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2nd amendment rights.

Are restrictions on the purchase/sale of firearms constitutional?

  • Total voters
    61
Guy Incognito said:
Exactly, this is not my own theory but based on the analysis of some prominent historians and legal scholars.

As to the question of what "keep and bear" means, I myself used to think just the way you did. But you cannot read modern definitions into it; it is actually a legal term of art with a precise meaning:
Historian Mark Tushnet said:
When used separately in the eighteenth century, 'keep' and 'bear' had their ordinary meanings -you could keep a weapon in your house, and then you'd bear it outside. When used together, though, the meaning is more restricted. The evidence is overwhelming that 'keep and bear' was a technical phrase whose terms traveled together, like 'cease and desist' or 'hue and cry.' 'Keep and bear' referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.
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Assuming that this historian is correct, I see two possibilities here:

  • That the writers of the 2nd Amendment used the “technical phrase” “keep and bear” intentionally, with the purpose of directly connecting the possession and use of arms to militia service.
  • That the writers of the 2nd Amendment inadvertently used the phrase “keep and bear”, and that they intended their meaning to be the “used separately” version your quote mentions…

Additionally, I don’t think it matters which – in either case, I see nothing that precludes an individual right to bear arms.

Unless there are specific connotation to that “term of art” phrase “keep and bear” that do so.

Do you have an accurate historical definition of this “term of art” phrase that you could provide?

Additionally, I note that the historian does not refer to the phrase as a “term of art” (as in, specific meaning in specific context, if my understanding is correct), but rather as a “technical phrase”. Are the definitions of the two definitions identical (aside from the actual name)?

Guy Incognito said:
As to the question of whether the original intent was to create an individual right or a right tied to the militia, Judge Posner, one of the most respected conservative judges of our time, has this to say:
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Problem is, he makes little sense, at least in the context of the quote you provided.
First, there’s this bit:
Judge Richard Posner said:
The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.
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This appears to me as an unsupported opinion, and further, one that I disagree with.

It cites no evidence whatsoever.

Then there’s the second part:
Judge Richard Posner said:
It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
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This part is just gibberish, not to mention dumb.

His analysis of the tactical/strategic situation is flawed.

Far better would be for each individual militia member to have a personal weapon they keep at home, and for additional weapons to be stored in a central location, if available.

But if the numbers of weapons are limited, the personal weapons kept at home are a far better option.

In the event of a surprise attack, such as a raiding party of some sort, militia members would have their weapons at hand, rather than having to commute to a central location to acquire them. Further, militia members who lived near each other would thus have defenses ready at hand if said surprise attack was in their area.

In situations I can imagine where a central storage location would help, the militia members would be highly likely (assuming they had any kind of intelligence system whatsoever) to have been warned of the impending attack ahead of time, thus allowing them to assemble in a central location themselves.
 
Guy, your capacity to completely and resolutely ignore what the Founders said about the 2A and the right of the people to arms, in favor of this Judge Posner instead of George Washington, Thomas Jefferson, Samuel Adams, George Mason, and others who were involving in writing the amendment and forming the early government, is..... well, let's just say, quite remarkable.
 
The Mark said:
His analysis of the tactical/strategic situation is flawed.
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It also shows his gross misunderstanding of what a militia IS. The militia is about the people in it, not the weapons. No militia commander would ever seek to "collect weapons," he would muster the MEN who HAVE the weapons. THAT is the militia, not their weapons. There would neve be a shortage of weapons because each man IN the militia BRINGS HIS OWN.

This goes back to the Anglo-Saxon fyrds, for crying out loud. That's the whole point.

And such is the whole thing about "the security of a FREE state." The citizen-soldier. The bulwark against tyranny because such men would not turn their own arms against themselves, their families, their homes, their neighbors. Holding all the weapons in common would make this impossible.

Posner is either woefully ignorant of this, or it's simply egregious lying.
 
Harshaw said:
I cannot even begin to tell you how stupid this argument is. Anyone who took 5th grade English would be able to tell you why.
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There is no AND after state, only a comma, and a comma simply means a pause in a paragraph, proving that you flunked your 5th grad exam.

Here, read it again. Change the comma to AND, and you'll see what I mean.

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.

Of course the right for people to bear arms means nothing to me as a practice, the trend is already in place, can't be stopped, and compared with all the other deaths, the ratio of murders with guns isn't all that imposing, but I do try to follow the punctuation rules.


Richard
 
Harshaw said:
It also shows his gross misunderstanding of what a militia IS. The militia is about the people in it, not the weapons. No militia commander would ever seek to "collect weapons," he would muster the MEN who HAVE the weapons. THAT is the militia, not their weapons. There would never be a shortage of weapons because each man IN the militia BRINGS HIS OWN.

This goes back to the Anglo-Saxon fyrds, for crying out loud. That's the whole point.

And such is the whole thing about "the security of a FREE state." The citizen-soldier. The bulwark against tyranny because such men would not turn their own arms against themselves, their families, their homes, their neighbors. Holding all the weapons in common would make this impossible.

Posner is either woefully ignorant of this, or it's simply egregious lying.
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I was actually leaning towards intentional misinterpretation.
 
The Mark said:
I was actually leaning towards intentional misinterpretation.
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Hard to say. Posner wouldn't be the first smart guy to totally pooch this stuff simply because he didn't do any research. His entire take sounds like something he wrote off the cuff from stuff he's always heard but never really researched, and his complete lack of citations certainly doesn't do much to fend off that idea.
 
ricksfolly said:
There is no AND after state, only a comma, and a comma simply means a pause in a paragraph, proving that you flunked your 5th grad exam.

Here, read it again. Change the comma to AND, and you'll see what I mean.

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.

Of course the right for people to bear arms means nothing to me as a practice, the trend is already in place, can't be stopped, and compared with all the other deaths, the ratio of murders with guns isn't all that imposing, but I do try to follow the punctuation rules.


Richard
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Sure. You change the comma to "and" and you create a sentence which makes no sense and reads like something a third-grader would write.

So stick to this silly argument if you like, but repeating it doesn't make it less silly.
 
Harshaw said:
Hard to say. Posner wouldn't be the first smart guy to totally pooch this stuff simply because he didn't do any research. His entire take sounds like something he wrote off the cuff from stuff he's always heard but never really researched, and his complete lack of citations certainly doesn't do much to fend off that idea.
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Hell, that sounds like many of my posts - the ones I don't really care much about.

I usually mention "I think", or "my understanding is", however.
 
Goshin said:
Guy, your capacity to completely and resolutely ignore what the Founders said about the 2A and the right of the people to arms, in favor of this Judge Posner instead of George Washington, Thomas Jefferson, Samuel Adams, George Mason, and others who were involving in writing the amendment and forming the early government, is..... well, let's just say, quite remarkable.
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Ok, you've got a fair point Goshin. If my view is correct, then I ought to have prominent founders who support that view, or at least can be read consistently with it. I have demonstrated that the quotations you have provided are not inconsistent with my view, but I have yet to provide any of my own. So, here is Delaware Founding Father Tench Coxe's commentary on the purpose of the second amendment:

Tench Coxe said:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
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As Coxe explains, it is the purpose of the second amendment to defend the country from tyranny, not to shoot clay pigeons, and he even relates it to the term of art "keep and bear arms." This is a military context only, not anything less or more. Clearly the way Mr. Coxe understands it, the scope and import of the second amendment is married to the militia; a personal gun ownership right for hunting and sport is not even given consideration. This is the most pointed quotation from a Founder with reference to our debate yet posted, and it is in my favor. QED.
 
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Guy Incognito said:
Ok, you've got a fair point Goshin. If my view is correct, then I ought to have prominent founders who support that view, or at least can be read consistently with it. I have demonstrated that the quotations you have provided are not inconsistent with my view, but I have yet to provide any of my own. So, here is Delaware Founding Father Tench Coxe's commentary on the purpose of the second amendment:



As Coxe explains, it is the purpose of the second amendment to defend the country from tyranny, not to shoot clay pigeons, and he even relates it to the term of art "keep and bear arms." This is a military context only, not anything less or more. Clearly the way Mr. Coxe understands it, the scope and import of the second amendment is married to the militia; a personal gun ownership right for hunting and sport is not even given consideration. This is the most pointed quotation from a Founder with reference to our debate yet posted, and it is in my favor. QED.
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Clearly you are blind.

I quote your quote back at you:
Tench Coxe said:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
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I helpfully bolded and italicized the section that jumped out at me.

That he prefaces it with the REASONS for such, has no bearing on his conclusion.

Namely, “the people are confirmed by the next article in their right to keep and bear their private arms.”

In all seriousness, it doesn’t get much clearer than that.
 
The Mark said:
In all seriousness, it doesn’t get much clearer than that.
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It's not as clear as you seem to think it is. We've already discussed the fact that "keep and bear arms" is a term of art. Remember that when you read the bolded sentence. Tench Coxe is a highly sophisticated writer. He is aware of this nuance. Thus is basically reads: the people are confirmed in the right to use their private arms in the militia.
 
Guy Incognito said:
We've already discussed the fact that "keep and bear arms" is a term of art.
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Which you've demonstrated repeatedly you thoroughly fail to grasp, sure.
 
Guy Incognito said:
It's not as clear as you seem to think it is. We've already discussed the fact that "keep and bear arms" is a term of art. Remember that when you read the bolded sentence. Tench Coxe is a highly sophisticated writer. He is aware of this nuance. Thus is basically reads: the people are confirmed in the right to use their private arms in the militia.
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Back to that again, are we?

You have yet to prove to me that your interpretation of what that phrase meant during that time period is correct.

A quote, without links, from a historian, again who provides no evidence, is not proof.

Further, you have no proof that the writers of the 2nd, or Tench Coxe, used that phrase with that specific "term of art" in mind.

One would think that if, indeed, "keep and bear" was a "term of art" (or whatever they called it then), then someone would have defined it somewhere - and that said definition could be located, documented, and presented to prove your point.

And lastly, how in HELL could people "use their private arms in the militia" if they didn't have any god damned private arms!!!
 
The Mark said:
You have yet to prove to me that your interpretation of what that phrase meant during that time period is correct.

A quote, without links, from a historian, again who provides no evidence, is not proof.
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If Mr. Tushnet couldn't convince you how can I? The burden of proof is on your to refute his position, and I haven't seen that from you.

As for providing you links, I'm giving you citations, that is the best I can do. Most of my research is from books. Sorry.

The Mark said:
Further, you have no proof that the writers of the 2nd, or Tench Coxe, used that phrase with that specific "term of art" in mind.
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Like I said, my quotation from Tushnet is the proof. But you don't have to take his word for it, just do a little research yourself. Any historian of the era will have arrived at a similar conclusion.

You're the one who is reaching with this false history you cling to, real history is low hanging fruit by comparison. You want me to write up a bibliography for you so you can see what I mean?
 
The Mark said:
One would think that if, indeed, "keep and bear" was a "term of art" (or whatever they called it then), then someone would have defined it somewhere - and that said definition could be located, documented, and presented to prove your point.
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It was defined by common eighteenth-century usage, which is well known to historians (and poorly understood by lawyers). It was well known at the time that "keep and bear" was a term of art relating to military service. The reason nobody defined it is because it was before the first dictionary was ever written.
 
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Guy Incognito said:
If Mr. Tushnet couldn't convince you how can I? The burden of proof is on your to refute his position, and I haven't seen that from you.
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:roll:

The "burden of proof" is for him to back it up his assertion with evidence. And it falls to YOU to do so if you adopt his position as your own.

Your burden, too, is to make sure that what you quote of his is in its full context, and there's certainly no reason to think you did.


As for providing you links, I'm giving you citations, that is the best I can do. Most of my research is from books. Sorry.
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No, it's not. You spent a day Googling, if even that long, and it wasn't even "research" -- it was a fishing trip to confirm the position you want to take.


Like I said, my quotation from Tushnet is the proof. But you don't have to take his word for it, just do a little research yourself. Any historian of the era will have arrived at a similar conclusion.
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Strangely enough, you completely ignore posts which refute this assertion outright. You've been doing it this entire thread.

You're the one who is reaching with this false history you cling to, real history is low hanging fruit by comparison. You want me to write up a bibliography for you so you can see what I mean?
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If you do, be sure to include the link to the web page that you copy/paste it from.
 
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Guy Incognito said:
It was defined by common eighteenth-century usage, which is well known to historians (and poorly understood by lawyers). It was well known at the time that "keep and bear" was a term of art relating to military service. The reason nobody defined it is because it was before the first dictionary was ever written.
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THe first full-blown English dictionary was published in 1604, when the language as we know it was barely a few decades old. Apparently, you think Noah Webster's was the first. :rofl

And, nice dig at the legal scholars. Apparently you do understand that not one agrees with you on interpreting this legal matter, while at the same time you pretend no "historians" disagree with you.
 
Guy Incognito said:
Ok, you've got a fair point Goshin. If my view is correct, then I ought to have prominent founders who support that view, or at least can be read consistently with it.
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Having read thu this thread, it seems you have been told this numerous times in numerous ways. Good to see you finally recognize this.
Your recognition probably has something to do with you finally finding something that you think supports that position.

As Coxe explains....
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In order for your position to stand, you have to show a positive declaration of exclusion. Coxe doesn't give you this, and so it doesnt support your position.
 
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Guy Incognito said:
If Mr. Tushnet couldn't convince you how can I? The burden of proof is on your to refute his position, and I haven't seen that from you.
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No.
Mr. Tushnet couldn’t convince me because the quote you provided was only an unsupported opinion/analysis, with no references to any evidence whatsoever that would prove his (and as a result, your) assertion.
Guy Incognito said:
As for providing you links, I'm giving you citations, that is the best I can do. Most of my research is from books. Sorry.
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Not good enough.

Those books must have references to supporting evidence (otherwise, I don’t see why you believe his assertions without proof), and it shouldn’t be hard for you to tell me not only the name of the book, but also give me info on where to locate the supporting evidence – if it exists.

Guy Incognito said:
Like I said, my quotation from Tushnet is the proof. But you don't have to take his word for it, just do a little research yourself. Any historian of the era will have arrived at a similar conclusion.
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The quote from Tushnet is NOT proof. It’s an unsupported assertion. And since it is your position, why don’t YOU find those other historians who agree with him. I have my position already in place, and you’re trying to prove my position wrong – why the hell should I look for information to help you prove me wrong?

Guy Incognito said:
You're the one who is reaching with this false history you cling to; real history is low hanging fruit by comparison. You want me to write up a bibliography for you so you can see what I mean?
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It’s your opinion that my version of history is false – prove it.

Guy Incognito said:
It was defined by common eighteenth-century usage, which is well known to historians (and poorly understood by lawyers).
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Prove it.
Guy Incognito said:
It was well known at the time that “keep and bear" was a term of art relating to military service.
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Again, prove it.
Guy Incognito said:
The reason nobody defined it is because it was before the first dictionary was ever written.
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As helpfully provided by someone else already, you are incorrect about the dictionary, and since the entirety of your statement rests on that foundation, you have yet to prove any of it.

The rest is simply unfounded assertions with no evidence to back it up.
 
Mr Tushnet doesn't trump the words of the people who wrote the Constitution, nor does Posner.


I apologize for repeating myself, gentlemen... but for some reason the words of George Washington, Thomas Jefferson, George Mason, and numerous other Founders just keep getting ignored in favor of obscure historians and minor jurists.

George Washington seems pretty convinced that there is an individual right to possess weapons. Thomas Jefferson and George Mason appear to be convinced that the right of a private citizen to possess and carry arms for self-defense is a vital and unquestioned right. Many Founders indicate that the 2A was not solely about militia service, but also about quelling crime via personal self-protection.

I have yet to see anyone post any credible refutation that the Founders quoted below, didn't mean exactly what they said.



What the Founders of the US said about guns:
Benjamin Franklin: Those who would give up essential liberty to purchase a little temporary
safety, deserve neither liberty nor safety." (Nov 11 1755, from the Pennsylvania Assembly's reply to
the Governor of Pennsylvania.)

Thomas Jefferson: "Laws that forbid the carrying of arms...disarm only those who are neither
inclined or determined to commit crimes. Such laws only make things worse for the assaulted and
better for the assassins; they serve to encourage than to prevent homicides, for an unarmed man
may be attacked with greater confidence than an armed man." (1764 Letter and speech from T.
Jefferson quoting with approval an essay by Cesare Beccari)

John Adams: "Arms in the hands of citizens may be used at individual discretion in private self
defense." (A defense of the Constitution of the US)

George Washington: "Firearms stand next in importance to the Constitution itself. They are the
people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than
99% of them [guns] by their silence indicate that they are in safe and sane hands. The very
atmosphere of firearms everywhere restrains evil interference [crime]. When firearms go, all goes,
we need them every hour." (Address to 1st session of Congress)

George Mason: "To disarm the people is the most effectual way to enslave them." (3 Elliot,
Debates at 380)

Noah Webster: "Before a standing army can rule, the people must be disarmed, as they are in
almost every country in Europe." (1787, Pamphlets on the Constitution of the US)

George Washington: "A free people ought to be armed." (Jan 14 1790, Boston Independent
Chronicle.)

Thomas Jefferson: "No free man shall ever be debarred the use of arms." (T. Jefferson papers,
334, C.J. Boyd, Ed. 1950)

James Madison: "Americans have the right and advantage of being armed, unlike the people of
other countries, whose people are afraid to trust them with arms." (Federalist Paper #46)
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On what is the militia:

George Mason: "I ask you sir, who are the militia? They consist now of the whole people." (Elliott,
Debates, 425-426)

Richard Henry Lee: "A militia, when properly formed, are in fact the people themselves...and
include all men capable of bearing arms." (Additional letters from the Federal Farmer, at 169, 1788)

James Madison: "A WELL REGULATED militia, composed of the people, trained to arms, is the
best and most natural defense of a free country." (1st Annals of Congress, at 434, June 8th 1789,
emphasis added.

IMPORTANT NOTE: Back in the 18th century, a "regular" army meant an army that had
standard military equipment. So a "well regulated" army was simply one that was "well equipped." It
does NOT refer to a professional army. The 17th century folks used the term "STANDING Army"
to describe a professional army. THEREFORE, "a well regulated militia" only means a well equipped
militia. It does not imply the modern meaning of "regulated," which means controlled or administered
by some superior entity. Federal control over the militia comes from other parts of the Constitution,
but not from the second amendment.
Patrick Henry: "The people have a right to keep and bear arms." (Elliott, Debates at 185)

Alexander Hamilton: "...that standing army can never be formidable (threatening) to the liberties
of the people, while there is a large body of citizens, little if at all inferior to them in the use of arms."
(Federalist Paper #29)

"Little more can be aimed at with respect to the people at large than to have them properly armed
and equipped." (Id) {responding to the claim that the militia itself could threaten liberty}" There is
something so far-fetched, and so extravagant in the idea of danger of liberty from the militia that one
is at a loss whether to treat it with gravity or raillery (mockery). (Id)
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FOUNDING FATHERS INTENT BEHIND THE CONSTITUTION:

Samual Adams: "The Constitution shall never be construed to prevent the people of the United
States who are peaceable citizens from keeping their own arms." (Convention of the Commonwealth
of Mass., 86-87, date still being sought)

Noah Webster: "Good intentions will always be pleaded for every assumption of authority...the
Constitution was made to guard against the dangers of good intentions. There are men in all ages
who mean to govern well, but they mean to govern. They promise to be good masters, but they mean
to be masters." (Source still being sought)

Thomas Jefferson: "On every occasion...[of Constitutional interpretation] let us carry ourselves
back to the time when the Constitution was adopted, recollect the spirit manifested in the debates,
and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it,
[instead let us] conform to the probable one in which it was passed." (June 12 1823, Letter to
William Johnson)
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Answers.com - Founding fathers quotes on guns

Thomas Jefferson: "No free man shall ever be debarred the use of arms." (T. Jefferson papers, 334, C.J. Boyd, Ed. 1950)

Thomas Jefferson: "What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms." (Thomas Jefferson to James Madison)

Thomas Jefferson: "Laws that forbid the carrying of arms...disarm only those who are neither inclined or determined to commit crimes. Such laws only make things worse for the assaulted and better for the assassins; they serve to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." (1764 Letter and speech from T. Jefferson quoting with approval an essay by Cesare Beccari)

John Adams: "Arms in the hands of citizens may be used at individual discretion in private self defense." (A defense of the Constitution of the US)

Samual Adams: "The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." (Convention of the Commonwealth of Mass., 86-87, date still being sought)

George Washington: "Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference .When firearms go, all goes, we need them every hour." (Address to 1st session of Congress)

George Washington: "A free people ought to be armed." (Jan 14 1790, Boston Independent Chronicle.)

George Mason: "To disarm the people is the most effectual way to enslave them." (3 Elliot, Debates at 380)

Noah Webster: "Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe." (1787, Pamphlets on the Constitution of the US)

James Madison: "Americans have the right and advantage of being armed, unlike the people of other countries, whose rulers are afraid to trust them with arms." (Federalist Paper #46)

Patrick Henry: "The people have a right to keep and bear arms." (Elliott, Debates at 185)

Richard Henry Lee: "To preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them..." (Richard Henry Lee writing in Letters from the Federal Farmer to the Republic, 1787-1788).

Alexander Hamilton: "The best we can hope for concerning the people at large is that they be properly armed" (The Federalist Papers at 184-8)
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I decided to throw this in just for fun and comparative reference:

MODERN LEADERS THOUGHTS ON GUN CONTROL:

Adolf Hitler: "This year will go down in history. For the first time, a civilized nation has full gun
registration. Our streets will be safer, our police more efficient, and the world will follow our lead."
(Chancelor's Speech, 1935)

Charles Shumer: (US Congress, has sworn an oath to defend the US Constitution) "All we ask for
is registration, just like we do for cars." (Press conference, 1993, exact date being sought)

Adof Hitler: "The most foolish mistake we could make would be to allow the subject peoples to
possess arms. So let's not have any talk about native militias." (Hitler's Secret Conversations,
1941-44, Farrar, Strauss and Young, 1953)

Mao Tse Tung: "All political power comes from the barrel of a gun. The communist party must
command all the guns, that way, no guns can ever be used to command the party." (Problems of
War and Strategy, Nov 6 1938, published in "Selected Works of Mao Zedong," 1965)

Diane Feinstein: "US Senator, If I could have banned them all- 'Mr. and Mrs. America turn in
your guns' -I would have!" (Statement on TV program 69 Minutes, Feb 5 1995)

Mahatma Gandhi: "Among the many misdeeds of the British rule in India, history will look upon the
act of depriving a whole nation of arms, as the blackest." ("Gandhi, an Autobiography," M.K. Gandhi,
446)

Sigmund Freud: "A fear of weapons is a sign of retarded sexual and emotional maturity."
("General Introduction to Psychoanalysis," S. Freud)
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Patria Antiqua said:
As written, the Second Amendment was clearly intended for militias. I wish we could just abrogate the amendment entirely and put an end to the ridiculous cult of firearms in this country.
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this is a fiction that the gun hating left made up in order to justify racist and bigoted laws aimed at blacks, jews and "papists"

I wish I could rid this country of the anti constitutional nonsense that permeates the minds of so many lefties and more than a few right wingers
 
Guy Incognito said:
You know, I've been thinking about it, and Scalia and the gun-rights advocates who are proposing this pseudo-history for the second amendment are right about one thing. The second amendment is an individual right, not a collective one. But unfortunately for them, this doesn't really help to bolster the pro-gun agenda when you also considered the text of the second amendment itself. The fact that it is a conditional sentence, and the fact that the phrase "keep and bear arms" is a legal term of art referring to military service, have both been demonstrated repeatedly by me in this thread.

Thus the right in the second amendment is an individual one, but only insofar as it its the right of the individuals who make up the people to be represented by the militia, and to take part in it as citizens. But that is contingent on the militia's being necessary for the security of the free state, and it is also contingent on the constraints of a well-regulated militia. The militia may lawfully constrain the individual use of weapons and even their ownership. Though the federal government may not infringe on gun ownership rights of the individual, the state government and the militia itself certainly could, and this is how the founders envisioned it and wrote it. This is the original intent.

So why fight it? Clearly gun ownership is more important to the pro-gun advocates than actual historicity. I doubt that any historical consensus could sway the opinion of Scalia. As it should be that way. Gun rights are fundamental. But they shouldn't be placed on an insecure foundation of bad history. Because then it is opening it up to being undermined by people who might come along later and want to undermine gun ownership rights. They'll have a much easier time with it, since history will be on their side. A future justice who over rules Heller in fifty years may make an off-hand comment like, "Scalia's reasoning is sound, but considering on what we know of history now, Heller ought to be overturned based on Scalia's own logic." And he'd be right! Doesn't that worry you?

It should.
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where does the militia get the power to abrogate an individual's right to keep and bear arms.

sorry this is another bit of specious nonsense that has no factual basis
 
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