The Instigator
noah364
Pro (for)
Losing
3 Points
The Contender
Subutai
Con (against)
Winning
18 Points

The Second Amendment does NOT protect the individual's right to Bear Arms

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Post Voting Period
The voting period for this debate has ended.
after 4 votes the winner is...
Subutai
Voting Style: Open Point System: 7 Point
Started: 6/21/2013 Category: Politics
Updated: 4 years ago Status: Post Voting Period
Viewed: 1,417 times Debate No: 34949
Debate Rounds (3)
Comments (1)
Votes (4)

 

noah364

Pro

I will be arguing that the Second Amendment to the US Constitution does not protect the random individual's right to bear arms.

For reference, I will post the exact wording and punctuation of the Second Amendment, as ratified by the United States Congress.

"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."

The Supreme Court interprets this as giving any US Citizen the right to own and use arms, and upon brief inspection, many tend to agree with this definition. However, the Supreme Court appears to completely ignore the first four words, "A well regulated Militia." The obvious intent of the amendment is to allow the people to rise up in rebellion, should the government ever become tyrannical and unjust. While this cause is noble enough, it by no means says that any random person is allowed to buy and own a gun. The government may allow guns to be purchased by civilians for use in hunting, target practice, etc., but it's not a constitutional right. A single person with enough firearms to start World War III isn't a "well regulated militia," and neither are a collection of untrained, unofficial individuals who own firearms. The National Gaurd is, in a sense, our "militia," because it gives the power to individual states to start a civil war and rebel against the federal government. And, therefore, the federal government should have no right to take away the right of the men and women of the National Gaurd to bear arms, as it would allow the federal government to do whatever they want without fear of rebellion or an uprising.
Subutai

Con

I will begin with astatement of the Second Amendment:

"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."[1]

First, we need to define what a militia is. The U.S. Code, Title 10, Section 311 defines it as:

"...all able-bodied males at least of 17 years of age and under 45 years of age who have [made] a declaration of intent to become citizens."[2]

In addition, the founders of the Constitution meant for the militia to have arms provided by themselves, and not the government. This indicates two things: One, that the individual must have access to guns, and two, that the militia is a private, not federal institution that runs on private government.[3]

This flows into the argument of whether or not the Second Amendment is an individual right or a collective right. It is commonly assumed by constitutional scholars that amendments 1-9 are relegated to the people, while only amendment 10 is relegated to the states.

It is necessary to look at the Tenth Amendment:

"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."[4]

If the Second Amendment was more of a collective right, it would have been more likely to have appeared in the context of the tenth amendment. While there is more than enough evidence to support the individual rights position, there is not even one bit of evidence that the Second Amendment was intended exclusively for the protection of the states and not the individual.[3]

Looking at something less abstract than a debate on individual and collective rights, let's see the application of the Second Amendment both in English Common Law and in the Early Government.

To begin with, the individual's right to bear arms has been a feature of English Common Law for over a millennia. Sir William Blackstone comments: "Of the absolute rights of individuals: 5. The fifth and last auxiliary rights of the subject... is that of having arms for their defense..."[3][5]

Beginning with Alfred the Great in circa 870, English Law required, "every able-bodied male citizen of the kingdom... to arm himself at his own expense." Mary Tudor, the daughter of Henry VII, circa 1550, required, "the citizen militia to have firearms..."[3][6]

These same principles were repeated in America. "In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and, in 1644, it imposed a stern 6 shilling fine upon any citizen who was not armed." America, even after its independence, relied heavily on English Common Law for writing the Constitituion, and major components, including the Second Amendment, are based almost solely on English Common Law.[3][7]

The founders supported the individual rights position as well:

1. 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."

2. Samuel Adams: "The said Constitution shall never be construed to authorize Congress to … prevent the people of the United States who are peaceable citizens from keeping their own arms."

3. Patrick Henry: "...the great object is that every man be armed…. Everyone who is able may have a gun."

4. George Mason: "...to disarm the people -- that was the best and most effective way to enslave them."

5. John Adams: "...arms in the hands of citizens may be used at individual discretion... [for the defense of the nation, the overthrow of tyranny or] private self-defense."[3]

James Madison, the father of the Consitution, has this to say about the interpretation of the Second Amendment: "...the advantage of being armed, which the Americans possess over the people of almost every other nation." He goes on to say that to critcize those other countries by saying: "...that are afraid to trust the people with arms."[8]

Many more founders and commentaries by other noted people go on about the individual right to bear arms is protected by the Second Amendment.

The Early Congress seems to agree with this view, as they are the ones who defined the militia to be all able-bodied males. When Congress spoke of the militia, they spoke of a traditional concept of an armed populace, a one where every citizen was capable of bearing arms. Further, it was not to any formal group, such as the National Guard. It is from this militia, essentially an armed citizenry that appropriate measures might create a "well regulated militia" of individuals trained in their duties and responsibilities as citizen owners of firearms.

The Early Courts further support this view, ruling in a 1837 case about the constitutionality of a Georgia law forbidding the sale of pistols (Nunn vs. State of Georgia), says:

"...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, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."

Even the Fourteenth Amendment backs this up:

"...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."[9]

An example of how this applies to the Second Amendment's statement on individual rights is the Black Codes - laws enacted by southern legislatures following the Civil War that placed resitrictions on newly freed African Americans, including a prohibition on their right to bear arms, which would render them defenseless against ever increasing assaults. "Congressman after congressman, including the Senate sponsors of both the 1866 Act and the fourteenth amendment, expressed their outrage at the denial of the freedman's rights to arms and their consequent intention to guarantee that right. In summarizing what it would accomplish, the Act's House and Senate sponsors both cited and employed Blackstone's classification of the right of subjects, stating that these essential human rights were being conveyed."[3][10][11]

To conclude this point, "...the Congress of 1866 [showed] that the fourteenth amendment which they had enacted five years earlier encompassed second amendment rights."[3][10]

In conclusion, the Second Amendment is a statement of individual rights for a privately maintained militia force, a view which is supported by the founders of the Constitution, early Supreme Court cases, and the subsequently ratified Fourteenth Amendment.

Sources

[1]: http://www.law.cornell.edu...
[2]: http://www.law.cornell.edu...
[3]: http://www.guncite.com...
[4]: http://www.law.cornell.edu...
[5]: Blackstone, W. Commentaries, p. 123.
[6]: Gottlieb, A. The Rights of Gun Owners.
[7]: http://www.guncite.com...
[8]: The Federalist Papers, No. 46, p. 243-4.
[9]: http://www.law.cornell.edu...
[10]: Halbrook. The Jurisprudence of The Second and Fourteenth Amendments, p. 21-8.
[11]: Congressman Globe. 39th Congress, 1st Session.
Debate Round No. 1
noah364

Pro

I thank the opposition for accepting this debate.

In no way, shape, or form, is this argument a debate about whether or not it is morally right or wrong to allow the citizens of the United States to own firearms (although it's easy to see my stance on the argument from the first round), but instead on whether or not the interpretation of our forefathers is correct. They define the militia as all able-bodied males ages 17 to 45, a law that is clearly sexist and outdated. There's a reason why people are opposed to the draft. While this may be the official definition of militia, it's a far from a well-regulated one. Every single individual in this nation, ages 17 to 45, doesn't have the training to be able to use a firearm. Not all of them have ranks; not all of them want to. We only have one regulatory measure for the purchase of guns, a gun license, which is easily attained and doesn't affiliate you with any "militia" whatsoever, organized or not. And the supposed right to bear arms doesn't just apply to the young. You could be 90 and still have the "right."

The founders' intent was obvious; we've both already stated that. However, your entire case is brought down by two words. Well regulated. Who's to regulate it? The people? Joe Shmoe from next door can suddenly declare himself a militia officer and go on a rebellious rampage? Who's to regulate it but the states? In order to effectively rebel, yes, you must have guns. And yes, it is in the best interest of the American people to have the chance to rebel. But the Second Amendment specifically states that any person within a militia that is well regulated and organized has the right to bear arms, and not the unorganized hillbilly living by himself in the middle of nowhere.
Subutai

Con

I would like to thank Noah364 for continuing this debate.

To start, I need to define what a "well regulated" militia. At first glance, this appears to be a semblance of a "organized" by the state body of men. After all, a "well-regulated" army hints at central planning.

But in the 18th century, that meant something different. Here is an excerpt of Federalist Paper No. 29, written by Alexander Hamilton: "To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss."[1]

Or a quote from the Journals of the Continental Congress: "That this appointment be conferred on experienced and vigilant general officers, who are acquainted with whatever relates to the general economy, manoeuvres and discipline of a well regulated army."[2]

It is clear from these two passages that a "well regulated army" does not mean that it is run by the state, but rather that the unit is a trained and disciplined one. "Well-regulated", would, in today's terms, be referred to as "well-functioning".[3]

Further, it is not only the organized militia that may carry arms. Looking again at the U.S. Code, Title 10, Section 311, there are two classes of militia:

The classes of the militia are: (1) The organized militia, which consists of the National Guard and the Naval Militia; and (2) The unorganized militia which consists of the members of the militia who are not members of the National Guard or the Naval Militia.[4]

To conclude this point, a well-regulated militia simply means a well-trained militia, and the term "militia" in the Second Amendment encompasses both the organized militia and the unorganized militia.

However, there is still one more problem that needs to be addressed - that is, those that aren't covered in the definition of "militia".

To start, originially, yes, women did not have the right to bear arms as they were not full citizens, nor were they covered under the definition of militia. However, the nineteenth amendment amends this rule:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.[5]

In today's age, women can serve right along men, and this extends the definition ot militia to them also.

Further, the fourteenth amendment gives everyone the immunities and privileges of the U.S. I mentioned in the last round that the fourteenth amendment encompassed second amendment rights, giving all citizens the immunities and privileges of the U.S, both young and old (which covers your point about old people).

To again quote the opinion of the Supreme Court ruling in Nunn vs. State of Georgia:

"...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, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."

So while the militia is important, the Second Amendment does not wholly cover the milita. It covers each individual.

Sources

[1]: Hamilton, Alexander. The Federalist Papers, No. 29.
[2]: http://memory.loc.gov...
[3]: http://www.guncite.com...
[4]: http://www.law.cornell.edu...
[5]: http://www.law.cornell.edu...
Debate Round No. 2
noah364

Pro

I thank the opposition for continuing the debate.

You have made it very clear that a well-regulated militia can also be seen as a well-trained one. However, only 14 hours of training are required to apply for a gun license, according to the Department of Consumer Affairs. Hardly enough to consider an individual a well-trained militiaman. Furthermore, as soon as you get your license you are not required attend classes in any way beyond renewing your license. According to www.benning.army.mil, (exact URL: http://www.benning.army.mil...#), BASIC combat training lasts 10-26 weeks for infantry. That's well trained and well organized, not two school days' worth of instruction. Furthermore, to quote the Iron Man movie, it's not a "ready, fire, aim" business. It's preposterous to think that the 2nd Amendment gives people the right to bear arms on the premise that they have the potential to become a well-trained part of a militia. I also have the potential to become the President. That doesn't mean I should be given a White House, no matter what Alexander Hamilton thinks.

A collection of individuals with a minute amount of training romping around with their firearms in hand in neither a well-regulated militia nor a well-functioning one. Until such a time comes as all these individuals band together to function well and efficiently on behalf of the people, not a single one of them is protected under the second amendment.
Subutai

Con

I would like to thank Noah364 for this debate.

My opponent's new argument seems to rely solely on one principle - that the Second Amendment only applies to a well-trained militia. However, while this was the purpose of the Second Amendment, nowhere is it indicated that the right to bear arms only applies to members of a well-trained militia.

Let's look at the Second Amendment again:

"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."[1]

It is easy to see from this that the Second Amendment, while intending to protect America by allowing for a "well-regulated" militia, it is the "right of the people" to bear arms that shall not be infringed, not the right of solely a well-regulated militia that is not to be infringed.

To better illustrate this idea, let's look at the original version of the Second Amendment:

"The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."[2]

It is clear that it is the right of the people, and not solely the militia to the Second Amendment.

Basically, my argument stands on two points here:

1. Firearms are property. Therefore, we have an unalienable right to it as long as it does not conflict with the principles of life and liberty.
2. My opponent cannot provide any evidence (from the founders or otherwise) that the people's right to firearms are contingent on the existence of well regulated Militia.

In other words, my opponent cannot prove that the Second Amendment only applies to the militia. Therefore, it is unreasonable to assume that the Second Amendment only protects the "well-regulated" militia's right to bear arms.

But that still leaves one final question unresolved. What is "the people". Since the rest of amendment 1-9 are worded so that "the people" refers to each individual (i.e. an indidivudal right), it is necessary to state that the Second Amendment regards the people as each individual and is an individual right. For example, "'The people' in the Fourth Amendment obviously refers to an individual right. (The phrase 'in their persons' means people themselves [their bodies] cannot be unreasonably seized or searched.)"[3]

Therefore, the Second Amendment is an individual right, and this case is strengthened by the Fourteenth Amendment (argued in the two previous rounds).

To conclude my argument, my opponent relies only on emotions, saying things like "...only 14 hours of training are required to apply for a gun license" to make his argument. However, he provides no proof that the Second Amendment only applies to a well-trained militia.

All and all, the Second Amendment was phrased and interpreted to give the people (the unorganized militia) the right to bear arms, and this is confirmed by the Fourteenth Amendment. The Second Amendment is an individual right, and applies to everyone who is a U.S. Citizen, as protected by the Constitution. The Second Amendment does protect the individual's right to bear arms.

Sources

[1]: http://www.law.cornell.edu...
[2]: http://www.guncite.com...
[3]: http://www.guncite.com...
Debate Round No. 3
1 comment has been posted on this debate.
Posted by JustinAMoffatt 4 years ago
JustinAMoffatt
First off, thank you both for being so respectable to each other. It's nice to see two opposing viewpoints clash without animosity. I, sadly, can not vote until I have completed 3 debates. However, I would like Con to know that they would have won my vote. You both tied, as far as conduct goes, as with spelling and grammar. However, from the first round of argumentation, Con established that 2nd amendment rights applied to the individual. This point was never refuted by Pro. Good round. I look forward to seeing both of your work in the future...

And possibly refuting it ;)

God bless.
4 votes have been placed for this debate. Showing 1 through 4 records.
Vote Placed by Guy_D 4 years ago
Guy_D
noah364SubutaiTied
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Reasons for voting decision: Pro didn't come close to winning this debate. Con did a great job explaining and supporting his argument.
Vote Placed by A.WitherspoonVI 4 years ago
A.WitherspoonVI
noah364SubutaiTied
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Reasons for voting decision: I left with an understanding that the Second Amendment was intended for Militias and thus Pro had more convincing arguments. However Pro's Conduct, Sources, and grammar were all well below what I expected.
Vote Placed by Juris_Naturalis 4 years ago
Juris_Naturalis
noah364SubutaiTied
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Reasons for voting decision: Con had better grammar and sources. The supreme court has already ruled that the 2nd gives the right to bear arms. So pro set himself up to fail.
Vote Placed by 1Historygenius 4 years ago
1Historygenius
noah364SubutaiTied
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Reasons for voting decision: Con was able to establish with better arguments and sources how it does protect the right to bear arms. It liked mainly his property argument.