Is The Second Amendment "A Myth"

[BRILEY]

I was doing a little research and came across this article, it's titled "The Second Amendment Myth" so I was naturally drawn to this article.

I personally think it's important that we never forget that there are people (some being politicians) that would love nothing more than to see our 2nd Amendment rights completely abolished, which is why we can never stop fighting to protect our rights!

I'm curious to know what you guys think about this article, aside from the fact that English does not appear to be this persons first language, either that or he/she is a fu****g IDIOT!

Here it is, thoughts???

The Second Amendment Myth

 

[BehindBlueI's]

Well, a few things. One is that the US Constitution only applied to Federal law at its inception. SCOTUS ruled unanimously in Barron V Baltimore (1833) that it did not bind states in any way: "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them."

Then you get the Reconstruction Amendements. In 1865 the 13th amendment says "shall exist within the United States, or any place subject to their jurisdiction", the first clear reference to limiting state's powers via the US Constitution. In 1868 the 14th amendment was introduced and goes even further, saying "No State shall..." Compare this to the 1st amendment which says "Congress shall..." which clearly means only the Federal Congress, as SCOTUS stated in Barron.

Not until the 1920s did any significant amount of the Bill of Rights start being applied to states via "incorporation", although the 14th amendment is cited as the authority to do so. In a clear case of judicial activism, in 1925 SCOTUS applied the 1st amendment to the states in Gitlow v New York.

I don't think pre-Heller the 2nd amendment had been "incorporated" and applied to states. In fact SCOTUS had previously specifically stated the 2nd (along with the 1st) only applied to the Federal government in US v Cruikchank, stating "The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government..."

Given that, it would seem likely the original intent was designed to keep the federal government from disarming the states and the states' ability to form militias to keep the new federal government in check. The states were free to disarm their populations unless restricted by their own state constitutions.

Times and culture changes over time, and the application of the Constitution has as well. Despite the constant cry of tyranny you see on this board, rights have significantly expanded since the original applications of the Constitution. Look who was eligible to vote in 1813 compared to 2013. Do you think "conscentual encounter" vs "detained" was an argument back then? Miranda certainly wasn't a thing, no one had the duty to proactively explain your rights to you. I'm sure several folks here are old enough to remember when there was no LTCH in Indiana. 1983, wasn't it? My grandfather remembered when you had to register a pistol with the Sheriff when you bought it.

Given that understanding, original intent is not nearly as important as modern application. The idea of Kentucky raising a militia and marching on DC is pretty ludicrous, but the idea of a Kentuckian defending his life or home with a commonly available weapon is not, hence Heller.

 

[Kutnupe14]

^^^ BBI is spot on what he is talking about is referred to as the "Incorporation" of the BoRs. Which, basically acknowledged, at the inception of the Constitution, the States could do pretty much whatever they wanted save the specific powers granted to the federal govt.

 

[danielson]

WOW, BBI, most of that went right over my HS educated head, I will go over it a few times till it sinks in..

But till then, I wanted to say, reading the quote on that site:
"to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

That makes me think the second amendments first part (A well regulated Militia, being necessary to the security of a free State) is telling each state to have what is basically the national guard.

But that leaves the second part (the right of the people to keep and bear Arms, shall not be infringed.) Now that, to me seems separate, as if its stating, no mater what, all Americans have the right to keep and bear arms. I dont think they meant a state to have the power to take that away, nor the fed.. I think they felt it was a god given right, that trumped government, and no one could take it away.

 

[kludge]

I believe, and the Constitution itself states, that it is the "supreme law of the land". By ratifying it or petitioning for stathoon de facto binds the states to the Constitution as being the supreme law and all of its statutes thereby are binding upon the states. When you read the quote in post #2 you have to remember that at the time many court decisions were being made racist justices. And we've been trying to shake our selves from the decisions ever since.

 

[PaxRomana]

This is interesting....Clearly states have more latitude in regulating various civil laws than do the feds (depending on what we are talking about) What I am not clear on is how a state could completely nullify an amendment to the constitution of the US within its borders as long as it isn't prohibited by the state constitution. Theoretically, if other fundamental amendments like the 1st and 5th were not spelled out in a state constitution, they could regulate those as well? I need to do some reading but as another said before me, isn't there some inherent binding to the US constitution as part of joining the Union?

 

[lizerdking]

Article Six of the United States Constitution - Wikipedia, the free encyclopedia

States are bound by the supreme law of the land.

 

[PaxRomana]

"Even state constitutions are subordinate to federal law."

Thanks...I thought as much but I'm a little rusty on my clauses..

 

[Bunnykid68]

I didnt even read what Blue said and from the other post I can at least mostly agree. The DailyKOS cherry picked bits and pieces and wrote a story. I stopped reading when they went from the Miller case to the Heller case, not that I thought it had any credibility before that

 

[Kutnupe14]

I believe, and the Constitution itself states, that it is the "supreme law of the land". By ratifying it or petitioning for stathoon de facto binds the states to the Constitution as being the supreme law and all of its statutes thereby are binding upon the states. When you read the quote in post #2 you have to remember that at the time many court decisions were being made racist justices. And we've been trying to shake our selves from the decisions ever since.

It does appear in the Constitution (Supremacy Clause). I understand you thinking, but it appears that the founders believed differently. The Supremacy Clause, per Alexander Hamilton, was only binding against the states, if it conflicted with Constitutionally granted powers. Granted powers being the key word... which is not the same as denied or limited powers, which the BoRs are.

He stated this:
But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

Now, this was up to debate, clearly, but due to the confusion the matter was settled once and for all with the 14th Amendment.

 

[Kutnupe14]

This is interesting....Clearly states have more latitude in regulating various civil laws than do the feds (depending on what we are talking about) What I am not clear on is how a state could completely nullify an amendment to the constitution of the US within its borders as long as it isn't prohibited by the state constitution. Theoretically, if other fundamental amendments like the 1st and 5th were not spelled out in a state constitution, they could regulate those as well? I need to do some reading but as another said before me, isn't there some inherent binding to the US constitution as part of joining the Union?

Yes, and that's exactly how our govt worked until the second half of the 19th century.

 

[Kirk Freeman]

One is that the US Constitution only applied to Federal law at its inception.

State Supreme Courts were applying the Second Amendment to the states in antebellum decisions.

Commentators were doing the same at the time of the adoption of the Bill of Rights.

 

[Kutnupe14]

State Supreme Courts were applying the Second Amendment to the states in antebellum decisions.

Commentators were doing the same at the time of the adoption of the Bill of Rights.

They were indeed, but many other of those courts "weren't" applying the BoRs to the states.

It's a pretty fair argument to to say that unless explicitly stated, the Constitution did not limit state power.
Justice Marshall, in the Barron case held that view, and gave a specific example from Articles 1:9 and 1:10.

Article 1 Sec 9 prohibits ex post facto laws, stating.
No Bill of Attainder or ex post facto Law shall be passed.

Now if we hold to the logic that the Constitution also applied to the states, then Sec 9, standing alone, should sufficient. However, the very next section Article 1 Sec 10 states:

No state shall.... pass... any ex post facto law.

Clearly, Article 1:9 doesn't restrict the States while Article 1:10 does, but only because it specific in it's limitation. I know you of all people understand the implications this would hold for the BoRs.

 

[BRILEY]

Well, a few things. One is that the US Constitution only applied to Federal law at its inception. SCOTUS ruled unanimously in Barron V Baltimore (1833) that it did not bind states in any way: "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them."

Then you get the Reconstruction Amendements. In 1865 the 13th amendment says "shall exist within the United States, or any place subject to their jurisdiction", the first clear reference to limiting state's powers via the US Constitution. In 1868 the 14th amendment was introduced and goes even further, saying "No State shall..." Compare this to the 1st amendment which says "Congress shall..." which clearly means only the Federal Congress, as SCOTUS stated in Barron.

Not until the 1920s did any significant amount of the Bill of Rights start being applied to states via "incorporation", although the 14th amendment is cited as the authority to do so. In a clear case of judicial activism, in 1925 SCOTUS applied the 1st amendment to the states in Gitlow v New York.

I don't think pre-Heller the 2nd amendment had been "incorporated" and applied to states. In fact SCOTUS had previously specifically stated the 2nd (along with the 1st) only applied to the Federal government in US v Cruikchank, stating "The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government..."

Given that, it would seem likely the original intent was designed to keep the federal government from disarming the states and the states' ability to form militias to keep the new federal government in check. The states were free to disarm their populations unless restricted by their own state constitutions.

Times and culture changes over time, and the application of the Constitution has as well. Despite the constant cry of tyranny you see on this board, rights have significantly expanded since the original applications of the Constitution. Look who was eligible to vote in 1813 compared to 2013. Do you think "conscentual encounter" vs "detained" was an argument back then? Miranda certainly wasn't a thing, no one had the duty to proactively explain your rights to you. I'm sure several folks here are old enough to remember when there was no LTCH in Indiana. 1983, wasn't it? My grandfather remembered when you had to register a pistol with the Sheriff when you bought it.

Given that understanding, original intent is not nearly as important as modern application. The idea of Kentucky raising a militia and marching on DC is pretty ludicrous, but the idea of a Kentuckian defending his life or home with a commonly available weapon is not, hence Heller.

WOW, I'm impressed, just another reason I love being apart of INGO, a wealth of knowledge!

Maybe some of you with a bit more knowledge could guide me in the right direction, I watched a video on Military Arms Channel (YouTube) late last year (can't seem to find the video now), where he had stated that, if I remember correctly; James Madison had spelled out the meaning behind the Second Amendment in one part of the Federalist Papers...?

Something along the lines of the people being equally armed to that of the Government? Sound familiar, any guidance would be greatly appreciated!!

And again, you guys ROCK

 

[kludge]

Yes, and that's exactly how our govt worked until the second half of the 19th century.

And then the SCOTUS immediately proceeded to gut the 14th in Slaughter House.

 

[poptab]

I am becoming ever more cynical. We have all these supposed 'rights' yet have you tried exercising your 'right' to trial by jury lately? Let me know how that went.

Same goes for all these other 'rights'.

You dont need a formal conspiracy when interests converge.

 

[Kirk Freeman]

They were indeed, but many other of those courts "weren't" applying the BoRs to the states

The fact that States were applying the Second to the States and not other provisions of the Bill of Rights shows the specialness of the Second Amendment.

 

[BehindBlueI's]

James Madison had spelled out the meaning behind the Second Amendment in one part of the Federalist Papers...?

I don't know, and my History of the 2nd Amendment book is one of the ones my ex-wife decided I didn't need while I was overseas. Remember what the Federalist, and what's loosely called the Anti-Federalist papers were, though. Essentially the PACs of the day, they are campaign material designed to sway hearts and minds for adopting or rejected the proposed Constitution. They are campaign material, not legal documents.

 

[BehindBlueI's]

The fact that States were applying the Second to the States and not other provisions of the Bill of Rights shows the specialness of the Second Amendment.

I'm not understanding what you are saying. Do you mean that states were having a version of the 2nd in their own constitutions?

 

[johnny45]

I was doing a little research and came across this article, it's titled "The Second Amendment Myth" so I was naturally drawn to this article.

I personally think it's important that we never forget that there are people (some being politicians) that would love nothing more than to see our 2nd Amendment rights completely abolished, which is why we can never stop fighting to protect our rights!

I'm curious to know what you guys think about this article, aside from the fact that English does not appear to be this persons first language, either that or he/she is a fu****g IDIOT!

Here it is, thoughts???

The Second Amendment Myth

Is the Second Amendment a myth?

I suppose it depends on where one believes his rights come from.

Are his rights what the government says they are?

Or, are his rights endowed by his Creator?