinds of rights. Again, I'll recommend this article about different kinds of rights (I really don't make this stuff up):

http://uichr.uiowa.edu/features/eb/weston4.shtml

Particularly helpful in this regard is the notion of three "generations" of human rights advanced by the French jurist Karel Vasak. Inspired by the three themes of the French Revolution, they are: the first generation of civil and political rights (liberté); the second generation of economic, social, and cultural rights (égalité); and the third generation of solidarity rights (fraternité). Vasak's model is, of course, a simplified expression of an extremely complex historical record, and it is not intended to suggest a linear process in which each generation gives birth to the next and then dies away. Nor is it to imply that one generation is more important than another. The three generations are understood to be cumulative, overlapping, and, it is important to note, interdependent and interpenetrating.

A "liberty" right is just not the same kind of animal as an "equality" right. Liberty rights are meant to protect the individual from intrusive action by the collectivity; equality rights are meant to enable individuals to participate in, and share in the benefits of membership in, the collectivity.

In the 18th century, the "right to life" was regarded in terms of "liberty" -- the right not to be killed by the state. We (at least out here) take a more expansive view of it these days. Ditto for the right to liberty -- we no longer regard it simply as the right not to be locked up by the state, we regard it as encompassing the liberty to live according to one's own preferences without interference or adverse consequences.

Another passage I would quote on point, from Madam Justice Bertha Wilson of the Supreme Court of Canada in the 1988 decision striking down Canada's abortion law; she is specifically addressing the "rights" needs of women, but the concept is generalizable to the expansion of the concepts I am talking about (all underlining mine):

http://www.lexum.umontreal.ca/csc-scc/en/pub/1988/vol1/html/1988scr1_0030.html

As Noreen Burrows, lecturer in European Law at the University of Glasgow, has pointed out in her essay on "International Law and Human Rights: the Case of Women's Rights", in Human Rights: From Rhetoric to Reality (1986), the history of the struggle for human rights from the eighteenth century on has been the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus. The more recent struggle for women's rights has been a struggle to eliminate discrimination, to achieve a place for women in a man's world, to develop a set of legislative reforms in order to place women in the same position as men (pp. 81-82). It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. Thus, women's needs and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman's struggle to assert her dignity and worth as a human being.

Your founders & framers, like rich white guys everywhere and in every time, were not concerned about their ability to have enough to eat, or the ability to participate in their society so as to acquire the means to earn the money to buy it and achieve recognition as persons with dignity and worth. They controlled those means. They had dignity and worth by virtue of their status.

They were concerned about being able to defend themselves and what was theirs against someone (individual or state) trying to harm them or take their stuff. I, and masses of other people in this century, are at least equally concerned about people having at least some minimal degree of security -- equality of opportunity to stay alive, and of access to the means to live and to live in dignity.

And while unregulated firearms possession may serve the first purpose, it simply does not always serve the second. Allowing every kind of firearm to be possessed, kept, handled and carted around by anyone who so chooses, in whatever way s/he chooses, as insurance against the possibility that someone will try to harm him/her or take his/her stuff, simply jeopardizes so many more people's ability to stay alive, and the quality of that life -- the security they need in order to pursue their own goals and aspirations, in the exercise of their own rights -- that limitations on firearms possession are justified.

I don't expect you to share my (and millions of others') views about the nature and content of rights. If you did, I wouldn't necessarily expect you to share my conclusions about the justifiability of any particular limitations on those rights. These are matters about which there will always be differences of opinion, and no one will ever be proved "right", if only because we are *all* starting from a position on the very concept of "rights" for which we have absolutely no basis.

But the mere fact that a bunch of guys got together and wrote something down on paper does NOT mean that they, or what they wrote, has has any more authority in terms of those concepts than anything you or I or anyone else might say. It has authority in terms of the governance of the US, and so the exercise of interpreting it is obviously of considerable concern to citizens of that country.

Because the US uses its second amendment to resist initiatives at the international level, one might say that it is of *some* concern to me, but really all I need to say is that the basis on which the US resists those initiatives is of no concern to me and not likely something that any opinion I (or any other furriner) might have would have the slightest effect on, so all in all, it just is not something that I have any need to pursue any further, even though I might at some point decide to do so (e.g. by reading all the interpretive aids you refer to) as a purely intellectual exercise, should I have the time and inclination.

And my final note to the cheap seats: since y'all must by now understand how infinitely uninterested in your opinions of me I am, you will also understand that any commentary you offer on the subject of me, rather than of what I have said, will be taken by me as just another entry in that circle-jerk activity that seems so popular among some hereabouts who are apparently much more easily entertained and impressed by such commentary than I.

.

[hansberrym]

42. I think if you had said all that a few months ago we would not...

still be discussing it. Maybe I missed an earlier post or 2 of yours but it seems that your interpretation is not very different at all from Laurence Tribe's.


I did think that you interpreted the RKBA as a Collective right, but now I see that you do not.

(quote Iverglas)
The collective right to which I referred in your second amendment is the right to "the security of a free state", the right that was exercised by the people of what became the USofA when they had that revolution -- an element of the right to self-determination, in some situations. (The right to self-determination does not *always* require "the security of a free state".)

Just like the collective right of that people to govern itself, of which the holding of elections is, in some situations, an element. (The right to self-governance does not *always* require the holding of elections.)

The individual right in your second amendment to which I referred is the right "to keep and bear arms". This is what individuals must (allegedly) be able to do in order for the people to exercise its collective right to the security of a free state, since the people must be able to repel invaders, for instance.

I NEVER SAID that the right "to keep and bear arms" is a collective right.

Just like the individual right to vote, in our respective constitutions, is what individuals must (in our minds) be able to do in order for the people to exercise its collective right to govern itself.

YOUR reading of your second amendment apparently disregards the entire first portion, "A well regulated militia, being necessary to the security of a free state,". Talk about violating the canons of interpretation.
(Unquote)


My only real objection is to your last statement. I have posted what I think this phrase means, and have not disregarded its meaning.
In fact the meaning I see in it is not very different form yours.
If you look back you will see that I argued that both phrases must have some meaning, and that my only objection was to those persons who insist that the right or rights recognized are EXCLUSIVELY COLLECTIVE.

Peace

[hansberrym]

45. adding link for previous discussion of the "preamble"

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=6892&mesg_id=8314&page=

[1a2b3c]

18. wow

Thats quite a message. Just one question. Do you really think MrB is charming?

[iowafreed]

19. Assumption alert!

The 2cnd amendment says what is written. Volumes have been written(See above for example) but it still means the same thing .

In order for the lowly masses to retain the most basic fo rights, the ability to arm themselves against a standing army is paramount,in order to protect and assure the right to self governess. That is the purpose of the Bill of Rights. All the English lessons and definitions of words and terms are nothing more than pontificating and navel staring. Regardless of what 'your perfect world' looks like the Bill of Rights stand in your way to that goal. This will always remain as a constitutional republic.

These rights are referred to as natural rights, not to be confused with laws of nature, like gravity, and have nothing to do with a belief in God ( and this is considered intelligent discourse)

[iverglas]

22. "intelligent discourse"?

"These rights are referred to as natural rights, not to be confused with laws of nature, like gravity, and have nothing to do with a belief in God ( and this is considered intelligent discourse)"

I'm still waiting for you to give me the call number for the Big Book of Natural Law so that I can go find it in my library, and see who enacted it. Then we could have some "intelligent discourse", eh? So far, all I'm seeing is silly fairy tales. Or, if you prefer, wild and crazy assumptions.


"In order for the lowly masses to retain the most basic fo rights, the ability to arm themselves against a standing army is paramount,in order to protect and assure the right to self governess."

Sez you. If you can give me an authority for that claim, we'll talk. (If your authority says anything about "self governess", I'm afraid I'll be pretty sceptical.)

Of course, some day you, or any one of your new little friends, could try addressing something I actually said. Mind you, that would involve understanding it ...

.

[Name removed]

31. Deleted message

Message removed by moderator. Click here to review the message board rules.

[iverglas]

38. and why don't you

... direct your suggestion to the person who actually used the expression "intelligent discourse", which I merely quoted in an effort to figure out what-the-discourse s/he was talking about?

.

[RoeBear]

30. "Benchley -- he's a charming fellow."

Yeah, that's just what I was just saying the other day. Where's that charming guy Benchley been?

[slackmaster]

34. Holding the fort in the GUNS IN THE NEWS thread as usual

But since he's got a bunch of us on Ignore he's not as much fun any more. OTOH he hasn't been posting as much verifiable nonsense either.

[RoeBear]

35. And why do you suppose...

...that he has us on ignore?

[slackmaster]

36. In my obviously biased and self-serving opinion

I believe MrBenchley has decided to avoid exchanges that he cannot win by ignoring people who challenge his factual errors and questionable sources. His knowledge of the technical and legal aspects of gun control does not stand up to some of us who have been participating in the debate much longer than he has. He likes participating in the forums and does not want his reactions to individuals he personally does not like, such as myself, to threaten his continued participation in the forums.

Just my personal opinions FWIW.

[iverglas]

37. or maybe you just bore him

One guess is as good as another, eh?

.

[slackmaster]

39. You haven't seen the personal emails he's sent me

One guess is as good as another, eh?

No.

My opinion that he truly does not like me is based on hard evidence. My assessment of writings that I have seen you have not seen is better than your guess.

:evilgrin:

[iverglas]

41. I have no doubt

... that Benchley truly does not like you, especially since you say so. That was not the issue, however. The issue was why he would have you on ignore, and your guess was *not* "because he does not like me". I did read your post, y'know? Your basic assertion was in fact this:

"I believe MrBenchley has decided to avoid exchanges that he cannot win by ignoring people who challenge his factual errors and questionable sources. His knowledge of the technical and legal aspects of gun control does not stand up to some of us who have been participating in the debate much longer than he has."

I found the first sentence, in particular, to be quite baseless and in fact contrary to the evidence I have seen, and I suggest that my guess, that you bore him, is at least as good as that one -- were I to sanitize my characterization of it by calling it a "guess", of course.

.

[slackmaster]

43. My perception differs considerably from yours

I found the first sentence, in particular, to be quite baseless and in fact contrary to the evidence I have seen...

Your inability to see my basis seems understandable given your own relative strengths and weaknesses on gun-related topics. You may not possess enough knowledge of certain subjects like the AW ban, National Firearms Act, other present US and state laws, and the workings of specific firearm mechanisms to evaluate the extent to which I have or have not handed MrB his ass on a platter whenever those topics have come up. My perception is that MrBenchley becomes irritated when people "bother him with the facts" on those and many other issues; that he would rather concentrate on death and destruction and bad apples within the gun industry, the NRA, etc.

Perhaps you are correct about him being bored by hard information, as that is usually what my arguments and opinions are based on. He's into evil and mayhem. You are into semantics and definitions, and offer an occasional refreshing international perspective. I like machines and tools and have spend considerable time and effort familiarizing myself with the maze of laws and political issues that affect my ability to own and use them. I have the impression that neither you nor MrBenchley have ever owned a gun, perhaps never even fired or closely examined one. I speak from my own strengths, as do you and MrBenchley.

It's all a matter of perspective.

[iverglas]

44. ah yes

"Perhaps you are correct about him being bored by hard information"

Everybody does know that I said no such thing, but your urge to portray yourself publicly as someone who puts words in others' mouths is not my problem.

Too bad this sort of thing has to be inserted into the discussion constantly, even in response to an obviously flippant remark that really didn't call for rebuttal (or need to be rewritten so as to be rebutted).

"You are into semantics and definitions"

Actually, no. I might agree that I am "into" meaning, and this would be why I am offended by seeing mine or anyone else's mischaracterized. And of course (and here I am speaking entirely generally) why I find it impossible to converse with anyone who is unable or unwilling to take meaning and address it.

"I have the impression that neither you nor MrBenchley have ever owned a gun, perhaps never even fired or closely examined one."

I have no clue about Benchley, but I've said at least once that I have only once touched a firearm, and that was momentarily when I was selected to be the intermediary through which a handgun was transferred from an individual to the police in a tense situation (the firearm was not an immediate source of the tension). I've also never touched another woman's genitals, but I don't think this disqualifies me from having a defensible position about the equality rights of lesbians -- which, despite my complete lack of first-hand experience with the "workings" of lesbian sexuality, I would defend to the death. This would be because of my interest in (commitment to) equality (and other fundamental) rights. Until I was 35, I didn't own a motor vehicle, but I never felt any urge to call for a prohibition on automobile ownership. Hey, come to think of it, I've never called for a prohibition on firearms ownership ...

.

[demsrule4life]

40. He enjoys talking to himself?

[Township75]

10. Why is a collective right in the Bill of Rights?

The motivation to have a Bill of Rights was to guarantee the rights of individuals, so why would their be a collective right in there?

[MrBenchley]

11. Read and learn....

"More specifically, the Supreme Court and eight United States Courts of Appeals have considered the scope of the Second Amendment and have uniformly rejected arguments that it extends firearms rights to individuals independent of the collective need to ensure a well-regulated militia. See United States v. Miller, 307 U.S. 174 (1939) (the “obvious purpose” of the Second Amendment was to effectuate Congress’s power to “call forth the Militia to execute the Laws of the Union,” not to provide an individual right to bear arms contrary to federal law”); Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942) (“The right to keep and bear arms is not a right conferred upon the people by the federal constitution.”); Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973) (“It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution.”); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Warin, 530 F.2d 103, 106-07 (6th Cir. 1976) (“We conclude that the defendant has no private right to keep and bear arms under the Second Amendment.”); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971) (“There can be no serious claim to any express constitutional right of an individual to possess a firearm.”); Ouilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (“The right to keep and bear handguns is not guaranteed by the second amendment.”); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) (“The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has some relationship to the preservation or efficiency of regulated militia, the Second Amendment does not guarantee the right to possess the weapon.”); United States v. Tomlin, 454 F.2d 176 (9th Cir. 1972); United States v. Swinton, 521 F.2d 1255, 1259 (10th Cir. 1975) (“There is no absolute constitutional right of an individual to possess a firearm.”).

Thus, rather than holding that the Second Amendment protects individual firearms rights, these courts have uniformly held that it precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia."

http://www.vpc.org/studies/ashapb.htm

[DoNotRefill]

13. Hmmmm...yet all of those cases are based...

upon a gross misreading of dicta in Miller....

Can you say "fraud"?

edit: typo

[MrBenchley]

14. No, but I can say "RKBA horseshit"

[1a2b3c]

28. Do you even need to acknowledge fraud

when the link is to the vpc?

[iverglas]

32. use your noggin

The link is to an ARGUMENT (not "evidence", as someone mused).

Since there is no authority for argument, it doesn't really matter who made it. Argument stands and falls on its own merits. Those with functioning noggins analyse arguments and form their own opinions of them.

They may also form opinions of the persons who cite certain arguments based on the source of the arguments. If they wish to defend those opinions, they'll need to discredit, or establish the credit of, the sources. Naming the source doesn't really do either, does it now?

I mean, me, in this case, I see (1) an argument, and (2) a statement of the source of the argument, and think "huh". It's an argument, and that's its source. There ya go. Nothing new learned, nothing to think about ... certainly no demonstration of the "fraud" alleged ...

.

[the_acid_one]

16. Stop the presses!

I really hope you're not quoting the VPC as evidence.

They're about as unbiased as the NRA.

[MrSandman]

17. I took your advice and learned

http://www.hoboes.com/html/Politics/Firearms/miller.html

"No appearance for appellees."


"The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

"In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less that eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that is use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

As I read the Miller decision at your suggestion, I find that it pertains whether the NFA is an usurpation of police powers. If it had been a BAR that Miller was in possession of, it would have been within judicial notice that the weapon is part of "ordinary military equipment."

Miller opinion even states INDIVIDUALS are expected "...to appear bearing arms supplied by themselves and of the kind in common use at the time."

Has anyone claiming Miller is definitive on the Second Amendment's lack of protection to individuals actually read this. Or have you read and hope other's won't Google it(you didn't post a link).

http://www.rkba.org/research/miller/Miller.html

"The decision did not solve any problems; criminals use sawed-off shotguns as readily today as they did fifty years ago. It alluded to, but did not define, the Second Amendment: does "well regulated" mean well governed or well trained? Who constitutes "the militia"? How does "the right of the people" in the Second Amendment differ from the "right of the people" in the First, Fourth, or any other? And if does differ, why? "

"Another consideration regarding the case is that the appellees, Miller and Layton, were not even represented. Miller, in fact, had been murdered before the case was argued. The assault the government made against an individual's right to bear arms went without rebuttal, beyond Gutensohn's poorly written demurrer to the indictment. This will not be the circumstance in the inevitable future decision."

[MrSandman]

20. More RKBA Horses**t

http://www.hoboes.com/html/Politics/Firearms/miller.html

[slackmaster]

21. I can't believe nobody's said it's a dessert topping

And a floor polish!

[Name removed]

27. Deleted message

Message removed by moderator. Click here to review the message board rules.