Politics & Gov 2nd Amendment Of The Us Constitution.

Discussion in 'Politics & Government' started by Ritual, Apr 10, 2005.

  1. Ritual

    Ritual New Member

    The 2nd Amendment of the United States guarantees the rights of the people to keep and bear arms.


    In 1934 the Senate passed a bill that would ban fully automatic weapons.

    In the 1990's Clinton passed a law banning "assault weapons" which are basically just rifles with accessories like bayonets and grenade launchers.


    If the 2nd Amendment guarantees the right of the people to keep and bear arms, why did the Senate pass bills without first reforming the constitution and removing the 2nd amendment?

    More importantly, why have htey not repealed the gun laws on the principal that the Constitution has supreme power over everything. Arent they just spitting on what the whole idea of the Constitition is?


    WHat does everyone think?
     
  2. Mizar

    Mizar Premium Member

    I am a member of the NRA (National Rifle Assocation) and my father and I are gun collectors. We have our opinions of the gun laws and the 2nd ammendment. We are also verry conserative. But between us we have bought alot before the laws like the Braidy bill and stuff went in. SO at shows alot of our stuff is worth alot of money. There isn't much we are after these days. As for the whole right to bear arms stuff. People need to realize that there is a margin of safety. The people who really complain about these things are ignorant and really can;t see "Hey I have no need for a full auto M15 with bayonet and gernade launcher" People tend to take things way over board and then we get problems. It happens way to often.
     
  3. Ape

    Ape Premium Member

    Well u have to look at it both ways to ur way I agree they pretty much are "spitting" on the constitution But in there eyes there just trying to keep everyone safe from other people and just trying to "Keep the peace" even if it means rebeling the supreme power over everything. But really aren't rules only made to be broken?
     
  4. Ritual

    Ritual New Member

    But the 2nd Amendment was made so that there would be a constant weapons race so that people would organize.

    I understand the ethics of the gun laws, but I think the Constitution cant be put aside for the technicality on the "what if's". You cant really make an argument that you would rather give up your ultimate check and balance on the government because there is a pathetically small minority that would abuse the right.

    But I would say you are hardly anyone I would like (Mizar). And not my idea of what a US citizen is.
     
  5. Bleys

    Bleys Phoenix Takes Flight Staff Member

    Excellent question.

    And one, that unfortunately, takes reading almost 200 years of constitutional review to understand.

    I should preface this by saying I'm a liberal who owns lots and lots of guns - so I'm an oxymoron.

    From the time Madison crafted the 2nd amendment, the definition of arms and individual vs. collective rights have been debated, legislated and litigated. Over the last 200 years this undeniable right has been slowly eroded and defined. A process that is on-going since the constitution has becoming more of a "living document" rathen than the final word. This for purists is a huge disappointment, but for the majority of americans a necessity. The advancement of gun, rifle and weapons technology in general, far exceeds the vision of the founding fathers. Because of that you get a big grey area that demands review and reflection.

    The two biggest pieces of legislation regarding the 2nd amendment came in 1934 and 1968 with the National Firearms Act and the Gun Control Act.

    Both Acts had numerous challenges with the Courts determining that the collective good outweighed the individuals right. Having said that I don't necessarily agree with it. For me the right is undeniable and it's not the guns that should be legislated against, but the criminal. The Emerson case is probably the best example of how the Courts should decide these cases - based on individual facts and circumstances. I found this analysis of that case which is very well written:

    The 2nd amendment is only an absolute right so long as the Courts are willing to maintain an "individual right" interpretation. The 20th century was not a good century for the 2nd amendment because it has slowly been wittled away through legislation and Courts upholding that legislation. The only option for 2nd amendment purists is lobbying efforts regarding new legislation, court nominees and education. What's done is done and was done as the founding fathers envisioned - regardless of whether we agree with it or not.

    B.
     
  6. Mizar

    Mizar Premium Member

    All I was saying is that people need to have self control and realize when enough is enough. Is it wrong to have a personal collection? We don't even hunt that often we just compete in marksman compitions.

    I wasn't saying I NEED thoes things. I meant that people who want thoes things are ignorant to the facts that you don't have a use for them in modern society but we should contine to have people buy arms for the correct reasons. The whole deal here is we have people abuseing the system and taking advantage of it. Thats what I was trying to say.
     
  7. Ritual

    Ritual New Member

    Abusing the system? The point of the 2nd Amendment was not so you can hunt. The point of the 2nd Amendment was for the ability of the people to preserve freedom and security.

    Hunting is a luxury thanks to the 2nd Amendment, not its intended goal.

    It is not anyone abusing the system when they buy m16's, m203's, anti tank rockets, anti air missiles and armored vehicles. They are patriots.

    And if they dont deserve it, it is the right of the people to form militia and organize themselves to maintain security as a whole versus the minority evil.
     
  8. Zsandmann

    Zsandmann Premium Member

    What you are forgetting is that in 1776 'arms' were rifles that one had to reload with lead and powder after every shot. I fully believe if ANY of the founding fathers saw the weapons we have today they would fully agree that modifications are needed to stop 'unsavory' individuals from obtaining a fully automatic, 500 round clip holding, uzi with a tripod, laser sight, heat seeking grenade launcher, and oh maybe a nice yellow racing stripe down the side just to make it look cool. All Americans and anyone else for that matter should have the right to own a weapon to keep their family safe. Every American should not have the right to have a personal H Bomb they can drop on their neighbor if they take their parking spot on the street or hit their mailbox.

    Z
     
  9. Ritual

    Ritual New Member

    Arms control can be achieved by other means outside of gun laws.

    And no the founding fathers would not want gun control even with the weapons of today. The whole idea was to ensure the people the right to protect their own freedom. Back then they had cannons and rockets. Weapons were fairly destructive even then. It was the core idea that "The people should always have the right to arm and protect their freedom and security no matter what".

    It is no different with modern era weaponry. Iraq fought the US with modern weapons, and we rolled over them easily, while still sparing the majority of their lives.

    So you make no argument that it is an impossibility to have no arms laws.
     
  10. Bleys

    Bleys Phoenix Takes Flight Staff Member

    The founding fathers were not in consensus on the meaning of "arms." And the various States who ratified the constitution along with their own State constitutions differed on the applied meaning.

    Black's Law Dictionary defines the word arms as "anything that a man wears for his defense, or takes in his hands as a weapon. A very limited definition.

    This lends credence to your arguments Ritual in that Madison himself believed that it was an "anything goes" interpretation. However, the various states narrowed or expanded on the 2nd amendment in their own constitutions.

    Source for both quotes can be found - here Still fairly liberal interpretations but the caveats are already beginning.

    And when we get right down to it we are really talking about moot points here. As I noted in my original post because the Congress has enacted laws, specifically '34 and '68, which have been held to be constitutional by the one body with authority to say otherwise, it's a done deal, game over - we can only protect those gun rights we still have.

    B.
     
  11. Ritual

    Ritual New Member

    When you are at the point you are arguiing over the definition of words, you are just looking for a way to try and find a way around what it really means.

    We all know what "bear" and "arms" means.

    Samuel Adams: "The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
    -- During Massachusetts' U.S. Constitution Ratification Convention, (1788.)

    Benjamin Franklin: "They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
    -- Historical Review of Pennsylvania, (1759.)

    Thomas Jefferson: "No free man shall ever be debarred the use of arms."
    -- Proposed Virginia Constitution (1776,) Jefferson Papers 344, (J. Boyd, ed. 1950.)

    John Adams: "Arms in the hands of individual citizens may be used at individual discretion... in private self defense."
    -- A Defense of the U.S. Constitutions of Government of the United States of America (1787-88.)

    James Madison: The Constitution preserves "the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
    -- The Federalist #46.

    Thomas Paine: "...arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property... Horrid mischief would ensue were the law-abiding deprived of the use of them."
    -- Thoughts on Defensive War, (1775.)


    Richard Henry Lee: "A militia when properly formed is in fact the people themselves...and include all men capable of bearing arms...To preserve liberty it is essential that the whole body of the people always possess arms..."
    -- Additional Letters From the Federal Farmer 53 (1788.)

    George Mason: "I ask, sir, what is the militia? It is the whole people...to disarm the people is the best and most effectual way to enslave them."
    -- During Virginia's ratification convention, (1788.)


    These are all people who created the US Constitution.


    Dictionary definitions:

    bear - To hold up; support. -or- to transport from one place to another.

    arms - A weapon, especially a firearm: troops bearing arms; ICBMs, bombs, and other nuclear arms.

    militia- An army composed of ordinary citizens rather than professional soldiers.


    From the 2nd Amendment of the United States Constitution: "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."


    Ok now that we know the gun laws are unconstitutional, why havent they been repealed?
     
  12. Bleys

    Bleys Phoenix Takes Flight Staff Member

    Did you read any of my posts? In a nutshell - Congress passed gun laws which the Courts have found to be constitutional. Like it or not, agree with it or not, they did. We can only seek to regain those rights through future legislation and court appointments.

    B
     
  13. tablet

    tablet Premium Member

    I’m sure that those who created the US Constitution in the first place are well aware of the advancement of weapons!! They have imagination, sci-fi books they sure thought of grenade, laser! I’m sure they saw the danger, but they went ahead and created the US constitution anyway because “freedom” and “liberty” override their knowledge of future weapons. They did not think twice, because freedom and liberty was/IS important to them and to all people, something that we all must defend and protect at all cost regardless of our advancement in weapons. We all have rights to bear arms but there’s also law where we MUST respect others, respect the law and not go and kill other is there not a law for that as well?
     
  14. blue

    blue Premium Member

    and you can- if properly licensed- purchase and bear any of these banned arms so technocly the 2nd still stands- unfortunatly it said nothing about licensing limits
     
  15. Ritual

    Ritual New Member

    But it also does not justify how they can tax weapons. That is infringement.

    The government can only tax people as a whole.


    "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

    Are there no good lawyers in the UNited States? No honorbable judges?

    I cant see how these things ever get passed. Were we taken over by Russia? Germany? What is the deal, are the people appointed really this corrupt?
     
  16. Bleys

    Bleys Phoenix Takes Flight Staff Member

    Courtesy of the 16th amendment...

    The Feds, the States and local municipalities have been employing excise, income, property, etc. taxes since revolutionary times. You should read A History of the US Tax System - it's a great read.

    As for whether Congress has the legal authority to create laws imposing such taxes - yes, they do courtesy of the 16th amendment. The 16th waived the requirement of apportionment of taxes. It allowed Congress the legal authority to lay and collect taxes on whatever source they deemed appropriate. Some of their favorities: guns, alcohol, gas and cigarettes.

    I appreciate your questions on this - keep em coming if you have them.

    B.
     
  17. Ritual

    Ritual New Member

    16th Amendment - The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

    Actually the 16th Amendment does not allow them to collect taxes on weapons for example. It only allows the government to collect taxes on their income.

    I am not sure how taxing of arms is not considered infringement to the 2nd anyways, nevermind the 16th.


    dictionary definition

    infringement - A violation, as of a law, regulation, or agreement; a breach. -or- An encroachment, as of a right or privilege.


    Now as far as I am concerned, common sense tells me that taxing weapons is an infringement on the 2nd amendment.


    Also


    There are numerous laws that take firearms from felons and domestic violence abusers. I dont disagree with the ethics, but these laws are also unconstitutional.

    Making these laws is allowing people to violate or infringe their second amendment which is not allowed. Not unless we strip their citizenship and all of their rights.
     
  18. Bleys

    Bleys Phoenix Takes Flight Staff Member


    Actually it does. As I noted before prior to the 16th amendment the US applied excise taxes to various items, including wages or income derived from a profession. The taxes on this income was called an excise tax. Now remember this is before the 16th. The few people that found themselves liable for these taxes tested the Courts and the Courts found them to be constitutional. Once the 16th was enacted it merely expanded the definition to "whatever source dervied" which meant whatever Congress dictated. That is why tips are now taxed, unemployment compensation and social security, even though the latter two technically have already been subject to federal taxes once before.

    The ugly truth.

    Couple of cases that you really need to look at - Pollock [v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895) and Brushaber. If I get a chance I'll find the actual cases in the archives. The Pollock case involved an individual who questioned the constitutionality of excises taxes imposed on his income - he lost. The Brushaber case was a challenge to the 16th - he also lost.

    B.
     
  19. Ritual

    Ritual New Member

    THat is a right preserved to the States (taxing cigarettes and alchohol).

    THe 16th amendment only gives them the right to tax people's income. I am not sure how they said any tax prior to the 16th amendment was constitutional, it definatly was not.

    The 10th amendment says The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    So this would mean that only the States can tax things like alchohol and tobacco, not the federal government.



    Taxing arms is totally different because there is a constitutional right to keep and bear arms. There are no rights to smoke cigarettes or drink alchohol. THat is for the State to decide. The argument would be wether tax on arms is an infringement.

    I would say it was because you would be in violation of law if you keep and bear arms without paying taxes on them, which is unconstitutional.

    There are certain lawyers that are called "Constitutional lawyers". I am not sure why not one of them has ever petitioned the government for grievances caused by these laws.

    I think the Constitution should remain the supreme law of the land, and the more it is spit on, it negates the point of having a Constitution at all. Just on principal I think all of these laws should be repealed.

    THere are at least 3 or 4 that I can think of. The 1934 National Firearms Act. Domestic Violence Prevention Act, or Violence against women prevention act (cant remember the exact name). Assault Weapons Ban. There are a few more that I cant remember.

    There is no part of the Constitution other then the 2nd amendment that is entirely being crapped on. People lobby for gun laws when gun laws themselves are unconstitutional in any shape or form. Sure maybe criminals have guns and maybe tragedies happen, but i guarantee most of these people are blind that not only are there criminals, but entire armies waiting to conquer the United States outside of our borders. And the criminals are always going to be able to make and get weapons, if you make it illegal for people to not always having the right to bear arms, there are going to be even more tragedies.

    Maybe I would be better served trying to petition the government and exercise my constitution right for redress of grievances. Too bad I have no idea how to go about doing that. Maybe I can start an Ignorance Denied Research Project on how to do so.

    Or hire an attorney, but I wonder if I can do it myself.
     
  20. Bleys

    Bleys Phoenix Takes Flight Staff Member

    See my above post - they can and do. The current federal tax on cigarettes is around 40 cents a pack.


    US v. Miller 1939 This case involved the constitutionality of right to own a shotgun and constitutionality of whether the government could institute an excise tax in the form of a stamp. The Feds won.

    They do and they always lose. No reputable lawyer will touch a "protestor" case anymore - the courts levy fines now for filing frivolous arguments. And yes, the legality of taxes, any taxes, is considered a frivolous argument.

    The constitution is the supreme authority and all of these laws have been found to be constitutional. We may not agree with the Courts decisions but this is how our founding fathers wanted it.

    Now you are preaching to the choir. I am a lifetime gun owner and don't plan on giving them up ever, under any circumstance. But I am currently focused on rectifying these "bad" decisions and getting them changed through new legislation. We are seeing that now with the assault rifle ban expiring - woo hoo. In Florida they just passed a new law that allows homeowners to actually defend their property rather than flee.

    Change in coming, but it will be very slow.

    B.