7 ms·

The Second Amendment: Original Intent

22 points by fforflo 11y ago

mgpwr_new 11y ago
interesting read
hackercomplex 11y ago
I'll just leave this here.. Electronic Frontiers Forum Presented at Dragon Con 2015 The Second Amendment: A Refreshing Perspective Tom Cross https://www.youtube.com/watch?v=pp0-g-cjxmM https://www.youtube.com/watch?v=pp0-g-cjxmM
- gravypod 11y ago
  That is a fantastic work. Better than I could have ever expected.
  - hackercomplex 11y ago
    Tom Cross is a really interesting professional. he's _decius_ on twitter. I found his presentations at Blackhat and Defcon security conferences to be eye opening aswell.
spacecowboy_lon 11y ago
:-) Ignoring the point that common law allows for self defense - back then the UK even let Catholics and other subversives own weapons.
- jbssm 11y ago
  Since when the right for self defence calls for the use of fire guns? Basically every society preserved the right to self defence from the time humans first started to gather until now in more advanced cultures where gun possession is strictly controlled.
  - spacecowboy_lon 11y ago
    Uk Legal precedent for one, its only post the general strike in 26 when Churchill panicked and brought in restrictions. Ready any Sherlock Holmes story and you can see that Watson often caries a gun for protection.
- etaty 11y ago
  Nuclear warhead is self defence also. Proof: countries use it.
- pjc50 11y ago
  For "then" = 1792, but weapons (and tartan!) were banned in highland Scotland between 1747 and 1782: "it should not be lawful for any person or persons ... to have in his or their custody... broad sword or target, poignard, whinger, or durk, side pistol, gun, or other warlike weapon" http://www.educationscotland.gov.uk/scotlandshistory/jacobitesenlightenmentclearances/actofproscription/ http://www.educationscotland.gov.uk/scotlandshistory/jacobit...
throw0112a 11y ago
The ‘individual mandate’ of citizens having the right to firearms, when they’re not part of a state-level Militia, seems to be a recent phenomenon: > The U.S. Supreme Court had never, until 2008, suggested even once that there was any such right. Warren Burger, the arch-conservative Supreme Court justice appointed by Richard Nixon, in an interview in 1991 described the then-new idea of an individual right to bear arms as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” * http://www.theglobeandmail.com/globe-debate/article28078752.ece http://www.theglobeandmail.com/globe-debate/article28078752.... There's a book mentioned in the above article called "The Second Amendment: A Biography”, but haven’t had a chance to read it yet. The author, Michael Waldman, has some good interviews and talks online. It was released in 2014 and most of them are from then. These two are pretty good (about an hour each): * https://www.youtube.com/watch?v=IopMFON6BNM https://www.youtube.com/watch?v=IopMFON6BNM * https://www.youtube.com/watch?v=cxTOBh_AZJY https://www.youtube.com/watch?v=cxTOBh_AZJY
- hackercomplex 11y ago
  > The ‘individual mandate’ of citizens having the right to firearms, when they’re not part of a state-level Militia, seems to be a recent phenomenon "No freeman shall be debarred the use of arms [within his own land or tenements]" -Thomas Jefferson's proposal of language to add to the Virginia Constitution Also, there is a supreme court ruling from my home state which expresses a view of the origin of this right which goes back to England before the founding the United States: Nunn vs Georgia (1846) "The right of the whole people, old and young, men, women, and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon in the smallest degree; and all this for the important end to be attained: The rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I, and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Manga Charta!"
Ensorceled 11y ago
Okay, so the Second Amendment really says: "In order to prevent tyranny by the government, the government organized national guard shall not be disarmed"? Sorry, I'm Canadian and think the entire US legal system is insane but that's NOT what the 2nd says. They're going to need to buckle down and amend it or agree it doesn't apply to crazy people or ... I don't know ... something. They can't just reinterpret it.
- notacoward 11y ago
  Federal government, state government. Over here they're separate.
  - Ensorceled 11y ago
    How is the Pentagon able to call the National Guard up for active duty as they did in 2003[1] and other occasions if they are separate from the Federal armed forces? [1] https://www.wsws.org/en/articles/2003/10/ng-o04.html https://www.wsws.org/en/articles/2003/10/ng-o04.html
    - notacoward 11y ago
      They are separate in the sense that they are raised, trained, funded, etc. by the state government. The fact that operational control is ceded to the federal government in times of war doesn't change that. The US military can't call up a unit that doesn't exist, or that no longer responds to its orders due to a constitutional crisis. The Second Amendment implication is that the federal government may not prevent the formation of a separate state militia. What happens after that is irrelevant to this discussion.
  - ende 11y ago
    So is the Canadian Federal and Provincial governments.
    - notacoward 11y ago
      Not to the same degree. In Canada the default is federal primacy, with specific powers delegated to the provinces - "merely local or private" in the constitution, 16 specific subject areas in the Constitution Act of 1867, federally-appointed lieutenant governors' powers of disallowance and reservation. In the US state primacy is the default, with specific powers delegated the other way by our own constitution. The in-practice truth is much messier than that, of course, but this difference in basic philosophy and constitutional phrasing puts the two on opposite sides of an important line.
chroma 11y ago
I use this silly example to help people read the 2nd amendment: "The gestation period of some species of opossum being seven months, the right of the people to speak freely shall not be infringed." Even if there isn't a species of opossum that gestates for seven months, free speech might still be a good idea. Or it might not. Either way, the first statement's truth value doesn't change the command. Now, to be fair: Compared to the founding fathers, we know much more about pretty much everything. I don't really care what they thought was best. I care about what is best for society. If that means more restrictions on guns, ok. If that means fewer restrictions on guns, ok. If it means some other thing, great. Deferring to previous generations makes no sense. We don't do that for disciplines such as math, biology, chemistry, or engineering. Why should we do it for law?
- elthran 11y ago
  Yeah, as a Brit, I've never fully understood the Constitution and its related documents being so glorified and set in stone - Especially when discussing the 2nd Amendment - Its an amendment, so obviously the founding fathers intended for the documents to be changeable
  - hippich 11y ago
    just like free speech and unreasonable search amendments.
  - thecus 11y ago
    And when 2/3 of the states support that change, it'll happen. The whole point of the constitution is that it is not driven by politics or emotional events. It is changed when a super majority of our citizens / states feel it should be changed. I don't like the ambiguity in the second amendment, but allowing an emotional event to be the catalyst to circumvent one of the other liberties enshrined in the constitution is scary. Regardless, with the advent of 3D printing, it's a stupid fucking argument anyway. Over the next few decades, every evil doer will be able to print a weapon.
sageikosa 11y ago
http://www.thefederalistpapers.org/history/the-founding-fathers-on-the-second-amendment http://www.thefederalistpapers.org/history/the-founding-fath... You get a better sense here.
- elthran 11y ago
  First thing I noticed >“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” – Virginia Declaration of Rights, June 12, 1776 I bet the same people that use this section as a justification of armed citizenry acting as a militia have no issue with the US army being active
  - sageikosa 11y ago
    Well that section isn't from the Federal constitution; and it's circumstances were the colonial military being controlled by the Kingdom of Great Britain, and practically everything else (except trade and taxation) being controlled locally, namely the operation of courts for civil transactions. The dislike for a standing army was always more of a warning and a distaste among the founders than any actual legal or constitutional prohibition. Via the constitution, militias are desired (expected?) to be well-regulated, meaning you probably don't get to be a "militia" (in the any legal sense) just because you declare it. But the right to bear arms is really independent of that; and comes from fear of military occupation (foreign or domestic) as much as by anything else.
RCompKing 11y ago
"I ask, sir, what is the militia? It is the whole people, except for a few public officials." — George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788
- throw0112a 11y ago
  But when Mason said "whole people", he was talking about the make up of the militia, and not the personal rights of said militia. (It's on this basis that conscription is legal in the US and one can be forced into the military (or be an objector). )
jlgaddis 11y ago
My big worry, if we allow The Second Amendment to be rewritten and/or re-interpreted (to "modernize") it, is that a precedent is set -- it will then be much easier to allow any of the other amendments to be rewritten and/or reinterpreted to align with the beliefs of those who are currently in power.
- soneil 11y ago
  That ship's already sailed. We already depend on the scotus to "fill in the details" in deciding & applying the intent of the constitution & bill of rights. Hell, we've already struck down amendments in their entirety (think Prohibition). This is a task they're already well equipped for, well practiced in, and pretty much designed for. (And I believe it was always meant to be this way. The wisest idea "the founding fathers" left us with, was that of amendments - that none of this was carved in stone, nor should it be, nor could be.)
  - DrScump 11y ago
    Prohibition (the Volstead Act) was "struck down" by the formal Constitutional Amendment process, not by the courts or by statute process.
- Ujio 11y ago
  I don't see a problem with "modernization". Constitutional documents should be living documents, tuned for clarity and for the times. Of course, such changes should not simply be a matter of passing a new bill. There should be significant political hurdles involved.
- nnain 11y ago
  Keeping the constitution open to changes seems to be an OK idea. India has had 100 amendments to the constitution since just 1950 - https://en.wikipedia.org/wiki/List_of_amendments_of_the_Constitution_of_India https://en.wikipedia.org/wiki/List_of_amendments_of_the_Cons... .
dawnbreez 11y ago
Oh boy, this shit again. The firearms conflict is basically unending, because what it comes down to is personal philosophy. You either trust most people to be reasonable, or you trust only a select few. Since it's a personal belief, it's nigh-impossible to get someone to change their mind on it.
deleted 11y ago
[deleted]
PetersC 11y ago
We take your second amendment right seriously. Check out our concealed carry options @ www.urbancarryholsters.com
PetersC 11y ago
We take your second amendment right seriously! www.urbancarryholsters.com

22 points by fforflo 11y ago

interesting read

I'll just leave this here.. Electronic Frontiers Forum Presented at Dragon Con 2015 The Second Amendment: A Refreshing Perspective Tom Cross https://www.youtube.com/watch?v=pp0-g-cjxmM https://www.youtube.com/watch?v=pp0-g-cjxmM

gravypod 11y ago
That is a fantastic work. Better than I could have ever expected.
- hackercomplex 11y ago
  Tom Cross is a really interesting professional. he's _decius_ on twitter. I found his presentations at Blackhat and Defcon security conferences to be eye opening aswell.

spacecowboy_lon 11y ago

:-) Ignoring the point that common law allows for self defense - back then the UK even let Catholics and other subversives own weapons.

jbssm 11y ago
Since when the right for self defence calls for the use of fire guns? Basically every society preserved the right to self defence from the time humans first started to gather until now in more advanced cultures where gun possession is strictly controlled.
- spacecowboy_lon 11y ago
  Uk Legal precedent for one, its only post the general strike in 26 when Churchill panicked and brought in restrictions. Ready any Sherlock Holmes story and you can see that Watson often caries a gun for protection.
etaty 11y ago
Nuclear warhead is self defence also. Proof: countries use it.
pjc50 11y ago
For "then" = 1792, but weapons (and tartan!) were banned in highland Scotland between 1747 and 1782: "it should not be lawful for any person or persons ... to have in his or their custody... broad sword or target, poignard, whinger, or durk, side pistol, gun, or other warlike weapon" http://www.educationscotland.gov.uk/scotlandshistory/jacobitesenlightenmentclearances/actofproscription/ http://www.educationscotland.gov.uk/scotlandshistory/jacobit...

throw0112a 11y ago

The ‘individual mandate’ of citizens having the right to firearms, when they’re not part of a state-level Militia, seems to be a recent phenomenon: > The U.S. Supreme Court had never, until 2008, suggested even once that there was any such right. Warren Burger, the arch-conservative Supreme Court justice appointed by Richard Nixon, in an interview in 1991 described the then-new idea of an individual right to bear arms as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” * http://www.theglobeandmail.com/globe-debate/article28078752.ece http://www.theglobeandmail.com/globe-debate/article28078752.... There's a book mentioned in the above article called "The Second Amendment: A Biography”, but haven’t had a chance to read it yet. The author, Michael Waldman, has some good interviews and talks online. It was released in 2014 and most of them are from then. These two are pretty good (about an hour each): * https://www.youtube.com/watch?v=IopMFON6BNM https://www.youtube.com/watch?v=IopMFON6BNM * https://www.youtube.com/watch?v=cxTOBh_AZJY https://www.youtube.com/watch?v=cxTOBh_AZJY

hackercomplex 11y ago
> The ‘individual mandate’ of citizens having the right to firearms, when they’re not part of a state-level Militia, seems to be a recent phenomenon "No freeman shall be debarred the use of arms [within his own land or tenements]" -Thomas Jefferson's proposal of language to add to the Virginia Constitution Also, there is a supreme court ruling from my home state which expresses a view of the origin of this right which goes back to England before the founding the United States: Nunn vs Georgia (1846) "The right of the whole people, old and young, men, women, and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon in the smallest degree; and all this for the important end to be attained: The rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I, and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Manga Charta!"

Ensorceled 11y ago

Okay, so the Second Amendment really says: "In order to prevent tyranny by the government, the government organized national guard shall not be disarmed"? Sorry, I'm Canadian and think the entire US legal system is insane but that's NOT what the 2nd says. They're going to need to buckle down and amend it or agree it doesn't apply to crazy people or ... I don't know ... something. They can't just reinterpret it.

notacoward 11y ago
Federal government, state government. Over here they're separate.
- Ensorceled 11y ago
  How is the Pentagon able to call the National Guard up for active duty as they did in 2003[1] and other occasions if they are separate from the Federal armed forces? [1] https://www.wsws.org/en/articles/2003/10/ng-o04.html https://www.wsws.org/en/articles/2003/10/ng-o04.html
  - notacoward 11y ago
    They are separate in the sense that they are raised, trained, funded, etc. by the state government. The fact that operational control is ceded to the federal government in times of war doesn't change that. The US military can't call up a unit that doesn't exist, or that no longer responds to its orders due to a constitutional crisis. The Second Amendment implication is that the federal government may not prevent the formation of a separate state militia. What happens after that is irrelevant to this discussion.
- ende 11y ago
  So is the Canadian Federal and Provincial governments.
  - notacoward 11y ago
    Not to the same degree. In Canada the default is federal primacy, with specific powers delegated to the provinces - "merely local or private" in the constitution, 16 specific subject areas in the Constitution Act of 1867, federally-appointed lieutenant governors' powers of disallowance and reservation. In the US state primacy is the default, with specific powers delegated the other way by our own constitution. The in-practice truth is much messier than that, of course, but this difference in basic philosophy and constitutional phrasing puts the two on opposite sides of an important line.

chroma 11y ago

I use this silly example to help people read the 2nd amendment: "The gestation period of some species of opossum being seven months, the right of the people to speak freely shall not be infringed." Even if there isn't a species of opossum that gestates for seven months, free speech might still be a good idea. Or it might not. Either way, the first statement's truth value doesn't change the command. Now, to be fair: Compared to the founding fathers, we know much more about pretty much everything. I don't really care what they thought was best. I care about what is best for society. If that means more restrictions on guns, ok. If that means fewer restrictions on guns, ok. If it means some other thing, great. Deferring to previous generations makes no sense. We don't do that for disciplines such as math, biology, chemistry, or engineering. Why should we do it for law?

elthran 11y ago
Yeah, as a Brit, I've never fully understood the Constitution and its related documents being so glorified and set in stone - Especially when discussing the 2nd Amendment - Its an amendment, so obviously the founding fathers intended for the documents to be changeable
- hippich 11y ago
  just like free speech and unreasonable search amendments.
- thecus 11y ago
  And when 2/3 of the states support that change, it'll happen. The whole point of the constitution is that it is not driven by politics or emotional events. It is changed when a super majority of our citizens / states feel it should be changed. I don't like the ambiguity in the second amendment, but allowing an emotional event to be the catalyst to circumvent one of the other liberties enshrined in the constitution is scary. Regardless, with the advent of 3D printing, it's a stupid fucking argument anyway. Over the next few decades, every evil doer will be able to print a weapon.

sageikosa 11y ago

http://www.thefederalistpapers.org/history/the-founding-fathers-on-the-second-amendment http://www.thefederalistpapers.org/history/the-founding-fath... You get a better sense here.

elthran 11y ago
First thing I noticed >“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” – Virginia Declaration of Rights, June 12, 1776 I bet the same people that use this section as a justification of armed citizenry acting as a militia have no issue with the US army being active
- sageikosa 11y ago
  Well that section isn't from the Federal constitution; and it's circumstances were the colonial military being controlled by the Kingdom of Great Britain, and practically everything else (except trade and taxation) being controlled locally, namely the operation of courts for civil transactions. The dislike for a standing army was always more of a warning and a distaste among the founders than any actual legal or constitutional prohibition. Via the constitution, militias are desired (expected?) to be well-regulated, meaning you probably don't get to be a "militia" (in the any legal sense) just because you declare it. But the right to bear arms is really independent of that; and comes from fear of military occupation (foreign or domestic) as much as by anything else.

RCompKing 11y ago

"I ask, sir, what is the militia? It is the whole people, except for a few public officials." — George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788

throw0112a 11y ago
But when Mason said "whole people", he was talking about the make up of the militia, and not the personal rights of said militia. (It's on this basis that conscription is legal in the US and one can be forced into the military (or be an objector). )

jlgaddis 11y ago

My big worry, if we allow The Second Amendment to be rewritten and/or re-interpreted (to "modernize") it, is that a precedent is set -- it will then be much easier to allow any of the other amendments to be rewritten and/or reinterpreted to align with the beliefs of those who are currently in power.

soneil 11y ago
That ship's already sailed. We already depend on the scotus to "fill in the details" in deciding & applying the intent of the constitution & bill of rights. Hell, we've already struck down amendments in their entirety (think Prohibition). This is a task they're already well equipped for, well practiced in, and pretty much designed for. (And I believe it was always meant to be this way. The wisest idea "the founding fathers" left us with, was that of amendments - that none of this was carved in stone, nor should it be, nor could be.)
- DrScump 11y ago
  Prohibition (the Volstead Act) was "struck down" by the formal Constitutional Amendment process, not by the courts or by statute process.
Ujio 11y ago
I don't see a problem with "modernization". Constitutional documents should be living documents, tuned for clarity and for the times. Of course, such changes should not simply be a matter of passing a new bill. There should be significant political hurdles involved.
nnain 11y ago
Keeping the constitution open to changes seems to be an OK idea. India has had 100 amendments to the constitution since just 1950 - https://en.wikipedia.org/wiki/List_of_amendments_of_the_Constitution_of_India https://en.wikipedia.org/wiki/List_of_amendments_of_the_Cons... .

dawnbreez 11y ago

Oh boy, this shit again. The firearms conflict is basically unending, because what it comes down to is personal philosophy. You either trust most people to be reasonable, or you trust only a select few. Since it's a personal belief, it's nigh-impossible to get someone to change their mind on it.

deleted 11y ago

[deleted]

PetersC 11y ago

We take your second amendment right seriously. Check out our concealed carry options @ www.urbancarryholsters.com

PetersC 11y ago

We take your second amendment right seriously! www.urbancarryholsters.com