For those who say our forefathers's intent on the right to bear arms has been misconstrued

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For those who say our forefathers's intent on the right to bear arms has been misconstrued:

1) "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one which it was passed." - Thomas Jefferson.

2) "A free people ought ... to be armed ..." - George Washington.

3) "The best we can hope for concerning the people at large is that they be properly armed." - Alexander Hamilton.

4) " ... the people have the right to keep and bear arms." - Patrick Henry.

5) "The great object is that every man be armed. Everyone who is able might have a gun." - Patrick Henry.

6) "To disarm the people (is) the best and most effectual way to enslave them." - George Mason.

7) "The people are not to be disarmed of their weapons. They are to be left in full possession of them." - Zachariah Johnson.

8) "Arms in the hands of citizens (may) be used at individual discretion ... in private self-defense." - John Adams.

9) "And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms ..." - Philadelphia Independent Gazetteer, Aug. 20, 1789.

-- Frank Flintlock (@ .), May 22, 2000

Answers

Actually, I don't really recall anyone saying that "our forefathers's intent on the right to bear arms has been misconstrued." For good or bad, they loved their guns and that's a fact. The current legal question is whether we can, 200 plus years later, change our collective minds through legislation as opposed to a Constitutional amendment.

The currently open legal question is whether the Second Amendment prohibits the Federal Government from regulating individual ownership of guns, or whether it merely prevents the Feds from preventing the States from arming themselves through militias. This, right now, is an irrelevent question, as the Feds do not seem to be in to banning guns generally.

Now -- take the legal "know your gun rights test." Why is anyone who thinks the Constitution prevents the STATES from banning (or not banning) guns an obvious gun nut? Hint -- read the Constitution, and not the BS that floats around the Internet.

Extra Credit -- if indeed there are any Constitutional restrictions on STATE action against gun owners, where are they found? In other words, why might the Second Amendment apply to the States and not just to the Feds.

-- E.H. Porter (Just Wondering@About.it), May 22, 2000.


EH:

It would be fun to discuss this with open minded people; but I have to leave again [my two days at home]. It is clear what the writers of the Constitution meant by the second amendment [at least the ones that wrote about it]. Yet the Constitution is not a static document. It is general, and its meaning is a matter of later court interpretations. It will be interesting to find out what those have been.

Best wishes,,,,

-- Z1X4Y7 (Z1X4Y7@aol.com), May 22, 2000.


E.H.,

I think it all depends on the definition of "militia". In 1789, there was no standing army, just a small core of professional officers. There was also no arms industry that could be expected to supply large amounts of weapons in a short period of time. The expectation was, in time of war, that the states would be called upon to furnish men, already armed, to fight as part of a national army but only for the duration of the war. After the crisis, the men reverted back to being simply citizens again.

Each state had their own militia and, as I understand it, there was no way to make a state provide troops to the federal government. I think the Whiskey Rebellion had something to do with changing this. I would think that a state government wouldn't have been allowed to regulate the right to keep and bear arms because that would have a direct effect on the amount of men ready for war.

The Second Amendment was written for how things were a long time ago. Although I support the right to gun ownership, I think the Second Amendment is a pretty weak leg to stand on if you're saying that there should be no gun laws at all.

-- Jim Cooke (JJCooke@yahoo.com), May 22, 2000.


Jim:

You might be correct, but there is a world of court decisions on the matter. As I recall, many had to do with restricting the rights of unions to be armed. Too bad that we are both gone and can't look these things up and discuss them.

Best wishes,,,,,

-- Z1X4Y7 (Z1X4Y7@aol.com), May 22, 2000.


Z -- in the 1700's, what the Constitution was really about was balancing Federal and State power. That dispute was, to a great extent, settled by the Civil War, which resulted in the passage of Amendments 13 -15.

Your posts here seem to be intelligent and reasonably well thought out. But, I repeat again what I've said here many times before. READ the Constitution before you BS about it. Particularly on the Internet, there's a lot of drivel about "constitutional rights," none of which seems to relate to the actual Constitution. After all, the Constitution was written by hand, is short, and is easy to understand. Even after practicing law for 18 years, I still find that I can get a lot of insite by reading the original documents.

-- E.H. Porter (Just Wondering@About.it), May 22, 2000.



Jim Cooke -- Actually, there are two legal issues on gun ownership that remain unsettled:

(1) The original Bill of Rights applied only to Federal action, not state laws. Some of those rights are considered to have been "federalized" by Amendment 14. Read Amendments 2 and 14; this is the stuff law school exams are made from. But, the far and away majority opinion is that if that States want to take your guns, they can constitutionally do so.

(2) The real Constitutional question is -- what can the Federal Government do regarding individual ownership of firearms. This remains unsettled in the law. And, indeed, the balance between Federal and State power has recently become a hot topic in Constitutional Law generally.

So again, I say to you as I say to everyone -- read the damned Constitution before you BS about it. Everyone thinks they know what the Constitution says; few actually do.

-- E.H. Porter (Just Wondering@About.it), May 23, 2000.


E.H.,

I *have* read the Constitution (as have many others here).

(1) The original Bill of Rights applied only to Federal action, not state laws. Some of those rights are considered to have been "federalized" by Amendment 14. Read Amendments 2 and 14; this is the stuff law school exams are made from.

Using that logic the States could, for example, require that you obtain a license to attend church. Or purchase a book. Or allow State police to search your home without a warrent. Guess what? The States CANNOT do that. Constitutional Rights designated as belonging to 'the people' always supercede any and all state laws.

In case you've forgotten what the Second Amendment says:

Amendment II

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.

But, the far and away majority opinion is that if that States want to take your guns, they can constitutionally do so.

Whose opinion are you talking about? And since when does any opinion other than the Supreme Court's determine what is and isn't Constitutional?

(2) The real Constitutional question is -- what can the Federal Government do regarding individual ownership of firearms. This remains unsettled in the law. And, indeed, the balance between Federal and State power has recently become a hot topic in Constitutional Law generally.

That question remains to be answered by the SCOTUS but from comments made in prior cases it would seem that they are indeed leaning to the PLAIN READING of the language; that is, that ownership of arms is an INDIVIDUAL right, not subject to revocation by the State or ANYONE else.

-TECH32-

-- TECH32 (TECH32@NOMAIL.CON), May 23, 2000.


E.H.:

My response about the states not being able to regulate arms was strictly in relation to the original idea of state militias. Obviously, once the defense of the country was no longer wedded to state militias, a lot of case law ruled that the state had a right to regulate gun ownership.

You have stated the real problem though - why doesn't the Supreme Court rule on the meaning of the Second Amendment when it comes to an individual's right to own firearms? For that matter, why doesn't the NRA start a constitutional amendment drive to define this is a new amendment? Until the Supreme Court comes out with some defining judgement like Roe v Wade for abortion, this arguement and the plethora of state laws will just continue.

-- Jim Cooke (JJCooke@yahoo.com), May 23, 2000.


TECH32 -- before the 14th Amendment, the Federal Government could not interfere if States decided to do things like search your home without a warrant. Most state constitutions are patterned after the U.S. Constitution and contain similar protections. Prior to Amendment 14, however, each State constitution was the final protection for the citizens of that state from their own state government, and each state supreme court the final arbirtator of how that document was interpreted.

This is not an "argument" it is historical fact. The famous First Amendment, for example, only provides that "Congress shall make no law . . ." State could, if they wished, do things like abridge free speach, subject only to the limitations of their own constitutions. It is Section 1 of Amendment 14 that first provided a Federal Limitation on State Power; it provides "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

From a Second Amendment perspective, the question is whether gun ownership is one of the "privileges or immunities of citizens" which is brought into the sphere of Federal protection by the 14th Amendment. As Jim Cooke suggests, a lot of people would like to see the Supreme Court decide this. But, so far, it has not (probably because no State has yet imposed something like a complete ban on gun ownership)

-- E.H. Porter (Just Wondering@About.it), May 23, 2000.


EH - Is this someone ? "On the floor of the United States Senate today, May 17th, 2000, at approximately noon, California Senator Dianne Feinstein said: "The second amendment doesn't guarantee ordinary citizens the right to own and bear arms. It only guarantees that the National Guard can own and bear arms."

"What good does it do to ban some guns. All guns should be banned." Sen. Howard Metzanbaum

"Our task of creating a SOCIALIST AMERICA can only succeed when those who would resist us have been totally disarmed." Sara Brady, Chairman, Handgun

Then again-

"In 1856, the U.S. Supreme Court (South v. Maryland) found that law enforcement officers had no duty to protect any individual. Their duty is to enforce the law in general. "

COULD IT BE THAT JUST MAYBE THEY BELIEVED THEY RIGHT TO BEAR ARMS - MENT THAT IT WAS THE "PEOPLES" DUTY TO PROTECT YOURSELF BECAUSE THE POLICE HAD NO DUTY ?

THEN AGAIN -

"When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans. And so a lot of people say there's too much personal freedom. When personal freedom's being abused, you have to move to limit it. That's what we did in the announcement I made last weekend on the public housing projects, about how we're going to have weapon sweeps and more things like that to try to make people safer in their communities." - President William Jefferson Clinton - March 22,1994

WHERE IS THIS MANS OATH OF OFFICE TO UPHOLD THE CONSTITUTION OF THE REPUBLIC OFTHE UNITED STATES OF AMERICA ?

THEN AGAIN -

"It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error."- U.S. Supreme Court -339 U.S. 382, 447

I THINK ONE OF THE BIGGEST PROBLEMS IN THIS COUNTRY IS THAT EVERYONE WANTS TO INTERRET THE THOUGHTS AND WORDS OF THE FOUNDING FATHERS WITHOUT READING THEIR NOTES. THEY SPENT ALONG TIME TO TRY TO KEY THE "PEOPLE" IN CONTROL & THE GOVERNMENTS (STATE & FEDERAL) UNDER CONTROL.

"The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are constitutional rights secure." Albert Einstein

"Freedom is never more than one generation away from extinction." Ronald Reagan

Maybe some others should READ more of the "CRAP" on the net to better informed.

Go post FRANK

-- awdragon (awdragon@yahoo.com), May 23, 2000.



E.H.,

From a Second Amendment perspective, the question is whether gun ownership is one of the "privileges or immunities of citizens" which is brought into the sphere of Federal protection by the 14th Amendment. As Jim Cooke suggests, a lot of people would like to see the Supreme Court decide this. But, so far, it has not (probably because no State has yet imposed something like a complete ban on gun ownership)

Since it's a right designated to 'the people' the Supreme Court would HAVE to view ANY restriction of said right the same way it views restrictions on other rights designated to 'the people'. No outright gun ban need exist for an infringement to occur just as no outright ban on free speech need occur for the Supreme Court to rule that a law constitutes a breach of that right.

Just look at the Telecommunication Decency Act that was struck down. It dealt with very specific subject matter yet they found such a law would have a 'chilling effect' on speech and rightfully voided it. What do you think the Supreme Court rulings would be on the current cacophony of both state and federal gun laws if they viewed it with the same eye regarding their 'chilling effect' on an individuals right to 'keep and bear arms'?

Here in NJ I have to be fingerprinted first to get a Firearms ID Card, and then again each and every time I wish to purchase a handgun. Additionally, for each handgun I purchase, I must get 2 people who are not related to swear under penalty of perjury that I am 'a person of good character', not a drunkard or a wife beater or a criminal. Everytime I want to get rid of a gun I'm tired of and buy a new one I must go through this process. Think laws that require a person to be licensed and fingerprinted to exercise an individual right don't have a chilling effect? Do you think such laws would be upheld by the Supreme Court?

I recently read a quote from Justice Scalia who said "We regularly find laws Unconstitutional if we think the Founding Fathers would have been offended by them.". Now, reconcile that statement with the statements made by the very same Founding Fathers that started this thread and tell me how you think they're going to rule...

-TECH32-

-- TECH32 (TECH32@NOMAIL.CON), May 23, 2000.


Hey, guys -- I don't have an opinion one way or the other on this subject. I'm just telling you what the current state of the law is. If you don't want to listen, fine.

Where I to make a guess as to the future progress of the law -- I'd guess that the Supreme Court will not grant Certiorari on any gun cases in the near future (appeal to the Supreme Court is not "of right"; you've got to ask permission first, and the fact that lower courts were wrong is not grounds to get your final appeal heard). So far, they have avoided gun cases.

And, if they ever do decide, I'd bet they'd defer to the States on this one. In other words, my guess is that the Supreme Court will not ever try to second guess state laws on gun regulation, but will leave that determination to the relevant state supreme court.

And, yes, Awdragon -- most of what you read about the law on the internet is indeed crap. The gun nuts are not as bad as the tax nuts, but they're close. The problem is confusing what you think the law should be with what the law is. Fingerprinting gun buyers in New Jersey may (or may not) be a bad idea. If it is a bad idea, New Jersey voters should make their voices heard and get the law repealed. But, clearly, it is not unconstitutional.

Nor, to be clear on this, are persons who believe in the right to own firearms necessarily "gun nuts." I don't like to pay taxes, and think they are too high; this does not make me a "tax nut." But, when I argue about taxes, I argue that they are high, unfair and wrong. The tax nuts, on the other hand, argue that the law does not require them to pay taxes. Gun nuts are the same way, and indeed that is my definition of a gun nut--one who ignores the law and argues that States CAN'T do it, rather than arguing why they SHOULDN'T DO IT.

-- E.H. Porter (Just Wondering@About.it), May 23, 2000.


EH:

So again, I say to you as I say to everyone -- read the damned Constitution before you BS about it. Everyone thinks they know what the Constitution says; few actually do.

I have; also the fed and anti-fed letters. My point was to agree with you; but to point out that interpretation at later dates is also important. I am not sure what all of those are. Fill us in.

Best wishes,,,,,

Z

I have; My point was to agree with

-- Z1X4Y7 (Z1X4Y7@aol.com), May 23, 2000.


Z --good for you. I must admit that I have not read the Federalist Papers and other Constitutional arguments of the times. Guess I'm just interested in what the law is, rather than where it came from. Interestingly (or perhaps not) the Second Amendment has recieved less Supreme Court scrutiny than any of the original ten in the Bill of Rights -- with perhaps the exception of Amendment 10

-- E.H. Porter (Just Wondering@About.it), May 23, 2000.

E.H.

You really should at least read the Federalist Papers. Really tells you what they were trying to accomplish when they created this great Republic.

As far as gun laws goes I believe there should be some (no right is absolute) but nothing close to what we have today. Let's not forget that the original intent of the Second Amendment was that the Citizens themselves be able to remain a collective deterence to tyranny. That they be armed as soldiers because they might one day have to fight soldiers.

In that spirit, I'd like to see:

a) A Safety Courses at least once every 3 years. Pass this course and you can own/carry a gun anywhere. Fail this course (or fail to take it) and you don't get to purchase/carry any gun. You would NOT recieve a 'license' from some government agency, but rather presentation of a card issued by the training authority would suffice as 'proof' that you are allowed to own/carry.

b) If our children or grandchildren are ever forced to take up arms then I want them armed at least as well as a common soldier. Yes, that means private ownership of fully automatic weapons.

c) Government owned/operated firing ranges (similar to National Parks). They can promote safe firearms ownership/use and provide training for those who want it. No one would ever be required to 'sign in' or register a gun. Just show up and get in line.

d) Teach children about firearms in school and educate them about the safe useage/ownership of them. Give them a safe place, such as an indoor range at school, to pratice and encourage them to compete.

Sounds pretty darn radical huh? Well guess what? Aside from the mandatory safety courses that's pretty much how America was up until the late 1950s, a time when gun violence was a *fraction* of what it is today.

Citizens were allowed to own fully automatic weapons, many brought back in dufflebags from WWI, WWII and Korea. Citizens were (in most states) allowed to carry concealed. Schools had ROTC courses where they taught safe firearms usage and quite a few schools even had rifle ranges in the basement where students could bring their own guns from home to practice with after school. Many students brought guns to school so they could go hunting after classes let out. No one gave those rifles in the closet a second look.

The NRA was the friend of the governement and they frequently set the rules for matches held on federally owned and operated rifle and hundgun ranges throughout the country. These ranges were open to the public and anyone could go down and ask the range officer for help.

Back then we really understood what 'a well regulated militia' meant. It means Citizens who are well armed, well trained and capable of remaining a collective deterrence to government tyranny now and forever more.

-TECH32-

-- TECH32 (TECH32@NOMAIL.CON), May 24, 2000.



E.H.,

You say that the N.J. fingerprinting law is clearly not unconstitutional. With all due respect to your status as an attorney, I think that you're wrong. Until the Supreme Court rules on its Constitutionality, how can you be so sure that it is, in fact, not in violation of the Constitution?

You can't.

If you are going to state an opinion, it should be phrased as such, not as if it were a fact.

-- J (Y2J@home.comm), May 24, 2000.

J:

Folks that interpret the constitution to mean an individual's right to bear arms have said that the constitution CLEARLY states this, yet the Supreme Court hasn't engaged in the interpretive effort. I suspect that even IF the Supreme Court were to decide that this was NOT the intent, the debate would continue. The Supreme Court already decided via Roe vs. Wade that abortions were within the constitutional rights of Americans, yet you still don't agree. If E.H. is stating opinion versus fact, I might point out he's certainly not the only one so doing.

-- Anita (Anita_S3@hotmail.com), May 24, 2000.


And, of course, J . . . a state law is presumed Constitutional until and unless a court says it is not. It doesn't work the other way around.

-- E.H. Porter (Just Wondering@About.it), May 24, 2000.

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