supreme court wrong: no individual right to a gun versus state
supreme court wrong: no individual right to a gun versus the state
"Though state militias eventually dissolved, for two centuries we had guns (plenty!) and we had gun laws in towns and states, governing everything from where gunpowder could be stored to who could carry a weapon—and courts overwhelmingly upheld these restrictions. Gun rights and gun control were seen as going hand in hand. Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia. As the Tennessee Supreme Court put it in 1840, “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”
"For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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 courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon."
Secondly, many of my sources are links through the pro-gun site, guncite.com, this is for sheer expedience, as they have gathered over the years much evidence, rather than link to books or reports that may be out of print, guncite has copied them in complete form to each of the relevant links. By no means is this my only source, but it is a secondary source of importance.
For openers, I will start with the Bill of Rights, and quote several of the first 10 Amendments to the Constitution of the United States of America.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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 right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
In Articles I, II, IV, IX, and X the phrase 'of the people' , or 'to the people' appears. By the opinion of my opponent, only in the 2nd Amendment does this phrase not mean the individual. I doubt very much my opponent would claim that the individual has no right to speech or religion as promised by the 1st, or that the individual has no right privacy as per the 4th. No, in each other case, 4 of the 10 amendments I might add, the phrase means individual but in my opponent's mind, and the minds of many like them, not in the case of the 2nd.
Why, a critical thinker must ask, does the phrase refer to the individual in every other case, but not in this one? The reply almost always comes from the same concept, a qualifying remark in the beginning, 'A well regulated militia'. So of course we must ask what this means, and what it meant at the time.
To start, let us end the idea that well regulated meant what modern anti-gun people would like it to mean. From [1,3] we learn that the term well regulated militia refers to a militia that is well kept, and equipped.
"The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. "
What about the militia? Who was the militia?
Well the shortest answer comes from George Mason who said :
"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." " Speech in the Virginia Ratifying Convention, June 14, 1778
Richard Henry Lee agreed:
"A militia when properly formed are in fact the people themselves" and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms" The mind that aims at a select militia, must be influenced by a truly anti-republican principle." " Letters From the Federal Farmer to the Republican, Letter XVIII, January 25, 1788
Of particular interest is George Mason, his quote should not be taken lightly as he was the actual co-author of the 2nd Amendment.
We have this far established that the militia is the whole of the people, and the term 'well regulated' means properly equipped. It stands to reason that if the militia is the whole of the people, then the term 'the right of the people to keep and bear arms' must refer, regardless of context to the people. But as individuals, or as an organized militia?
The answer lies in the second part, 'to keep and bear', the individual in the militia was expected to maintain his own weapons and keep them, ever at the ready, and in good working order.
Logically it follows that the individual must be the entity to which the right to keep and bear arms applies. If the right wasn't an individual one, why choose to use the same wording used four other times to refer to the individual. More to the point if the right wasn't held by the individual, what purpose would it serve to codify it as law?
Keep in mind the Bill of Rights entire purpose was a trade off by the Federalists to the Anti-Federalist movement, a guarantee of rights to be held by the people against the government. The Bill of Rights doesn't grant any rights to anyone, but rather prohibits the government from encroaching on said rights. [5,8] The supreme court simply upheld that the right is pre-existing, and protected by the 2nd Amendment. [10,11,12]
Unused sources, [2,6,7] are external perspectives, I provide them for clarity of depth regarding the issue at hand.
Source 1 : http://bearingarms.com...
Source 2 : http://www.guns.com...
Source 3 : http://constitution.org...
Source 4 : http://www.guncite.com...
Source 5 : http://guncite.com...
Source 6 : http://wiki.monticello.org...
Source 7 : http://www.seraphicpress.com...
Source 8 : http://spot.colorado.edu...
Source 9 : https://www.nraila.org...
Source 10: http://www.awesomelibrary.org...
Source 11: http://guncite.com...
Source 12: http://www.guncite.com...
ask any run of the mill libertarian and he will tell you the bill of rights is an indictment against the federal government. why does the second suddenly apply to the states?
the only way it could is if it was incorporated as a civil right by the 14th amendment. if you have to resort to that, you are basically admitting that the amendment doesn't guarantee rights on its own merit as suggested.
even if you used it, plus the 14th amendment guarnatees only the most fundamental of rights, and when states are wanting a say in how to deal with gun violence, i dont see it as such a fundamental of a right like something like speech.
con says "the people" indicates it meant every individual in existence. the problem is the bear arms clause was modified by the militia clause. that would indicate that every individual in the militia is protected.
con says the mason quote says the people of the militia were everyone. that's the point though, the militia was only everyone usually cause that's what the states dictated. if the states dont dicate everyone is in the militia, then they aren't protected. plus as a last thought, if you were to protect only those traditionally in the militia, you would only be protecting males as females werent included. does that mean the amendment only protects males?
con just glances on touching on the "bear arms" phrase of hte amendment. as cited in the opening post, bear arms is a militia term, and even guncite says so. so, taken together, all of the clauses taken together of the amendment protect state militia rights.
con asks why even codify the amendment if it doens't protect the individual. that's easy, to protect state militia rights.
con ignores that the history of hte second amendment jurisprudence found that the amendment protected militia rights as cited in the opening post, not individual rights. how does history suddenly get it wrong but we are to trust someone interpreting it hundreds of years later?
Warren Burger may have considered it 'a fraud on the American public' but given the very words of the men who were there, and who wrote the document. Both Madison and Mason agreed the public were the militia, but Madison the man who was the primary drafter of the Bill of Rights claimed that the purpose of this bill was to protect individual rights. No further arguments need be made, the man who is primarily credited with the 2nd Amendment, in fact all of the first ten, was drafting them to protect the individual's rights, not collective rights. Perhaps if Justice Burger had read all of the Federalist and Anti-Federalist papers he would have had a better understanding.
I don't personally think more proof is needed, both the men who drafted the document claim it is about individual rights, but let us look at the others, those men who were around the issue at the time, may have thought.
"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."
"... string of amendments were presented to the lower House; these altogether respected personal liberty."
Two more, of the literally dozens of men, who presided over the states ratification of the Bill of Rights proclaiming that the rights it protects are individual rights. In almost every case, the men who were responsible for the Bill of Rights, passage or writing, agree that these protect the individual. Proving every single link my opponent provided in their opening arguments to be based on personal opinion rather than the political fact of the time. Essentially every existing court case, was based on an under-educated opinion by people who had no frame of reference or familiarity with the subject matter.
On to my opponent's round 2 Comments, They open up with a false dilemma, "the bill of rights is an indictment against the federal government. why does the second suddenly apply to the states? the only way it could is if it was incorporated as a civil right by the 14th amendment. if you have to resort to that, you are basically admitting that the amendment doesn't guarantee rights on its own merit as suggested. "
First the Bill of Rights doesn't 'guarantee' any rights, it protects from federal incursion a right that already existed. Most states already had some version of this on their own constitutions. [16, 17, 18] The outcome of the Civil War, changed a few things, one of which is it prohibited states from acting against the federal government in matters of civil rights. So yes the 14th Amendment did change something, just not what you think. It was possible before the 14th for a state, in its own constitution, to have no provision for arms at all, afterwards the 14th made the federal provision the guiding stone for the states. In other words, the right existed and the federal government couldn't impose upon it, many states had a similar provision in their own constitutions, but they could still enact provisions of their own, until passage of the 14th. Now keep in mind that some restrictions would have been in violation of the state's own constitutions as well.
Further from my opponent : " , i dont see it as such a fundamental of a right like something like speech. "
That is nothing more than your opinion. Many, as much as 1/3 of the population of the United States, do see it as a fundamental right. More importantly the founders of our nation did see it as a fundamental right. As such, when the constitution was written, it was a fundamental right.
The militia clause is clearly not a modification clause, but an explanatory clause, it gives one of the reasons the limitation exists, not a precursor for who is protected. The who is protected part comes in the next section. Again, a militia being protected isn't a big deal, there would be no reason to have a 2nd Amendment if the protection is for a militia. [19,20,22]
As to the history of 'second amendment jurisprudence' , yes I do ignore these claims, outright. Just as every single one of them ignored what is obvious by simply reading the history of the founding of the nation, and those men who were there when the drafts of the Bill of Rights were made. Judges can, and often do, get it wrong, which is an important consideration when discussing the 2nd Amendment. My opponent makes the following, interesting argument, one with which I wholly agree: "how does history suddenly get it wrong but we are to trust someone interpreting it hundreds of years later?" I do not trust someone today to interpret that which was not only interpreted but openly stated by the men who wrote it, as I said above, and as Grayson said, these are individual rights.
Source 13: http://languagelog.ldc.upenn.edu...
Source 14: http://www.americanbar.org...
Source 15: http://bearingarms.com...
Source 16: https://www.cga.ct.gov...
Source 17: https://malegislature.gov...
Source 18: http://sos.ga.gov...
Source 19: http://tenthamendmentcenter.com...
Source 20: http://legal-dictionary.thefreedictionary.com...
Source 21: http://papers.ssrn.com...
Source 22: http://www.constitution.org...
thanks to my opponent for being well informed on this subject.
"to bear arms" as unmodified refers to the milita as con seems to accept with hesitation. the only reason it has any modification suchas "the right of hte people" is because a sentence must have a predicate and a subject, something must be doing something. that is not the sort of modfication that clarifies something as not militia related.... such as "to bear arms against your neighbor when he attacks you". as far as the "the people" being an individual right in every other case, this has already been discussed... and bottomline, it is an individual right only so far as you are in the militia as everyone happened to be. note, they only happend to be in the militia, not mandatory and the state was the decider.
i can't find the quote from madison in the link, if that's what i'm suppose to be looking for. i shouldn't have to read a bunch of articles to get opponents points they should be up front and center presented. but regardless, we have those quotes from mason which as discussed could be viewed as militia related, such as everyone being in the miitia onlybecause everyone happend to be in the militia, not because they had to be and it was up to the state. as to the other quotes, im sure you can find some strong evidence that some thought it was an individual right.... but you will find plenty that thought it was a militia right, such as even that mason quotes. im sure if you had a court case of what an amendment means with even the framers being the judges, you would have a difference of opinion.
if con thinks the 14th amendmnet is sufficient to give rights for guns, that too his just his opinion. that's all one can ask in whether an issue is a fundamental right, opinions. but it could just as easily be a right such as the right to privacy created via that amendment with no bearing on the bill of rights... it doesn't have to rely on the second amendment to be created as a right. and id argue it isn't relying on it cause the second amendment protects the state militias only.
con ignores the history of jurisprudence as if the amendment meant one thing to courts for hundreds of years, until modern scholars finally saw the light and what the history of jurisprudence didn't see? id trust them over
I have been accused of ignoring the 'history of jurisprudence' more than once in this debate, and honestly I have glazed over, and outright ignored it. With good reason, I hate arguing opinions of a court that has so often made horribly wrong and immoral decisions, Dred Scott for example, but let us start with the oldest case on the books.
United States V. Cruikshank  "The Supreme Court decision held that these rights are not granted by the constitution and do not depend upon it for their existence. " That is that these rights pre-exist. " 
""With regard to those acknowledged rights and privileges of the citizen, which form a part of his political inheritance derived from the mother country, and which were challenged and vindicated by centuries of stubborn resistance to arbitrary power, they belong to him as his birthright, and it is the duty of the particular state of which he is a citizen to protect and enforce them, and to do naught to deprive him of their full enjoyment. When any of these rights and privileges are secured in the constitution of the United States only by a declaration that the state or the United States shall not violate or abridge them, it is at once understood that they are not created or conferred by the constitution, but that the constitution only guaranties that they shall not be impaired by the state, or the United States, as the case may be." 
So the first SCOTUS case ever, upholds an individual right to bear arms.
Presser v. Illinois  Holds that the militia clause can not be enforced upon people to keep them from arms. 
Miller v. Texas  Addresses the issue of the 14th Amendment applying to the 2nd Amendment.
What about those cases for your jurisprudence requirement? The funny thing is I have often seen these cited, by both sides as anti-gun cases, but if you read the decisions, the only thing they say is that the right is not granted by the constitution, but pre-exists, and that the right is covered by the 14th.
And we find that in the 1886 case, SCOTUS upheld that being in a militia is not a requirement as the right is an individual right.
"if con thinks the 14th amendment is sufficient to give rights for guns, that too his just his opinion. that's all one can ask in whether an issue is a fundamental right, opinions. but it could just as easily be a right such as the right to privacy created via that amendment with no bearing on the bill of rights... it doesn't have to rely on the second amendment to be created as a right. and id argue it isn't relying on it cause the second amendment protects the state militias only. "
You keep missing the point, none of the Bill of Rights gives, grants, or otherwise creates a right. What they did, is protect existing rights from federal tampering. After the 14th was passed, which forced the states to acquiesce to the rules that the feds had. Prior to the Civil War, each state was considered an independent nation, afterwards we were one singular nation.
I ignored the history of jurisprudence in these cases as it wasn't necessary to make the point, a judge can be wrong, and often is. The history of the men who created the nation, and wrote the document, and their subsequent writings and arguments for the ratification of the Bill of Rights, is sufficient to show the intent. The 2nd Amendment is an individual right. However as you continue to argue case law from the 1900s I figured I might show you what courts closer to the event thought and saw. Rulings prior to the civil war are mostly invalid, as they followed a different set of rules, one for the states and one for the federal government, in the first three cases, the oldest I could find at SCOTUS, we find that the courts did uphold that the right is an individual right that pre-exists the constitution and is protected against federal tampering.
Thank you for the debate, it was fun.
Source 23 : http://www.constitution.org...
Source 24 : http://caselaw.findlaw.com...
Source 25 : https://supreme.justia.com...