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supreme court wrong: no individual right to a gun versus the state

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Voting Style: Open Point System: 7 Point
Started: 10/22/2015 Category: Politics
Updated: 2 years ago Status: Post Voting Period
Viewed: 454 times Debate No: 81366
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supreme court wrong: no individual right to a gun versus the state

the supreme court recently said there is an individual right to a gun versus the state.

historically the phrase "bear arms" is a military term, and taken altogether, the second amendment protects militia rights, not individual rights.

"A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum"

Read more:

"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.”

"The NRA was founded by a group of Union officers after the Civil War who, perturbed by their troops’ poor marksmanship, wanted a way to sponsor shooting training and competitions. The group testified in support of the first federal gun law in 1934, which cracked down on the machine guns beloved by Bonnie and Clyde and other bank robbers."

"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."

"Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”

"But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (
Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)"

"Until recently, the judiciary treated the Second Amendment almost as a dead letter. Many courts concluded that citizens have no constitutionally protected right to arms at all, and the federal courts never invalidated a single gun control law"

As America grapples with a relentless tide of gun violence, pro-gun activists have come to rely on the Second Amendment as their trusty shield when faced with mass-shooting-induced criticism. In their interpretation, the amendment guarantees an individual right to bear arms—a reading that was upheld by the Supreme Court in its 2008 ruling in District of Columbia. v. Heller. Yet most judges and scholars who debated the clause's awkwardly worded and oddly punctuated 27 words in the decades before Heller almost always arrived at the opposite conclusion, finding that the amendment protects gun ownership for purposes of military duty and collective security. "



I would say that the vast majority of your argument is completely invalid. Your argument focuses on what this nation has thought about the second amendment to the US Constitution since it was written. This takes into no account what the original framers of the constitution had in mind. The Supreme Court exists to pass judgement on the Constitution. It is their job to consider what the original framers of that document had in mind when they wrote the Constitution. The original framers of the Constitution were concerned about national defense when this amendment was proposed. The initial idea was that the delegates wished to prevent the federal government from developing and maintaining a professional army which could one day be used to suppress the will of the people. The debate over this point is incredibly intricate. The original view being espoused by the amendment is that, to prevent the federal government from using an army to crush resistance within the states, each state would be responsible for its own militia. This was originally framed as an alternative to the existence of a federal army, but this was not considered to be a viable alternative to a federal army as experience in the American Revolution had proven local militias to be unreliable. The debate which was playing out in Congress, at the time, was between two now defunct political entities, those being the Federalists and the Anti-Federalists. Those names do, indeed, have a certain implication about their positions in the various arguments which were being debated at the time. It was, basically, an understanding between the two sides that the federal government would have the sole authority to form an army while also not having the right to disarm the citizenry. This was, essentially, what this amendment was about. It really is a problem that this was not explicitly written into the amendment, but there are plenty of examples of the Supreme Court having to read into the intent of an amendment rather than basing their opinion solely upon what is written in the Constitution. One such case is really quite recent. In the case of Obergefell vs. Hodges, in which the court decided that denying same sex couples the right to marry was unconstitutional, it is very easy to see where the justices must decipher the intent of an amendment to rule upon the constitutionality of a law. This case was based upon the 14th Amendment to the Constitution. Nowhere in the actual amendment does it mention anything about either marriage nor does it mention anything about homosexuals. This amendment does specify that a state cannot create or enforce laws which either abridge the privileges or immunities of the citizenry. The court ruled that the ability to marry another person is a privilege which cannot, therefore, be abridged by state law. As a last note to this, the Supreme Court is tasked with interpreting the Constitution. It really cannot get this wrong. Interpretation is always subjective; ergo, what the Supreme Court believes to be the intent of the Constitution, as voted upon by a majority of their justices, will always be considered as correct in the eyes of our government. This why the current Republicans who are lambasting the decision of the court in Obergefell do not really have an argument. To force the Supreme Court to rethink its position on a court case would require a constitutional amendment for which there is a very specific and stringent process. One Supreme Court can take a different view from a previous Supreme Court, and that is why we have seen interpretation change over the years, but neither the citizenry nor the the other two branches of the federal government can force a change to the view of Supreme Court except by constitutional amendment.
Debate Round No. 1


con basically just gave me a lesson on judicial interpretation. he doesn't say why the second amendment says what he thinks it does. at best he said we have to look at hte framers from the intent, but doesn't give any quotes from them. even if he did though, what one person thought is inconsequential to what the amendment says if they are different. and the second amendment seems to protect state militias, not individual rights and i gave my reasons with no proper rebuttal to those reasons.

it is telling that any run of the mill libertarian will tell you the bill of rights is an indictment against hte federal government... so suddently we are to believe the second amendment is against the states?



I addressed your arguments, but I dismissed them outright. I do not need to rebut your argument as, just like I stated, they are completely invalid. You focus almost exclusively on thoughts and opinions about the second amendment which have been developed over the years. Nowhere in your argument do you address why the amendment was created in the first place. This is the only argument which is relevant to a Supreme Court decision. Unlike district and circuit courts, the Supreme Court does not need to use precedence, and they do not need to prove their argument. They are responsible for setting precedence based on their own views. It is impossible to say that they got this wrong, because it is merely their opinion. As I have stated, it does not matter what the amendment says. The Supreme Court is interested in what was meant and in context. I provided you with two links, one of which contained a detailed analysis of the entire debate to create the second amendment. The purpose behind the creation of the second amendment is not in argument. The only argument which has been made is whether or not the states, not the federal government, have the right to ban firearms. On this topic the Supreme Court still has no need to rely upon precedence. They are still able to create precedence. Technically the rights given in the Bill of Rights were all meant to guarantee citizens' rights as they applied to the federal government and none offered any protection of those rights from a state or local government. When debating a case dealing with state or local governments having denied the rights of the citizens, one of the most heavily relied upon amendments is the fourteenth amendment. This amendment created a burden upon the states that they cannot make laws to abridge the rights of the citizens. This amendment was sited by the majority opinion as being the reason why Chicago could not deny its citizens the right to keep and bear arms. This was held in the majority opinion of the Supreme Court in McDonald v Chicago. The legal argument behind this interpretation is, indeed, sound. If you disagree with the Supreme Court's ruling you can only have two arguments by which to do so. The first argument you can take is that the original intent of the second amendment does not guarantee the right of private citizens to keep and bear arms. As I have stated, this point is not in debate. We know what the framers had in mind when creating this amendment, and we know what their intention was. The only other argument that you can make is that the right to bear arms is not extended from the federal to the state governments. The Supreme Court has held that, based on the fourteenth amendment, the right to bear arms is extended to the states as well. You could argue that they did not get this part right, but as I have stated, you would not be correct. When the Supreme Court issues its opinions, those opinions become the precedence for which all future cases based upon similar merits will be decided until such time as the court decides to revisit the issue. To boil down to the heart of my argument I will present four main points. First, the Constitution guarantees the right to keep and bear arms as this was what the framers intended. Second, the Constitution further guarantees that no state government shall abridge the rights of its citizens and guarantees due process of law via the fourteenth amendment. Third, the Supreme Court is the ultimate authority on Constitutional matters, and, as such, cannot be incorrect in their belief. Fourth, only another Supreme Court can rule that a previous Supreme Court was incorrect which literally completely neuters any argument that you could have had. As you did not read my references from the first post, I will list them again and also include additional references to the two Supreme Court decisions which I have cited.
Debate Round No. 2


con relies on the 14th amendment to justify his stance. he doesn't say that the supreme court used that stance which perhaps they didn't. all i'm arguing about anyway is that the second amendment doesn't save gun rights anyway and apparently he is indirectly agreeing with me.

con says we know what the framers had in mind and their intent but he continues to not say either. he basically is not arguing the side he is suppose to be arguing but getting lost in explaining how precedent works, irrelevant to the debate.


I provided you the link to the Supreme Court opinion in Chicago v McDonald. This is the most recent Supreme Court decision on the matter and they did use the fourteenth amendment as part of their justification. DC v Heller is not the latest word on the issue, and the Supreme Court was not wrong there either. What you do not understand is that the District of Columbia is not a state. It does not have a state constitution, and, in terms of the rights afford its citizens, it relies directly on the US Constitution. The Supreme Court has held through both of its opinions, Chicago v McDonald and DC v Heller, that the Federal Constitution affords the citizens of this country the right to keep and bear arms. This is, indeed, what the framers had in mind. If you had read the references that I posted, you would realize that the debate over the second amendment before ratification of the US Constitution bears out that this is what the framers were aiming to do. As I have thoroughly state my position and offered considerable evidence to support it, I will now attack your evidence. In truth, there is not much left that I can do as you have refused to debate any points which I brought up and have offered no evidence to counter my assertions. Your only evidence which you cited was in your first post, so I shall examine this evidence. The only two sources for which you provided a link, so that I can examine them, were and I will start with While I, personally, like this website, it should be fairly evident that this is not a scholarly source of information. Were I writing an essay for a law class, most professors would not accept evidence from politico as being a legitimate source of information. If I were writing an opinion piece for an English class, at this point politico would probably be appropriate enough to be accepted by my professor. Next I will discuss the New Yorker, which is a magazine though this would be one of their online articles. The New Yorker is a slight step up from politico, as it is a peer reviewed journal. The New Yorker, however, still would probably not be considered the best source of information if I was writing an essay for a professor of law. I could probably use it as a source in such a case, but my professor would still want me to cite additional information from legal sources which backed up my assertion. I have, on the other hand, cited two, and will shortly cite a third, Supreme Court decisions as listed on the Supreme Court's website. All three of these sources would be considered as an appropriate legal source of information were I writing for a class on law. The first of the other two references that I cited is less prestigious, clearly, that the Supreme Court's website, but it is still a very reputable source. This reference was to This website was created by Congress to "disseminate information about the United States Constitution on a non-partisan basis in order to increase the awareness and understanding of the Constitution among the American people." This means that this website was created at the behest of the government, itself, to help our citizens understand the constitution. The last source that I cited is less reputable, and I would not likely use it, alone, as a source in a class dealing with law. That source was which describes itself as a "conservative think-tank". It should be noted, however, that this source is just as reputable as politico and probably would be considered slightly more reputable though also slightly less reputable than The New Yorker as it is not a peer reviewed journal. So of the sources of information, I have listed two sources which are more reputable than any source you have listed and one that is no less reputable than your least reputable source. I will close with a brief recap of my argument. The Supreme Court is the ultimate authority on constitutional matters. Interpreting the constitution inherently involves rendering opinions, and, as the ultimate authority, the Supreme Court's opinions carry more weight than any other opinions. We know, as a matter of record, what the framers were attempting to do when they created the second amendment. We know that the founders did not want the federal government to be able to prevent the citizenry from keeping and bearing arms as this was something which was happening in many European monarchies at the time, and they feared the creation of a tyrannical state in the US. The fourteenth amendment was passed to prevent state and local governments from denying fundamental rights to their citizens, disregarding federally guaranteed rights. Using this logic the Supreme Court has decided that the right to keep and bear arms is a fundamental right and is extended from the federal government all the way down to the local governments.
Debate Round No. 3
3 comments have been posted on this debate. Showing 1 through 3 records.
Posted by whiteflame 2 years ago
>Reported vote: logical-master123// Mod action: Removed<

2 points to Con (Sources). Reasons for voting decision: CA: sources.

[*Reason for removal*] Merely stating "sources" does not explain how or why one side deserves source points.
Posted by dairygirl4u2c 2 years ago
i notice you didn't say why.

both debates are open. you are welcome to take the con position.
Posted by POFOdebate 2 years ago
I never thought the opinions of another could be so wrong.
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