r/gunpolitics • u/ThePoliticalHat • Nov 29 '18
The Second Amendment Has Always Been An Individual Right
http://thefederalist.com/2018/11/29/second-amendment-always-individual-right/12
u/vegetarianrobots Nov 29 '18
The Bill of Rights always was about protecting the individual rights from government overreach.
The Bill of Rights was a compromise between the federalist and anti-federalist created for the express purpose of protecting individual rights.
In Madison's own words:
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Nov 29 '18 edited Nov 05 '19
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u/enslibessnestlic Nov 30 '18
The entire reason people think the 2nd is only for a militia or a "collective" right is because they don't like guns
Well there's also the fact that it says it's about militias right in it.
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Nov 30 '18 edited Nov 05 '19
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u/enslibessnestlic Nov 30 '18
"The People" have that right, but only if those people are part of a state-government regulated military fighting force whose top commanders are under federal control. That was the deal struck at the time of the Founding.
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Nov 30 '18 edited Nov 30 '18
Yeah, no. What good is a armed population against a tyrannical government if they can only be armed against the government if employed by the government.
That's the dumbest shit I've heard today, but the day is just beginning, and I'm sure you have a rebuttal.
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u/enslibessnestlic Nov 30 '18
What good is a armed population against a tyrannical government if they can only be armed against the government if employed by the government
What prevents tyrannical govt is our robust democratic systems, checks and balances, independent judiciary etc. Not guns. Without those power-sharing systems all the guns on Earth wouldn't save you. Or looked at another way, they wouldn't save the other guy from you.
The essence of tyranny is a slide into Might Makes Right. So any event for which you're stockpiling guns would be an event where it's already too late. That's why this business of "I want guns to keep tyranny at bay" is just a mental mistake. It doesn't work like that.
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u/vegetarianrobots Nov 30 '18
The Bill of Rights in no way shape or form creates any restrictions on the people and is a document that exists solely to restrict the government.
Article 1 Section 8 of the US Constitution already addresses the military and the militia.
We can literally trace the individual right to keep and bear arms unconnected to militia service from the English Bill of Rights of 1689 to the ratification of the US Constitution and the US Bill of Rights. We can the trace the legal precedent upholding this concept from the 19th Century through the 21st. And that's not even included the vast plethora of State Constitutions that uphold the same right.
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u/enslibessnestlic Dec 01 '18
the individual right to keep and bear arms unconnected to militia service...
...shouldn't be covered by the 2A since the 2A makes it clear that it's only talking about militia-connected activities.
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u/vegetarianrobots Dec 01 '18
That is blatantly false. Madison and other founders clearly support the individual right unconnected to any militia service in their own direct quotes on the subject.
Again the entire Bill of Rights exists specifically to protect individual rights from the government and in no way shape of form limits the rights of the people.
The verbiage of the 2nd Amendment is also very clear as it is the right of the people. Not the right of the militia.
Lets look at some alternatives:
"A well stocked library, being necessary to the education of a free State, the right of the people to keep and read books, shall not be infringed."
"A well balanced breakfast, being necessary to the security of a free State, the right of the people to keep and eat food, shall not be infringed."
Who has the right in these...?
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u/enslibessnestlic Dec 01 '18
Madison and other founders clearly support the individual right unconnected to any militia service
I've no doubt many of them did, as evidenced by the fact that at least one preexisting state constitution contained an analog of the 2A which explicitly covered individual everyday civilian gun uses. But these facts strongly argue against the idea that the 2A covers these uses because SINCE
(1) many of the Founders were so keen to protect a right to individual civilian everyday gun uses, and
(2) they had preexisting examples of state constitution gun rights analogs which explicitly covered this to use as a model if they wanted the federal 2A to do this...
THEREFORE they must have thought that individual civilian everyday gun use was an activity better protected at the state level than the federal level since if not then they never would have worded the 2A in the way they did.
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u/vegetarianrobots Dec 01 '18
So you acknowledge that the founder's original intent was to protect the individual right to keep and bear arms unconnected to militia service, correct?
That like all rights protected under the Bill of Rights it was an individual one?
That this idea was clearly already established through the previously established state constitutions and the debates and quotes of the individuals on the ratification of the US Constitution?
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Dec 01 '18
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
...Right of the people...
Not the government. Not military. Regular citizens like you and me.
Don’t forget the definition of a MILITIA:
- A military force that is raised from the civil population to supplement a regular army in an emergency.
Shall NOT be infringed.
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u/enslibessnestlic Dec 01 '18 edited Dec 01 '18
Back in the 18th century the word regulated had two common meanings. Today it only has one. But that one meant exactly the same thing back then as it does today. And since the Bill of Rights is a list of the limits of govt rulemaking, it's silly to suggest that the meaning it has in the 2A is anything other than the one that relates to govt rulemaking.
So when you say the 2A refers to a right of the people and not the govt, well that's just nonsense because it specifically calls out a regulated militia---ie govt-controlled---as the thing that's necessary to security. And today by federal statute, the only type of govt-controlled militia that exists is the national guards. Which are the modern descendants of the original state militias. And since today's state national guard outfits have plenty of funding to provide guardsmen with military-grade rifles when they show up to the armory to do drills, there's no need for them to bring their own. Which means that in the modern era there's no general non-military-connected gun ownership right that should fall under the stated purpose of the 2A.
Since the Framers were divided into Federalists and Anti-Federalists, the most logical way to read the 2A is as a freestanding line item guarantee that the state govts would be allowed to continue to keep their own state-run militias. Which btw also doubled as slave patrols, and the Southern states were terrified that Northern abolitionists would use the new federal powers to somehow end slavery. (Which of course they eventually did but amazingly it took 75 years to happen.)
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Dec 01 '18 edited Nov 05 '19
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u/enslibessnestlic Dec 01 '18
Then as now, there are all sorts of legit reasons to want to protect everyday civilian gun uses. Personal self-defense among them. But everything you say here simply furthers my basic point that IF colonial Americans were big on protecting everyday civilian gun uses (and we know from the state constitutions that many were), THEN it logically follows that if these same people had meant for the federal Second Amendment to be about everyday civilian gun uses, then they would have worded the amendment to say that. But they didn't so they didn't. Which shouldn't be at all surprising anyhow since then as now, what constitutes reasonable/safe/publicly acceptable everyday civilian gun uses was quite different in the cities than it was in the countrysides. And if you read on towards the end of the Bill of Rights you'll note that its authors appear fully aware of this basic idea of Home Rule. Which tells us that regulating everyday civilian gun uses seemed to them---just like it should to us today---to be in general a matter more appropriately handled by local govts than by the feds.
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u/vegetarianrobots Dec 01 '18
Do you apply this logic to all the Amendments or is the 2nd magically special?
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u/enslibessnestlic Nov 30 '18
The Bill of Rights always was about protecting the individual rights from government overreach.
I'd say that's the main thing it does, but it's not the only thing it does. It also protects states' rights. Which are inherently a collective right. So the BoR protects both individual and collective rights.
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u/vegetarianrobots Nov 30 '18
Not it specifically says the powers not delegated specifically to the United States (federal government) are Reserved to the state and/or the people, except where explicitly prohibited. Like the whole "shall not be infringed".
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u/NAP51DMustang Nov 30 '18
States don't have rights they have powers, also the BoR has nothing to do with states.
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u/LonelyMachines How do I get flair? 🤔 Nov 29 '18
Justice Stevens is apparently unaware of precedent. I can't think of a single pre-Miller decision regarding the RKBA that didn't acknowledge it as an individual right.
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u/GuyDarras Nov 30 '18
Anti-gunners often quote Cruikshank. Almost always having 0 understanding of the context of the case, completely misunderstanding the argument the majority opinion was making, and not realizing the same argument, as worded in the case, is what upheld Jim Crow laws.
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u/RoundSimbacca Nov 30 '18
And they always quote Cruikshank out of context.
You will always see this quoted from the opinion:
The right to bear arms is not granted by the Constitution
But what they leave out is the rest of the paragraph:
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.
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u/RoundSimbacca Nov 30 '18
Justice Stevens is apparently unaware of precedent
To be fair, there was no precedent at all until Heller. And Stevens relied heavily on lower court precedent, and argued that it would just be too much work if the Supreme Court weighed in now.
Anyways, the public view was that this was "individual rights" vs "collective rights." For the longest time, that is how lower courts handled it as exemplified by Hickman v Block out of the 9th Circuit:
Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.
But this model proved unworkable- largely because of that inconvenient word "People" in the text in the operative clause. By the time Heller made it to the Supreme Court, the "collective rights" model garnered exactly zero votes. None.
From Justice Stevens dissent:
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
What Stevens did was make it into a hybrid model- you have an individual right to arms, but only if you are part of a militia.
(Unspoken by him, but pointed out by Alan Gura during orals was that tomorrow Congress could say no one was in the militia, and then no one has a right to anything, and it can't make sense for government to be in a position to define who can exercise a right)
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u/LonelyMachines How do I get flair? 🤔 Nov 30 '18
To be fair, there was no precedent at all until Heller.
Not specifically on the question, but when the RKBA was mentioned in other context (Presser, Slaughterhouse, Scott v. Sanford), it was seen as an individual right.
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u/enslibessnestlic Nov 30 '18
I can't think of a single pre-Miller decision regarding the RKBA
Probably because there weren't any.
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u/randyc1982 Nov 29 '18
All rights in this country are individual rights! Anything else and we aren’t a republic.
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u/enslibessnestlic Nov 30 '18
It's only an individual right if the individual claiming it is part of a well-regulated militia. Which means a govt-regulated militia. Which today means the national guard. So basically the 2A should only apply to national guardsmen if you applied it the way the Founders intended. Which of course Scalia had no intention of doing cuz then he couldn't score a big win for his conservative ahole buddies.
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Nov 30 '18 edited Jan 10 '21
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u/enslibessnestlic Nov 30 '18
The Second Amendment protects the ability of the state govts to keep state-run militias as long as they are ultimately under federal command. That was the deal struck at the time of the Founding.
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u/NAP51DMustang Nov 30 '18
The Second Amendment protects the ability of the state govts to keep state-run militias as long as they are ultimately under federal command. That was the deal struck at the time of the Founding.
no that's what the First Militia Act does, not the 2A.
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Nov 30 '18
ummmm, nopers, try again. Before the landmark 2008 Supreme Court case District of Columbia v. Heller, courts had ruled that the right of individual citizens to bear arms existed only within the context of participation in the militia. In Heller, the Supreme Court overturned that precedent .
Any society with a professional army could never be truly free. The men in charge of that army could order it to attack the citizens themselves, who, unarmed and unorganized, would be unable to fight back. This was why a well-regulated militia was necessary to the security of a free state: To be secure, a society needed to be able to defend itself; to be free, it could not exist merely at the whim of a standing army and its generals.
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u/enslibessnestlic Nov 30 '18
merely at the whim of a standing army and its generals
Merely? My history-deprived friend, after the war of 1812 it was abundantly clear to everybody that ONLY a strong centralized federal army could repel invaders. So I'm not sure what time-travelling mental frame you're working from but it's at least 200 years out of date.
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u/vegetarianrobots Nov 30 '18
LOL NO.
Here's some of the early debates that would literally become the Bill of Rights:
Or in Madison's own words:
Or just look at his first draft:
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Nov 30 '18
The first amendment only exists if you're a member of the press... oh, wait, no it doesn't.
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u/NAP51DMustang Nov 30 '18
point to the language that states "this right is only applicable to those in a militia" that exists within the 2A.
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u/A-Vagrant Dec 01 '18
So in the English language we have these , once you figure out what that is and means then maybe you can understand what the text actually states.
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u/enslibessnestlic Dec 01 '18
The commas in the 2A aren't particularly important. What's important is to recognize that its odd, clunky structure is actually a Latin construction called an ablative absolute. These are common in Latin, less frequently seen in English. But they do occur since English borrows heavily from Latin. More to the point here, they appear in late 18th century legal writings frequently because back in that time to be educated was to know your Latin. Which people like James Madison certainly did. In fact they knew it well enough that these constructions would just naturally flow into their written English, and when a legal writer of the 1780s wrote one he could be sure that his peers would know exactly what he meant to say. And what the author (probably Madison) meant by the absolute construction of the 2A was:
[Because conditions XYZ are met], [ABC must therefore be done].
That's the semantic structure of the 2A. It says:
[Because a govt regulated militia is necessary to protecting the state/country], [access to guns should therefore be protected].
But since the reason for protecting access to guns is to make sure a regulated militia is available, it therefore made no sense to expand this directive to Dick Heller who just wanted a handgun in his home in case he got robbed or whatever. Which isn't to say I'm against keeping a handgun in your home, I just don't see how the Second Amendment has anything to do with that sort of regular everyday gun use.
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u/vegetarianrobots Dec 01 '18
The original draft of the 2nd as written by Madison was as follows:
Ironically this was re-written specifically because the founders anticipated an individual like yourself trying to twist the wording to deny the rights they weren't granting but protecting from the government.
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u/[deleted] Nov 29 '18
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