help with 2nd amendment on another board

Not according to the 9th district appeals court and the former AG of the US.

the constitution of the united states DOES NOT guarentee a civilians right to own guns... It only guarentees the rights of the states to raise a militia...

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In order to interpret the 2nd amendment in this way one has to either ignore, or not know what the legal definition of the Militia is.

No, it's not true.

Goto my blog, http://geekwitha45.blogspot.com

Look at the upper lefthand corner, and read the dozen or so links under "The Documents of Liberty". It's a short and thorough course on that fallacy and related subjects.

Just paste the recent DC circuit court ruling that overturned the handgun ban. Or, just some quotes from the founding fathers on guns, and point out that the 2nd says "the right of the people" not the right of the state, the body of the Constitution already gave the government the right to raise an army. Why would it say the right of the people if it meant the right of the states? Makes no sense, especially given the fact other ammendment mention the people, and they clearly protect individuals. It says nothing about states, only the people. The people were the militia. Therefore, the people have a right to be well armed in order for the rpeservation of a free state, free of tyranny.

Tell him that what he says isn't the position of the Fifth Circuit Court of Appeals or the D.C. Circuit Court of Appeals. Nor is it the position that noted Harvard Constitutional Law professor Laurence Tribe takes in his 3d edition textbook on Constitutional Law.

Here is a link supporting all of those statements:
http://article.nationalreview.com/?q=ZWUwMDZhMjI0MGNmZjc4NDEwMjUwZGZkZDM1ZDhkNzQ=

I think he's basically correct in that it is not the federal government but rather the States which are intended to be the bulwarks of the individual RKBA ... but you might suggest to him that the Constitution delegates the US a power to call forth a State's Militia, and that gives the States, not just a right, but a duty to maintain at least an armed populace ... and quote him some Presser v Illinois, where the SCOTUS said that no State could disarm its people because it would deprive the US of a source of militia.

I think the US Constitution does protect a general RKBA as it relates to militia. But if you want to argue that the US Constitution protects a right of every individual to keep and bear arms for personal use, then I think your position is untenable.

Second and Ninth

You would think that, by now, I'd know how to avoid a double post.

* Sigh *

Second and Ninth

The Second Amendment protects the right of THE PEOPLE to keep and bear arms.

The Ninth Amendment protects the non-enumerated rights of THE PEOPLE. (In other words, the fact that I say you may play in the park does not mean I forbid you to play in the woods, and arguing that "Dad only said we could play in the park" does not constitute a denial of other play venues. Notice the conspicuous absence of the word "only" in the Second.)

The Second Amendment suggests a good reason for bearing arms, not a prohibition of other reasons for bearing arms.

Personal uses are not proscribed, just as they are not enumerated.

So, per the Second, you may own and use a gun. There being no restricting provision against it, you may use it for personal purposes.

Ownership and use are protected.

Just don't shoot the neighbor's chickens.

Why would the term

"the people" mean one thing in the First, Fourth, Ninth and Tenth Amendments and something different in the Second? In fact, the Tenth clearly differentiates between the States and the People. If the Second was intended to apply only to states' ilitias, it would have said, "the right of the states to keep and bear arms shall not be infringed."

I wouldn't be worried about engaging this 'attorney' in debate just because he states he's a lawyer.....I don't know many lawyers who regularly use 'lol' when they ever-so-discretely let slip the fact that they happen to practice law.

I assume everyone whose posts I read on most message boards are 17 year old high school students until proven otherwise. Show him the argument and see how scholarly he turns out to be.


It looks like you've gotten more than enough information to refute his claims.

The entire Bill of Rights cover both the individual acting alone, and the collective acting in concert. They are about any and all combinations acting as citizen(s) against the government. The worry at the time was that this new government, regardless of how well constituted, would in time act as all governments do and seek to negate the rights of the citizen(s).

Don't worry about arguing with an attorney. While he argues professionally, and is able to advocate either side of an argument without remorse, if he's not getting paid to do so he'll soon tire and move on. (Kinda like another ancient professional practitioner behaves once the money runs out. The only difference there is you know going in you're gonna get screwed!)

FYI: The 2nd Amendment isn't covered in Law School (not that I can remember anyway). Of course, there isn't much case law to study, either. But that is changing thanks to the D.C. Circuit.

As a whole, I suspect that the people on this board know more about the 2nd Amendment than 99% of the lawyers out there.

Anyone who wants to check my "lawyerly" credentials is welcome to stop by my office in Vegas. My diploma and license to practice are hanging up behind me at this very moment.

the constitution of the united states DOES NOT guarentee a civilians right to own guns... It only guarentees the rights of the states to raise a militia...

The right for civilians to own weapons is addressed in the individual state constitutions...

Sorry... not tryin to start an argument, just the attorney to be comin out in me... lol

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I ain't no attorney...lol but I was under the impression the second amendment doesn't guarantee either of his statements. Only that it simply states the government shall not restrict the right to keep and bear arms (the right that's always present, not granted). It recognized we need militias, it recognized the people also need to be armed, and it says gov't needs to keep their big fat nose out of it. So if the constitution were ripped up tomorrow we wouldn't lose the right, because it's not granting the right. It's just saying it's a natural right and the gov cannot infringe on that.

My dad is an attorney. I argue with him all the time.

point out that the U.S. code says the militia is NOT just the National Guard
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+10USC311

When someone uses the "right of the state" argument on the 2A, I just want to say, "I'm sure glad that Constitution guarantees the government the right to assemble a standing army!!!"

Start With This

The Constitution does not guarantee nor grant the Right to Keep and Bear Arms. It prohibits government to infringe upon the right.

How could a prohibition on government infringing the right be misconstrued to grant a government the power to raise a militia?

What good is a militia that is made up of disarmed people?

States do not have rights. States only have specific powers granted to them by the people of that state in the constitution for the state.

Some state's constitutions make no mention of the Right to Keep and Bear Arms.

Don't be intimidated by someone who claims to be a lawyer. Challenge him(her) to back up what (s)he claims. Even the justices on the Supreme Court are just men and a woman. Most of them are agenda driven and wouldn't be able to stand up to the scrutiny of a higher court if there were such a court. So, YOU be the judge.

Woody

There is perspective and there is pretense. No amount of bombast or emotion can truthfully equate the two. One does not add validity to the other. Bombast and emotion added to pretense does not equal perspective. Reason, fact, and logic? That's a different matter. That will net you perspective every time. B.E.Wood

"Just paste the recent DC circuit court ruling that overturned the handgun ban."

Just ask him kindly to read the whole thing and find for himself. See attached ruling in pdf format.

Thomas Jefferson said it all!!!

"Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state."

"The spirit of resistance to government is so valuable on certain occasions, that I wish it always to be kept alive."

"All tyranny needs to gain a foothold is for people of good conscience to remain silent."

"For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security." (Written before the National Guard was even thought of.)

"No free man shall ever be debarred the use of arms."

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."



...and the quote that explains the OP's "almost a lawyer" best...

"He who knows nothing is closer to the truth than he whose mind is filled with falsehoods and errors."

The people who argue that have little proof to back it up. If you look at the history, in the founders writings, it all says basically what we have said for years. If there were a mountain of writing supporting the anti view, I'd admit defeat but it just is not there.

The best they can do is Miller, which is also represented wrongly IMO.

The militia IS the people. That's what the militias in the Revolutionary War consisted of, private citizens.

Geister, that arguement failing, remember it is covered even more clearly by state constitutions.

Article 1 Section 8 clauses 15 and 16 already dealt with State and federal powers regarding the Miltilias, and ensured the rights of the citizen Militias to be armed ("Congress shall have the power to provide for...arming...the Militia..."; Congress 1st did this in the 2nd A to make sure the Right was protected as personal and individual - as a "right of the people"; and to make this protection part of the supreme Law to be sure NO agency or combination could infringe on it.

All this is confirmed by the Miltia Act of 1792 where the people were required to arm themselves - as they always had. (and confirmed by the USSC in Dred Scott, Miller, etc.)

shield20 said:

Article 1 Section 8 clauses 15 and 16 already dealt with State and federal powers regarding the Miltilias, and ensured the rights of the citizen Militias to be armed ("Congress shall have the power to provide for...arming...the Militia...";

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That's exactly right - Congress was already given that power. And because of that, there would be no need to add the Second Amendment if it was only concerned with arming the militia (which is rather redundant, because an unarmed militia is a mob, not a militia).

Ask him why the Second doesn't say "the right of the Militia to keep and bear arms." The founding fathers had nothing to hide and were very keen on saying exactly what they meant. Had they meant to guarantee the Militia would be armed, that's what they'd have said.

Oh wait, they did....way back in Article 1. :banghead:


It's important to remember the Bill of Rights doesn't guarantee rights, it recognizes them and protects them from federal government infringement. It's been said a couple of times, but it deserves repeating.