
The Second Amendment: Original Intent - fforflo
http://www.newyorker.com/humor/daily-shouts/the-second-amendment-original-intent
======
RCompKing
"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

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throw0112a
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). )

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jlgaddis
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.

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soneil
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
Prohibition (the Volstead Act) was "struck down" by the formal Constitutional
Amendment process, not by the courts or by statute process.

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hackercomplex
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
That is a fantastic work. Better than I could have ever expected.

~~~
hackercomplex
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.

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sageikosa
[http://www.thefederalistpapers.org/history/the-founding-
fath...](http://www.thefederalistpapers.org/history/the-founding-fathers-on-
the-second-amendment)

You get a better sense here.

~~~
elthran
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
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.

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Ensorceled
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.

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notacoward
Federal government, state government. Over here they're separate.

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Ensorceled
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
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.

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dawnbreez
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.

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throw0112a
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....](http://www.theglobeandmail.com/globe-debate/article28078752.ece)

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
> 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!"

~~~
jbssm
Yes, there the words of Thomas Jefferson put it quite explicitly:

You have the right to have arms within your own house in order to potentially
use it in a rebellion against an autocratic state in case it arrises. Nowhere
it gives you the right to carry weapons around with you on the public place.

This makes it as clear as water really.

~~~
thecus
And the supreme court specifically called out in their rulings that they did
not imply that it was a constitutional right to carry a concealed weapon.

That also doesn't mean it should be illegal... we've seen immense decrease in
violent crimes over the past two decades -- we've also seen a dramatic shift
in state laws allowing the right for people to conceal carry.

Correlation != causation and such, but science and numbers matter... They are
really interesting when you review them.

~~~
jbssm
I believe the question of legality when carrying a concealed weapon is an all
different matter.

The reason you cannot make ilegal is that some people (read NRA loonies) keep
trying to make look as carrying a concealed weapon is a constitutional right
granted by the 2nd amendment. When it's clearly not.

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spacecowboy_lon
:-)

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

~~~
jbssm
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
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.

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chroma
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
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

~~~
thecus
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.

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mgpwr_new
interesting read

