The Amazingly Dishonest Professor Amar

[MrBenchley]

Some "enthusiast" trotted this yobbo up here the other day in an attempt to prove that the dishonest interpretation of the Second Amendment that the NRA has been peddling since about 1975 isn't a total load of crap.

The key argument this academic hack had to offer was: ""In 1789, when used without any qualifying adjective, 'the militia' referred to all citizens capable of bearing arms. The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspection — the "militia" is identical to "the people" in the core sense described above. "

What is, of course, the gaudy bit of utter dishonesty in this rubbish is the phrase "when used without any qualifying adjective." IN FACT, the second amendment has quite a fine qualifying adjective "well regulated" that makes the professor's rhetoric both meaningless and used-car-dealer-quality dishonest.

Such is "scholarship" for those who think Mary Rosh is a real scientist.

Why, do you suppose, does the RKBA crowd have to depend on such blatant falsehoods?

[preciousdove]

1. Because it worked with the Fundies...

:shrug:

[MrBenchley]

2. Got it in one

Conrgats!

[Romulus]

3. gee

who are we to believe:

Nationally recognized law professor and constitutional expert?

Or some poster who refuses to answer simple questions asked of him and spouts the same three phrases over and over?

:eyes:

[MrBenchley]

4. So why is he pretending there's no adjective

when there is?

[BullDozer]

5. Oh boy a new play ground

in an attempt to prove that the dishonest interpretation of the Second Amendment that the NRA has been peddling since about 1975 isn't a total load of crap.

You still haven't shown any proof of your ridiculous claim that the Second is not an individual right, like people with useful brains know it is.

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

http://usgovinfo.about.com/library/bills/blusvmiller.htm

While you chew on that you should also ponder:

During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a "bill of rights" that would spell out the immunities of individual citizens

http://www.archives.gov/exhibit_hall/charters_of_freedom/bill_of_rights/bill_of_rights.html

"A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."
--- Thomas Jefferson December 20, 1787

[MrBenchley]

6. And the same old dishonest RKBA shit

So tell us, dozer, why is professor Nutso pretending there's no adjective?

[BullDozer]

13. ...

Perhaps in hopes of make it easier for the mental midgets who keep screaming "collective! right collective right!, it's not an individual right waahhhhhhhhhhh..." to understand.

[MrBenchley]

14. Gee, dozer

You might as well come out and admit he's lying. It's all right.

[BullDozer]

15. Just to make it easier for some

Because some people can't seem to understand that the militia is composed of the people and have difficulty resolving exactly what that means.

http://www.constitution.org/mil/mil_act_1792.htm

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

Are you going to cry that the definition of militia excluded everyone but none white men and people past a certain age?

Well too bad, since there is plenty of existing legislation that would prohibit their exclusion and they are indeed fully included under those laws.

Again from US v Miller:

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

[MrBenchley]

16. So why is professor nutso pretending there's no adjective?

Probably for the same reason you are.

But it's horseshit.

[BullDozer]

17. And again not a fact in the house from your side

I'd say show us again how you arrive at your collective rights determination but I've been asking all week for you to provide some proof in support of your altered world in the first place and you still haven't done so.

[MrBenchley]

18. And again you're dodging the question

Why is professor nutso lyinng about the adjective?

[BullDozer]

20. Can you even follow a thread?

Read exactly which part of your originating post I first responded to. I'm not going to re-school you on well-regulated, even the bradybunch aren't dishonest enough to suggest that the founding fathers, who, having just thrown off the shackles of an oppressive monarchy, wrote the bill of rights included a clause that said more laws were required.

You are beyond desperate now.


I haven't read the book, and I'll guess it's his book you are refering to since you didn't follow protocol and post a link, I don't need to read it to debate what I responded to. Unlike you I know full well what the Second means and what US v Miller means and again unlike you I have shown facts to back that up.

Section 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) 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.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=10&sec=311

If you want to pay Amazon $45 for the book +tax + shipping to me I'll be happy to read it over for you though.

[MrBenchley]

21. So why is professor nutso lying?

Never mind, dozer. I think it's pretty obvious why the RKBA crowd is lying AGAIN.

Now go pretend you're a militia all by yourself.

[BullDozer]

23. Try comprehension sometime you might like it

Now go pretend you're a militia all by yourself.

Wow I guess you don't understand english at all.

Section 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) 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.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=10&sec=311

RCW 38.04.030
Composition of the militia.
The militia of the state of Washington shall consist of all able bodied citizens of the United States and all other able bodied persons who have declared their intention to become citizens of the United States, residing within this state, who shall be more than eighteen years of age, and shall include all persons who are members of the national guard and the state guard, and said militia shall be divided into two classes, the organized militia and the unorganized militia.

http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=1&X=829063230&p=1

[MrBenchley]

24. Dozer, tell us why professor nutso lies

And while you're at it, try telling us how any phrase that goes, "all able bodied citizens" is not speaking of the collective?

"ADJECTIVE: 1. Assembled or accumulated into a whole.
2. Of, relating to, characteristic of, or made by a number of people acting as a group"

I swear, the entire RKBA crowd can't have more than three working braincells among the lot.

OR for that matter, which of these is by any reasonable deifinition, the well-regulated militia referred to in the Second Amendment.

"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."

Now tell us again the second amendment has nothing to do with the National Guard. Or even funnier, tell us that "unorganized" and "well regulated" are synonymous.

("A precision drill team! Look how unorganized they are!")

[BullDozer]

25. Spin that broken record again B

And while you're at it, try telling us how any phrase that goes, "all able bodied citizens" is not speaking of the collective
number of people acting as a group


Citizens being the plural of citizen, citizen being singular, means individual. It's right there. "Number of people" equals individuals.
Grade school grammar was hell for you wasn't it?


(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia."

Now tell us again the second amendment has nothing to do with the National Guard

How can it BE the National Guard when to be included in (2) the unorganized militia you must NOT be a member of the National Guard. Here's a fact, IT CAN"T BE.

How is this collective?

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

http://www.constitution.org/mil/mil_act_1792.htm

[MrBenchley]

26. So why is Professor Nutso lying?

Tell us again how "every" has nnothing to do with collective, dozer. And be sure and wave your espontoon in the air while you do.

[BullDozer]

29. Every-"Constituting each and all members of a group without exception"

OMG look at that-- Each "Being one of two or more considered individually" OMG look individual!


Too late to edit out an irritating bold text tag on that previous post.

How is this collective? It's clearly very individual.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

http://www.constitution.org/mil/mil_act_1792.htm

Cry some more why don't you and see post #20 for my reply to your useless babbling question about Professor Amar, asked and answered.

[MrBenchley]

30. Otherwise known as COLLECTIVE

And here's what you posted in #20: "I haven't read the book, and I'll guess it's his book you are refering to since you didn't follow protocol and post a link, I don't need to read it to debate what I responded to. Unlike you I know full well what the Second means"
Which is obviously now shown to be untrue.

[BullDozer]

37. Where?

Every-"Constituting each and all members of a group without exception"

Look at that-- Each "Being one of two or more considered individually" Look individual!

Try thinking.

[MrBenchley]

40. Here on earth

Now go pout about it to someone who cares. Better yet, be a well-regulated militia all by your lonesome...

[BullDozer]

50. Strength in numbers

I don't have to be by my lonesome I have many to keep me company both under Federal Law and also State Law in WA.

http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=1&X=829155859&p=1

RCW 38.04.030
Composition of the militia.
The militia of the state of Washington shall consist of all able bodied citizens of the United States and all other able bodied persons who have declared their intention to become citizens of the United States, residing within this state, who shall be more than eighteen years of age, and shall include all persons who are members of the national guard and the state guard, and said militia shall be divided into two classes, the organized militia and the unorganized militia.

My participation on volunteer Search and Rescue teams does not place me in the Organized Militia in WA state, I remain a member of the unorganized milita and yes I have to supply all of my own equipment other than a radio and safety equipment related to heliborne operations (although I have procured my own and submit it as required for regular safety inspections) for the Search and Rescue teams.

Support Search and Rescue, Get Lost!

[MrBenchley]

55. And not three braincells in the RKBA bunch

"I remain a member of the unorganized milita"
Which makes you neither a militia all by yourself OR well-regulated.

So I guess now we can see why professor nutso is pretending there's no adjective....

[BullDozer]

63. Next

Which makes you neither a militia all by yourself OR well-regulated.

Without me and the other (under both federal and state law) individual members there is no militia.

OK now that you have clearly been beaten down on collective versus individual you can switch to your even more ridiculous well-regulated argument, even the bradybuch don't try to press that argument and mention it only in passing when they try and lie about the Second Amendment, and even they realize that the militia supplied their own firearms, even the bradybunch aren't dishonest enough to suggest that the founding fathers, who, having just thrown off the shackles of an oppressive monarchy, wrote the bill of rights included a clause that said more laws were required.

You are beyond desperate now.

[Name removed]

69. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MrBenchley]

77. Which makes you neither a militia OR well-regulated.

"the militia supplied their own firearms"
Not even close to true.

[BullDozer]

85. Your phonographic disc is broken, and wrong

Which makes you neither a militia OR well-regulated

A militia of one? No I am a member of the militia, if you would read what has been posted you would know that to be an undisputable fact.

"the militia supplied their own firearms"
Not even close to true.

Try leaving the quote in context
"...even the bradybuch don't try to press that argument and mention it only in passing when they try and lie about the Second Amendment, and even they realize that the militia supplied their own firearms..."

Sorry buster but in the bbgangs postion on the 2nd they state that the milita supplied their own firearms because even they aren't going to argue with the requirements in http://www.constitution.org/mil/mil_act_1792.htm that state "...shall, within six months thereafter, provide himself with..."

[MrBenchley]

93. Which makes you neither a militia OR well-regulated

You can spout your silliness as often as you like, but it's still hooey.

[slackmaster]

7. Jeez, not another "dishonest professor" thread

BELLESILES! BELLESILES! BELLESILES!

:argh:

[MrBenchley]

8. There's nothing BUT dishonest RKBA professors

The entire movement is based on horseshit and hysteria.

[Spoonman]

9. Horseshit and hysteria....LMFAO

You right, your entire movement is based on horseshit and hysteria.

Total misrepresentation from every anti gun group out there is blatant to anyone and everyone that looks at this issue with open eyes.

The real issue is not the guns or the 2nd amendment or the number of fatalities each year.
Soft on the crime and hard on the gun. What a fucking joke!

Prisons with cable TV, law libraries, tennis courts, weight rooms, swimming pools and many other amenities most non-criminal Americans cannot afford.

A perfect example of the failing ideology of "gun control" is Switzerland.

Visitors to Switzerland are astonished to see guns and rifles being carried openly in public -- particularly when there is a "shooting festival" occurring nearby. In fact, Switzerland has more firepower per person than any other country in the world -- yet it is one of the safest places on Earth.

In 1997, there were 87 intentional homicides and 102 attempted homicides in the entire country -- with firearms involved in 91 of the 189 total cases.

Switzerland had a homicide rate of 1.2 per 100,000 population and a robbery rate of 36 per 100,000.

Almost half of those crimes were committed by non-resident foreigners -- whom locals call "criminal tourists."

By comparison, Britain -- which has strict gun control laws -- had a homicide rate in 1994 of 1.4 per 100,000 and a robbery rate of 116 per 100,000.
Although Switzerland has local shooting contests for boys and girls ages 12 to 16, there have been no school massacres in the country.

All males between the ages of 20 and 42 are required to keep rifles and pistols at home for purposes of national defense. Military historians do not doubt that this was a big reason Hitler chose to avoid Switzerland in favor of conquering countries which had strict gun control laws -- as well as registration lists which facilitated confiscation of firearms.

Source: Stephen P. Halbrook (attorney and author), "Where Kids and Guns Do Mix," Wall Street Journal, June 10, 1999.

Now explain to us why the streets of Switzerland are not flowing with blood.

But what's the point in posting anything factual. If it does'nt support your argument it's drivel, even when it comes from the same sources that you use to support your stance (horseshit and hysteria).
You then scream the racist, scum, honky and nazi trash, offend every race and religon out there and expect the world to respect your position.
Your position and attitude demonstrates the biggest racist position on this board, as demonstrated by the thread YOU started trying to disprove it, in which you got your head handed to you on a platter!

Yea, the horseshit and hysteria is clearly demonstrated by someone here, and we ALL know who it is.

Care to try GD again, come on I dare ya to go up there and spout out the same exact shit you spout out down here.

I have a feeling that crowd would take issue with the stereotyping you demonstrate down here.

[MrBenchley]

10. RKBA horseshit and hysteria

"what's the point in posting anything factual."
If you ever did, we might find out. But instead it's the same tired old crap.

And for the record, not only are Switzerland's gun owners and guns strictly registered, but every round of ammo must be accounted for IN WRITING. And guess what else?

"The government wants to revise Switzerland’s gun laws one year on from the worst-ever shooting spree in which a gunman killed 14 people in Zug.
It has opened consultations on a series of measures to tighten control over gun sales and ownership."

http://www.swissinfo.org/sen/Swissinfo.html?siteSect=111&sid=1363061

"offend every race and religon out there"
Gee, spoon, the only people who have been offended are those trying to claim that Ted Nugent is a racist piece of filth.

[Spoonman]

11. And guess what else

And for the record, not only are Switzerland's gun owners and guns strictly registered, but every round of ammo must be accounted for IN WRITING.

That applies only to the military weapons under the system that requires men over 20 to be ready for military service by keeping those weapons in their home.

The article also states;
The strength of feeling on both sides may explain why Switzerland has not rushed to change its gun laws since the Zug killings.

Kind of contrary to the knee jerk shit we see here.

"Gee, spoon, the only people who have been offended are those trying to claim that Ted Nugent is a racist piece of filth."

Try again "the racist RKBA crowd" "RKBA Scum" "RKBA Honky" "RKBA Nazi mentality"

Your words, not mine, now live with them.

[MrBenchley]

12. Who could guess what sort of hysterical horseshit

the RKBA crowd dredges up out of its collective insanity?

By the way....

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=242213

Be sure to go up to GD and tell them Ted's not really a racist piecce of shit.

[dustind]

19. 1st, 2nd, 4th, etc

Who are "the people" in the 1st, 2nd, and 4th amendments? Does the first just grant the right to the media?

Even if well regulated meant what you thought it did. What would that have to do with it being an individual right? It would be a right that is regulated. How can "the right of the people to keep and bear arms" mean the right of the state to raise armies? The 2nd says a militia is important, so the RKBA shall not be infringed.

The BOR recognizes certain inalienable rights that all humans have. The word "people" is used several times in the BOR, each time it refers to people like you and me. If they wanted to say state they would have said "the right of the state". Besides states are banned from raising armies for a reason.

Can you name a single collective right?

[MrBenchley]

22. So why is professor nutso lying?

[556]

27. Just tell us what it means?

Do you honestly think the second is a collective right? If so why are the other 9 original amendments clearly individual rights? Without insulting anyone or anything can you please give us an honest answer? That's all I want.

[MrBenchley]

28. It means that the RKBA movement is based on lies

And that the sort of person who pretends that Mary Rosh is a scientist is the same sort trying to pass off this transparent falsehood is "scholarship.."

"Do you honestly think the second is a collective right?"
Go out and be a well-organized militia all by yourself, and then come back and tell me. It certainly is framed that way in the Federalist papers, and the courts (except for the Emerson nuts) have held that too. The question of individual gun ownership came up during the Massachusetts convention on ratification, and was voted DOWN...the Second was left in its present form.

"why are the other 9 original amendments clearly individual rights? "
#1 is a limitation on Congress....#4 is certainly collective, since it is supposed to extend to all persons (and did until AshKKKroft came along). So are seven, eight, nine, and ten. A right that extends to all is collective. The only individual ones are three (which is limited to soldiers and homeowners) and five and six which extend only to those accused of a crime.

"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. "
That's a collective right...it doesn't single out individuals but says clearly that's a right of ALL people (and not just US citizens, despite the crap the GOP is peddling).

Tell us where the individual is in this one?
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. "

That refers to ALL trials and a collective right. If the City of Chicago sues gun manufacturers it has a right to be heard by a jury...even though the corrupt gun industry and the GOP is trying to short-circuit that one too.

So why would Professor Amar pretend the second amendment is lacking the adjective it most clearly HAS got?

[Romulus]

31. quick question

The only individual ones are three (which is limited to soldiers and homeowners) and five and six which extend only to those accused of a crime.

The fourth amend:That's a collective right...it doesn't single out individuals but says clearly that's a right of ALL people (and not just US citizens, despite the crap the GOP is peddling).

Why do people then continue to successfully assert their individual rights under the 1st, 4th, and 8th Amendments, as incorporated by the 14th?

1st: speech, religion, press, assembly, petitioning the govt
4th: search and seizure/arrest
8th: excessive bail or fines, cruel and unusual punishment

http://www.law.cornell.edu/constitution/constitution.table.html#amendments

Just asking.

[MrBenchley]

32. Because they're collective rights

We all share them...not just one protected class...we are ALL the people.

On the other hand, it makes no sense to say, "Look, that well regulated militia over there just shot his own nuts off..."
"Militia" by its very definition is a collective noun, just like "bevy".

[556]

33. Okay......

so who is suppose to provide the firearms for the militia if they are ever called upon? Just curious. I'm not talking about the National Guard either.

[MrBenchley]

35. Throughout American history

The taxpayer has bought them....take a look at history.

Although the gun nut crowd likes to invoke the image of enraged patriots taking down their trusty squirrel guns from over the mantle and heading off on their own to fight Hitler, it’s not even close to being true and never has been.

The first shots of the Revolutionary war were fired at Concord, where the patriots had gathered to defend their collective armory. Throughout that war patriots like Morris risked their fortunes to buy quantities of muskets and powder from the French, Spanish and Dutch. One of the turning points of the war was the purchase of 80,000 Charleville muskets from the French by the Continental Congress. In 1794, Congress authorized the opening of a federal armory in Springfield to turn out 4,200 muskets annually, while in 1798 the fledgling government contracted with 26 private individuals to produce even more guns…and those publicly owned guns were the ones with which the War of 1812 was fought. Subsequent wars were ALL fought with our collective armaments.

The individual strates have also made bulk purchases throughout history.

[BullDozer]

39. Then why

If this as you assert is the complete and total truthThe taxpayer has bought them....take a look at history. was this included?

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided,.....every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid

http://www.constitution.org/mil/mil_act_1792.htm

Subsequent wars were ALL fought with our collective armaments

Mainly fought by the standing armies, not the militia.

[MrBenchley]

43. Then why did the states lay out the money?

Are you trying to tell us that every state has been mistaken since the country was formed?

Which leads us BACK to the question at hand: Why is Professor Nutso trying to pretend the adjective "well regulated" doesn't appear in the Second Amendment?

[BullDozer]

51. It's always more

"Then why did the states lay out the money?"

Gee maybe to get MORE guns, since the Militia Act which I cite wasn't yet in effect having not been passed until May 2, 1792. Perhaps to also ensure some commonality of arms for groups that would be issued those weapons.

Which leads us BACK to the question at hand
Which as I have told you is not the point in your initial post I've been addressing but I'll have another go at it just for you.

Why is < the >Professor... < showing the meaning without > the adjective "well regulated" ..... in the Second Amendment?

Because certain dunderheads can't seem understand a sentence with that many words in it.

[hansberrym]

52. the right belongs to the people

and there are no qualifiers associated with "the People". It does not help your argument, MrBenchly, to intentionally mistate Mr. Amar's argument.


A "well regulated militia" can not exist if "the people" do not have arms, and are not well trained in the use of arms. The reason for the use of the words "well regulated" in front of "militia" is obvious -what good would an poorly armed and untrained milita be in providing security to a free state? See below and remember that Madison was a Virginian and so would have been familiar with the idea that "The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty".


Below is short excerpt from US v Miller , The gun grabbers love to dismiss as mere dicta the history lesson given by the Supreme Court some 75 years ago, and while it might not be legally binding, it is factually correct.


from US v Miller

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. The Militia which the States were expected to maintain and train is set in contrast with Troops which they <307 U.S. 174, 179> were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time...


The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared: ‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’ It further provided for organization and control of the Militia and directed that ‘All free male persons between the ages of eighteen and fifty years,’ with certain exceptions, ‘shall be inrolled or formed into companies.’ ‘There shall be a private muster of every company once in two months.’ Also that ‘Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good <307 U.S. 174, 182> powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.’

[MrBenchley]

56. And the adjective is right in front of "militia"

So why is professor nutso pretending it isn't there?

I suppose while you're at it, you might try telling us how "people" isn't a collective noun.

[BullDozer]

59. It's simple

Why is < the >Professor... < showing the meaning without > the adjective "well regulated" ..... in the Second Amendment?

Because certain dunderheads can't seem understand a sentence with that many words in it and seeing as you are the only one ranting and raving about this while others provide facts......

[hansberrym]

67. it's even simpler than that

Professor Amar was actually commenting on the merits of a recent 9th Circuit opinion (Silviera) in which that court tries to interpret that term "militia" as synonomous with "state militia" dispite the Supreme court precedent (Miller) which stated clearly the history of the Second Amendment and the use of the term "militia" as relating to " all males physically capable of acting in concert for the common defense" .



MrBenchly's entire argument in this discussion is based on a sleight of hand attempt to impune the arguments of Mr. Amar by taking them out of the context of the discussion in which they were made.

[hansberrym]

53. the right belongs to the people

and there are no qualifiers associated with "the People". It does not help your argument, MrBenchly, to intentionally mistate Mr. Amar's argument.


A "well regulated militia" can not exist if "the people" do not have arms, and are not well trained in the use of arms. The reason for the use of the words "well regulated" in front of "militia" is obvious -what good would an poorly armed and untrained milita be in providing security to a free state? See below and remember that Madison was a Virginian and so would have been familiar with the idea that "The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty".


Below is short excerpt from US v Miller , The gun grabbers love to dismiss as mere dicta the history lesson given by the Supreme Court some 65 years ago, and while it might not be legally binding, it is factually correct.


from US v Miller

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. The Militia which the States were expected to maintain and train is set in contrast with Troops which they <307 U.S. 174, 179> were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time...


The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared: ‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’ It further provided for organization and control of the Militia and directed that ‘All free male persons between the ages of eighteen and fifty years,’ with certain exceptions, ‘shall be inrolled or formed into companies.’ ‘There shall be a private muster of every company once in two months.’ Also that ‘Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good <307 U.S. 174, 182> powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.’

[MrBenchley]

60. Yeah, yeah, yeah...

and the right that belongs to the people is to have a well regulated militia...

So why IS professor nutso pretending there is no adjective, when there most clearly is?

[Name removed]

64. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Name removed]

70. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MrBenchley]

78. No facts on the RKBA side

"certain dunderheads can't seem understand a sentence with that many words in it "
WE can see the RKBA ccrowd is certainly incapable of even that basic understanding.

[BullDozer]

86. All facts all the time

Funny the individual rights people seem to be the one's posting all of the facts on this message thread and you all by yourself are argueing collective rights with no facts in your sack.

[MrBenchley]

94. All facts all the time, always avoided by the RKBA crowd

So why is professorr nutso pretending there's no adjective when there is?

[BullDozer]

38. So close........

We all share them...not just one protected class...we are ALL the people.

Wow you might get it yet!

We all share them. We are all the people... each and every single individual one of us.

[MrBenchley]

41. Right on the money

Now go peddle your nonsense to someone dumb enough to believe it.

[BullDozer]

54. They are your words B

We all share them...not just one protected class...we are ALL the people.

Wow you might get it yet!

We all share them. We are all the people... each and every single individual one of us.

[MrBenchley]

57. All = collective

Now go play your semantic games to someone dumb enough to buy them. They're probably the ones who don't realize the second amendment has an adjective when professor nutso lies to them.

[BullDozer]

66. Grade school grammar lessons

Now go play your semantic games to someone dumb enough to buy them.

Hi Kettle, I'd like you to look in the mirror so I can introduce you to someone, because that's exactly how you are trying to game your collective rights distortion of obvious individual rights.

We all share our rights. We are all the people... each and every single individual one of us.


"All = collective"

all ( P ) Pronunciation Key (ôl)
adj.
1. Being or representing the entire or total number, amount, or quantity: All the windows are open. Deal all the cards. See Synonyms at whole.
2. Constituting, being, or representing the total extent or the whole: all Christendom.
3. Being the utmost possible of: argued the case in all seriousness.
4. Every: got into all manner of trouble.
5. Any whatsoever: beyond all doubt.


eve·ry
adj.

1. Constituting each and all members of a group without exception.
2. Being all possible: had every chance of winning, but lost.
3. Being each of a specified succession of objects or intervals: every third seat; every two hours.
4. Being the highest degree or expression of: showed us every attention; had every hope of succeeding.

each
adj.
Being one of two or more considered individually; every: Each person cast a vote. My technique improved with each lesson.

pron.
Every one of a group considered individually; each one.

[Name removed]

71. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MrBenchley]

81. Which the RKBA crowd clearly cannot absorb

collective: ADJECTIVE: 1. Assembled or accumulated into a whole.
2. Of, relating to, characteristic of, or made by a number of people acting as a group: a collective decision.
NOUN: 1. An undertaking, such as a business operation, set up on the principles or system of collectivism.
2. Grammar A collective noun.

[BullDozer]

87. And all is where?

Still trying to distance yourself from your statement that "We all share them...not just one protected class...we are ALL the people.
" and now you are spinning madly to escape from it, but I'll humor your spinning for a moment.


collective: ADJECTIVE:
1. Assembled or accumulated into a whole.
2. Of, relating to, characteristic of, or made by a number of people acting as a group: a collective decision
NOUN:
1. An undertaking, such as a business operation, set up on the principles or system of collectivism.
2. Grammar A collective noun



Please note that your supplied definition of collective does not use the word all anywhere, where you used it twice in your statement that I quoted above.

You have to assemble the INDIVIDUAL Militia members in order to have the whole, if the individuals do not have the right how can they possible exercise that right when assembled into a whole?

Is it magic? :: sarcasm ::

[MrBenchley]

95. It's called a collective noun...

"You have to assemble the INDIVIDUAL Militia members in order to have the whole, if the individuals do not have the right how can they possible exercise that right when assembled into a whole?"
Duh....

[iverglas]

107. and then

First of all, what MrB said:

"We all share them...not just one protected class...we are ALL the people."

I'm afraid that you really just can't use those words against him.

I don't "share" my individual rights with anyone. My right to life, to liberty, to freedom of conscience -- it is mine and nobody else's. Everybody else has his/her own. We don't share 'em, any more than when we each have a pen, we "share" the pens.

You quote some meanings of "all". How about these, from the Oxford Concise?

predet.
1a. The whole amount, quantity, or extent of (all the upheaval; all this clutter; waited all day; all his life)
1b. (with pl.) the entire number of (all the others left; all ten men)

All a thing -- that's not plural. Not "each and every one of" a thing. Just like your own:

2. Constituting, being, or representing the total extent or the whole: all Christendom.

Wazzat, each and every one of ... what? No, it's "Christendom as a whole". Like "all my garden" -- my garden as a whole, or whatever else one might dream up. The sum of the parts -- not the parts.

"All" can refer to a singular thing or a plural thing. "The people" can be singular or plural. "All the people" can mean "the whole people (is, e.g.)", or "the entire number of the people (are, e.g.)".

Then we have, for good measure:

pron. 2 (foll. by of)
a. the whole of (take all of it)
b. every one of (all of us}

Singlar, plural.


MrB's statement seems to be about as ambiguous as that 2nd amendment thingy itself ... so one might be well advised to ask what he meant.

.

[MrBenchley]

34. IN FACT, the NRA is currently suing on first amendment grounds

to quash campaign finance reform!!

http://www.law.stanford.edu/library/campaignfinance/

Now how is THAT individual in any way? If the first amendment wasn't a collective right, an association would have NO standing to sue.

[Romulus]

36. I think that's backwards

if it WAS a collective right, a person would have NO standing to sue.

Standing comes from showing a individual's suffering a particularized harm. In the Constitional context, individuals can challenge the validity of entire laws. Remember the Virginia v. Loving case? A whole law against interracial marraige was struck down when one couple challenged their prosecution under the law.

[MrBenchley]

42. Not even close to true

"Remember the Virginia v. Loving case? A whole law against interracial marraige was struck down when one couple challenged their prosecution under the law."
Gee, didn't that apply to the entire society COLLECTIVELY? Sure it did. Otherwise, every interracial couple would have had to sue.

The NRA knows perfectly well the Second refers to collective rights. Otherwise it could have EVERY gun control law overturned...but in fact it's never even TRIED to sue on second amendment grounds. What does it say when someone doesn't put their money where their mouth is?

[BullDozer]

49. Recycling is good for the environment

The NRA knows perfectly well the Second refers to collective rights. Otherwise it could have EVERY gun control law overturned...but in fact it's never even TRIED to sue on second amendment grounds

You try to argue against individual rights by arguing that a claim to absolute rights isn't being asserted?

You tried the same pathetic arguement yesterday and it didn't fly then either.

[MrBenchley]

61. And the truth remains the truth

So tell us...why hasn't the NRA ever sued, if their position is the correct one?

Answer: For the same reason professor nutso is pretending that the adjective "well regulated" doesn't exist.

[BullDozer]

65. Already answered

For the same reason the First Amendment doesn't allow to you to shout Fire in a crowded movie theatre or I have a bomb on an airplane.

Do you want a paroled Charles Manson to be legal to own firearms? I'm sure the NRA doesn't want to see that.

What else do you have in your bag of rotten fish?

[MrBenchley]

74. And a silly answer it is too.....

"Do you want a paroled Charles Manson to be legal to own firearms? I'm sure the NRA doesn't want to see that."
And yet the NRA doing all they can to overturn background checks, or keep them from being extended to gun shows and the like. All one can conclude is that they DO want a Charlie not only armed but packing an assault rifle.

[RoeBear]

75. Care to point me at...

...something that indicates "the NRA (is) doing all they can to overturn background checks"?

[MrBenchley]

79. Are you REALLY going to pretend the NRA is NOT opposing

background checks at gun shows? Are you really going to pretend the NRA is not trying to keep the Brady Law from being renewed?

Here are just two quick examples..

"The National Rifle Association on Tuesday said it was filing a lawsuit to block the FBI from keeping records on instant background checks that are now mandatory for all gun sales."

http://www.cnn.com/US/9812/01/instant.gun.checks.01/

"SB 947 also requires background checks at guns shows...It is critical that you contact your State Senator today and urge him to oppose Senate Bill 947. "

http://www.wmsa.net/organizations/NRA-ILA/alert_030530.htm

[RoeBear]

83. You said...

..."And yet the NRA doing all they can to overturn background checks,"

and I asked... "Care to point me at something that indicates 'the NRA (is) doing all they can to overturn background checks'?"

Overturn means change something from how it is currently to something different. Please explain how the NRA is trying to get rid of currently required background checks.

[MrBenchley]

84. You mean THOSE examples weren't enough?

"Please explain how the NRA is trying to get rid of currently required background checks."
Who insisted on a "sunset" provision in the Brady Law...and is trying to keep it from being renewed?

[BullDozer]

89. Brady Sunsets? That's news to me!

Who insisted on a "sunset" provision in the Brady Law...and is trying to keep it from being renewed?

There's a sunset clause that will make the Brady Bill expire? That's news to me, got some proof of that?


Now if you are refering to the built in expiration of the initial 5 day waiting period in the Brady Bill, that was included to ensure that the government would act swiftly to get the NICS system up and running instead of stalling and making the 5-day waiting period permanent.

However since that clause expired a few years ago that can't be what you are referring to.

[MrBenchley]

96. Gee, here's an RKBA lunatic gloating about it

http://www.nealknox.com/alerts/msg00115.html

Not a month ago, the RKBA crowd was gloating about it right on the old discussion board....

[DoNotRefill]

134. Talk about uninformed grandstanding....

If you read the link you posted, you'll notice that it's the Assault Weapon and Magazine ban that sunsets in 2004, NOT the Brady Bill. There's a pretty big difference between the two.

[MrBenchley]

140. Gee, that's all the RKBA crowd ever does

"If you read the link you posted, you'll notice that it's the Assault Weapon and Magazine ban that sunsets in 2004, NOT the Brady Bill."
So Larry Pratt is LYING (again). Well shame on me for believing even briefly he and the RKBA crowd knew what the hell they were talking about..

[DoNotRefill]

162. Not so...

If you'll actually read the link, you'll find that he's QUOTING a questionaire written and distributed by somebody else.


And BTW, you ought to be careful about branding everybody who makes a mistake in fact a liar, considering some of the posts you've made here.

[MrBenchley]

176. Yes so....

Serves me right for believing anything the RKBA crowd says...

[BullDozer]

88. More anti trash

And yet the NRA doing all they can to overturn background checks,
Bullshit... an accurate cite?

or keep them from being extended to gun shows
Right because somehow licensed dealers don't have to fill out the 4473s and perform the NICS check just because they are selling at a gunshow one some days?

The BATF(E) already has rules in place to handle people who are engaged in the business of selling firearms without a license.

[MrBenchley]

100. Dozer, you can pretend all you want

But the NRA is doing all they can to overturn background checks.

[BullDozer]

109. I'll ask again.

Dozer, you can pretend all you want
But the NRA is doing all they can to overturn background checks.

Accurate cite please?

[MrBenchley]

110. Been there, done that

The NRA is doing all they can to overturn background checks.

[BullDozer]

112. Where are your facts?

Been there, done that The NRA is doing all they can to overturn background checks.

Cite please?
Link please?
Got facts?

[MrBenchley]

121. Been there, done that

Now go play "let's pretend" with someone else...

[BullDozer]

124. Where was that?

Been there, done that

Bullshit, you've not provided any evidence in this thread that the NRA is trying to get the background check system discontinued.

If you think you have than all you need to do is type the two or three digit post number as a reply.


Cite please?
Link please?
Got facts?

[MrBenchley]

125. Go play "let's pretend" with someone dumb enough to play along

The NRA is doing all it can to overturn and weaken background checks.

[Name removed]

129. Deleted message

Message removed by moderator. Click here to review the message board rules.

[BullDozer]

130. Still no proof

Go play "let's pretend" with someone dumb enough to play along
The NRA is doing all it can to overturn and weaken background checks.

You've been claiming since 8/30 that the NRA is "doing all they can to overturn background checks, you've been challanged multiple times to provide evidence to back up your claim and you have to date not done so, all the while still managing to reply to the thread making claims that you've "Been there, done that", and restate your initial claim multiple times, all without producing anything to back up your initial claim. It's clear that you are the one pretending here.

Now today you add the qualifier "and weaken background checks" too. Yet still you show nothing to back up your claim.

Cite please?
Link please?
Got facts?

[MrBenchley]

135. Go pimp for the NRA to someone dumb enough to buy your rubbish

[BullDozer]

139. Still no proof

You've been claiming since 8/30 that the NRA is "doing all they can to overturn background checks, you've been challanged multiple times to provide evidence to back up your claim and you have to date not done so, all the while still managing to reply to the thread making claims that you've "Been there, done that", and restate your initial claim multiple times, all without producing anything to back up your initial claim. It's clear that you are the one pretending here.

You still show nothing to back up your claim.

Cite please?
Link please?
Got facts?

[MrBenchley]

141. Been there, done that

Now go cry about how cruelly the NNRA is being maligned to someone who gives a shit.

[BullDozer]

143. Still waiting for proof.

You've been claiming since 8/30 that the NRA is "doing all they can to overturn background checks, you've been challanged multiple times to provide evidence to back up your claim and you have to date not done so, all the while still managing to reply to the thread making claims that you've "Been there, done that", and restate your initial claim multiple times, all without producing anything to back up your initial claim.

Still you show nothing to back up your claim.

Cite please?
Link please?
Got facts?

YOu can stop replying at anytime and end your embarrassment.

[MrBenchley]

146. Been there, done that

Now go cry about how cruelly the NRA is being maligned to someone who gives a shit.

[BullDozer]

148. Where was that?

Been there, done that

Where?

That's all you need to do is show the proof it's really a simple concept.

Where is your proof?

[RoeBear]

154. Benchley refuses to...

back up his claim that the NRA is trying to overturn background checks. Please stop embarassing your self and admit you have no proof.

[MrBenchley]

149. Been there, done that

Now after you go read #79 AGAIN, try telling us that "well regulated" and "unorganized" are synonymous.

We already know from threads about Amarr and Johnn Lott the RKBA crowd is totally dishonest...we might as well be assured they are tediously so.

[BullDozer]

151. Still waiting for proof from you

Now after you go read #79 AGAIN

Yes yes yes #79 which you were told 13 minutes after you posted it does nothing to back up your claim that the "NRA < is >doing all they can to overturn background checks"

But lets look at the details in your "examples": that you are trying to assert as proof of your claim but in fact do nothing at all to support it.

From the linked article" The National Rifle Association on Tuesday said it was filing a lawsuit to block the FBI from keeping records on instant background checks that are now mandatory for all gun sales. The NRA charges that a federal law that went into effect on Monday is "an illegal national registration" that violates the privacy of gun owners.

Nice and current article too Benchley it's from December 1, 1998. :: sarcasm ::


**** the below is gathered from the Brady Campaign web pages***

This is in fact true that the NRA filed suit regarding the keeping of the records however what you left out is that the Brady Law does require the Department of Justice to destroy all records on people approved to purchase firearms by the National Instant Criminal Background Check System. What it didn't do was specify the exact time frame that the records must be destroyed within.

In regulations that went into effect when NICS came on line in 1998, the Department of Justice set the retention period for records of approved purchasers at no more than 180 days. The NICS record retention period for those prohibited from purchasing guns was set at 10 years

In a proposed rule issued in March 1999, the Department of Justice sought to reduce the record retention period on approved purchases - from 180 days to 90 days.(AFTER the article you cited was written)

After completing a lengthy and comprehensive rule-making procedure, the Department of Justice concluded that 90 days was the "shortest practicable period of time for retaining records of allowed transfers that would permit the performance of basic security audits of the NICS . . ." and announced the new record retention rule on January 22, 2001. (over two years AFTER the article you cited was written)

**** End Brady Campaign input ****

The NRAs suit was only to affect the undefined length for the retention of records for those approved for purchase, to keep the undefined length from becoming eternity, it did nothing to affect the 10 year retention period for the sales not approved by the NICS check. This was in no conceivable stretch of the imagination an attempt as you claim to "overturn background checks"

Your second link addresses ILLINOIS Senate Bill 947 which would have imposed an additional tax on all private transfers of firearms at gun shows, requires background checks at guns shows, and allows the state police to keep additional records on firearms transferred at gun shows. As this law doesn't already exist it cannot possibly be overturned.

Now correct me if I'm wrong but Illinois has laws regulating private firearm sales between individuals. Illinois law requires that all purchasers of firearms must display to the seller a valid Illinois Firearm Owners Identification (FOID) card. The seller is to record the buyer's name, address, and FOID number on the bill of sale, and retain a copy of that bill of sale for a period of 10 years, or face stiff penalties.

Furthermore a bill was signed into law in 2001 by Governor Ryan, under which criminals are compelled to surrender their FOID cards at the time of conviction. Therefore, sellers in private transactions may rest reasonably assured that the buyer is not a person prohibited from owning guns.



Now exactly how are either or these examples which you have again cited in an attempt to reaffirm your claim that " the NRA < is > doing all they can to overturn background checks"?

You can see post #150 to address your attempt to change the subject away from your clear lacking of proof that "the NRA < is > doing all they can to overturn background checks" by diverting this sub-thread to an issue that is already being discussed further down the thread. Your smoke and mirrors game won't work.

[MrBenchley]

155. Hold your breath and count to one thousand

The NRA is doing all it can to weaken or eliminate the background check system, as I showed. Now go snivel about how these loonies are being maligned by me to somebody who givres a crap.

[BullDozer]

158. That's telling

as I showed.

And WHERE did you do that, as I pointed out with facts and proof it sure wasn't post #79.

I'm not holding my breath waiting for you to provide facts and proof because eternity is far too long.

[MrBenchley]

165. Peddle the NRA rubbish

to someone dumb enough to buy it..

"it sure wasn't post #79.it sure wasn't post #79."
Then you're going to have to cry your eyes out.

[BullDozer]

170. Still not a fact from you in sight.

If there is a specific fact or facts that I used to refute what you claimed to be your proof in your post #79 that you want to dispute you should address those items.

Your accusation that I used "NRA Rubbish" is false as I clearly noted that I gathered information from the Brady Campaign web pages to make my argument as well as actually having read what was at the links you provided as your claim of proof.

Unlike you I showed the facts and provided the proof.

Now where is your proof that you've been whining about for a seemingly endless stream of days now?

[MrBenchley]

173. Only facts in sight are from me

Now go whine the NRA beinng slandered to someone who gives a crap.

"Unlike you I showed the facts"
Hahahahahahahahahahahahaha.......

[BullDozer]

180. Where were your facts?

And where are your facts? We've been asking for your proof for days and days now you still have yet to prodice any.

Yeah some of us actually pay attention and post the truth with our arguements and don't go around making falses and malicious statements or report about organizations.

Now how about some proof of your claim?

[MrBenchley]

181. We?

You seem to be the only person trrying to pretend the NRA hasn't been trying to tear down and weaken the background check system?

But then you're also the only person in my life I've ever heard who's tried to pretend "unorganized" and "well regulated" are synonymous.

[BullDozer]

186. Read the thread and see

You seem to be the only person trrying to pretend the NRA hasn't been trying to tear down and weaken the background check system?

I seem to be one of those who has stuck to you in an effort to get you to actually show some damn proof of your claim, Roebear is in the thread too. You're the only one making that absurd claim without a shred of proof to back you up.

You're the one who seems to think that uwell regulated negates the existance of the unregulated militia which is in fact clearly spelled out and shows nothing to back it up.

[MrBenchley]

188. Peddle it to him then

and the two of you can pout together.....

"You're the one who seems to think that uwell regulated negates the existance of the unregulated militia which is in fact clearly spelled out and shows nothing to back it up."
Pout a little louder and less coherently.....

[DoNotRefill]

171. Oh, man....

"Gee, didn't that apply to the entire society COLLECTIVELY? Sure it did. Otherwise, every interracial couple would have had to sue."

You're not understanding the difference between a collective and individual right. In the case mentioned, it was an individual right. The reason every interracial couple wouldn't have to sue is because each one consists of individuals. A collective right applies to society as a whole, and does NOT necessarily apply to a specific individual.

[iverglas]

44. gotta jump in (minor edit)

Collective rights are something that USAmericans, very understandably, tend not to understand. Liberalism itself, the 18th century "individualistic" underpinning of the US itself, just doesn't address the issue, and in fact tends to be inimical to collective rights. Liberalism focuses on the apparent conflicts between collective rights and individual rights, and exalts the latter.

I have to point out that the things you call "collective rights", MrB, pretty much aren't. Life, liberty, security against search and seizure, due process, equal treatment, fair trial, free speech ... all those things are individual rights. They are much more plainly expressed in more modern instruments like the Universal Declaration of Human Rights -- e.g.:

Everyone has the right to life, liberty and security of person.

That's an individual right. People may exercise that right as individuals.

And --

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.

-- that's also an individual right. It can be exercised by every individual, as an individual. In fact, it can only be exercised by individuals as individuals. "A people" just doesn't have a home, or a person. "People" have homes and persons. The problem here is the dual meaning of the word: the collective noun "a people" and the plural of person, "people". I think it's plain that the usage here is the latter one.

The problem is that rights theory was in its infancy when the US constitution was written. These days, that right is normally expressed something like this (from the Canadian constitution):

Everyone has the right to be secure against unreasonable search or seizure.

The individual nature of the right is made much clearer. That is referred to as a "legal right" in the Canadian constitution, because it is not actually a fundamental human right. (Or, in the traditional "liberal" phrasing of it, an "inherent right".) Accordingly, it does not appear in the Universal Declaration of Human Rights, for instance.

And in your constitution, the provision could be rephrased as "the right of everyone to be secure in his/her person, house ..." and mean exactly the same thing as it means in its present form.

Likewise, the right to a civil trial by jury, while it certainly applies to all people, applies to them as individuals. It is an individual right. Individual rights in fact do not "single out" individuals -- that's kind of the point. They apply to all individuals, which is what makes them "rights". (The fact that this provision of your constitution also applies to corporations or other litigants is another matter; the right that individuals have is still an individual right.)

And when you refer to "a limitation on Congress" -- that is generally how rights are protected. The substance of an individual right is expressed, in a constitution for instance, by stating what the state may not do. The problem with things like the Universal Declaration of Human Rights is that they kind of amount to platitudes, since they don't actually govern the relations between any individual and the state with jurisdiction over him/her, so they say things like "everyone has the right" without giving it any real, enforceable content.

Again, constitution-writing was a novel exercise two centuries ago, as well as the content that was being expressed being kind of sketchily developed so far, and the wording of your constitution shows the problems that can arise that have since been worked out a little more elsewhere. There was a need to express the fact that rights have bite, and that's how it was done.

.


Now, here's a collective right, from the International Covenant on Civil and Political Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

That right belongs to a "people", and can't be exercised by an individual. It's impossible, given the substance of the right itself. An individual doesn't have a "right of self-determination", or a "right to determine his/her political status"; only "a people" have has (edit: oops, I get confused too!) that right because it's something that only "a people" can actually do.

Here's one from the Canadian constitution:

The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

That right belongs to a group, in this case a "linguistic community". The right includes not just separate schools, but also the right to elect its own school authorities (without the other "community", even within the same municipality, being able to participate in that election), and so on. Again, an individual can't exercise that right; it is exercised collectively.

This collective right could indeed conflict with some individual rights. A community whose existence was precarious might want to take measures to protect itself as a community -- like, say, not hire teachers who speak French but are actually English-Canadian. That's "discrimination", a violation of the individual right to equal treatment. But the survival of the community might depend on hiring French-Canadian teachers who are able to pass on the whole multiple elements of the culture in a way that an English-Canadian can't.

(I would note that rights theory continues to become more sophisticated, and the importance of "culture" to individuals is becoming better understood. So protecting a culture, through application of the concept of "collective rights", is also protecting the individual members of that culture and their ability to exercise their own, individual rights.)

This concept really is extremely foreign to USAmericans. It is much more familiar to countries that are historically composed of different ethnic, linguistic and/or religious groups that have retained their separate identities over a long term -- like Canada and Belgium.

Belgium has the most complex government structures you can imagine. There are different "layers" of government which permit the three "communities" to exercise control over things like schools separately, but assign matters that are not "cultural" to layers of government, at different levels, that apply to the entire country. The matters that the different "layers" that apply to the different communities have jurisdiction over are those matters where the communities have collective rights.

For instance, in Ontario, the French-speaking "community" in Canada's capital city fought to protect the only French-language hospital there from a wave of hospital-closings, because of their interpretation of their collective right to their language and culture, which cannot be exercised if they do not have the institutions to support the community as an entity in itself; they won.

If USAmericans did have an appreciation for this concept, there might be more hope for a reconstructed Iraq right now! But the US tradition is quite different, and focuses on individuals' rights within a single "community", the melting pot, and the formal equality of each individual.

.

Now, is the 2nd amendment a "collective right"? It may be true that there are no other collective rights in the US constitution or Bill of Rights; I'm not sure. That wouldn't mean that this might not be one. Context helps, but the fact that other rights, even if it were all the other rights, in the Bill of Rights are "individual" would not mean that this one necessarily was. As I've pointed out, Canada's constitutional charter of rights contains both.

I'm not going to state an opinion, because I simply have not considered enough facts and argument to do that. But I tend to think that the right is collective. One reason is that I just don't think that it can be construed as "individual" and mean anything much at all. Is it possible that your founders actually thought that individuals had a "right" to take up arms against their government?? I think they might rather have regarded that as treason. It seems more likely to me that they thought that the people had the right to do that.

Now, who that "people" might be, who knows? They really weren't all that concerned about the representativeness of control of the state, your founders, from what I can tell. They were really extremely élitist. They were the ones who had decided that a régime change was needed, and they went ahead and did it. I imagine they just figured that they could go ahead and do it again if they felt like it, and call themselves "the people" again as they had already done. Or that if they got corrupted by power, somebody else would do it; sure.

Frankly, it seems to me that they had a little of that "L'état, c'est moi" disease. They thought it not just possible, but a fact, that someone (in this case them) always knew right and best. They saw things a little blackly and whitely. They didn't have any of the benefit of the hundreds of years of progress in human thought, and of added experience, that we now have.

Everybody who believes in rights and freedoms believes that it is right to oppose oppression. It's a whole lot harder to agree on the "right" way to do that. My view is pretty much that the expression of that idea in the US constitution -- the right of "the people" to oust oppressors, in a democracy -- is simply simplistic and unworkable.

Nobody has perfect formulations of these concepts. The concepts themselves are infinitely circular and mutually contradictory at every turn.

The right of Franco-Ontarians to preserve their cultural identity includes/is expressed in, among other things, the right of individual Franco-Ontarians to attend French-language schools; the collective right could not be exercised if the individual right were not recognized. But that doesn't really mean that the single French-speaking student in a city of 100,000 could demand that a school be built for him/her; society as a whole is always entitled to act reasonably, and will be justified in "violating" that right where there are compelling reasons to do so, in the interests of the larger collective.

Does the right of the USAmerican people to overthrow tyranny (plainly a collective right) include, is it expressed in, the right of individual USAmericans to own firearms, perhaps? Is that what the second amendment means? It's actually worded kind of that way. The connection just seems a little more tenuous to me in this instance, of course, although it might well have seemed very direct and immediate, to your founders.

But logically, is it not possible to exercise the collective right to overthrow tyranny even if there are restrictions on the individual possession of firearms? Are no such restrictions reasonable -- justified? It would seem obviously silly, to me, to say that, or to think that your founders would say it if they looked around them today.





Canadian Charter of Rights and Freedoms:
http://www.efc.ca/pages/law/charter/charter.text.html#1

Universal Declaration of Human Rights:
http://www.un.org/Overview/rights.html

International Covenant on Civil and Political Rights:
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

.

[Romulus]

45. thank you for a thoughtful post

:hi:

[iverglas]

48. you're most welcome!

But won't you argue with me??

[MrBenchley]

46. Actually, and somewhat peculiarly

"I have to point out that the things you call "collective rights", MrB, pretty much aren't. Life, liberty, security against search and seizure, due process, equal treatment, fair trial, free speech ... all those things are individual rights."
Not in this country....In fact, since 1886 the Supreme Court has consistently ruled that the term the "people" includes corporations, for example.

http://www.iiipublishing.com/afd/pa-resol.htm

http://onegoodmove.org/1gm/1gmarchive/000464.html

[iverglas]

47. nuh uh

"Not in this country....In fact, since 1886 the Supreme Court has consistently ruled that the term the "people" includes corporations, for example."


The term "people" has absolutely nothing to do with corporations, in that country or anywhere else! The term "PERSON" includes a corporation (and a partnership, etc.) both in your country and in a lot of other places, like mine, given that the idea was very current well before 1886. This, I assure you, is something I have known for a very long time!

"People" may be the plural of "person", as I mentioned, but it is ALSO a singular noun, referring to one single thing, and having a different meaning. It isn't uncommon for words to have more than one meaning.

Oxford Concise says (I take the two relevant meanings from the list):

1. (usually treated as plural)
a. persons composing a community, tribe, race, nation, etc.
("the English people, a warlike people, the peoples of the Commonwealth")

5. persons in general
("people do not like rudeness")

(I note that in two of the examples Oxford gives for 1a, "people" is actually treated as singular, and not as a collection of "persons" at all.)

Looking at other languages can help. In French, "un peuple" is "a people"; "les gens" are "people". In Spanish, "la gente" works the way "people" does in English: in one sense it means a bunch of people, in another ("pueblo") it means a people. In German, "volk" is "a people", "leute" are "people".

Truly: because the concept of collective rights does not have currency in the US, the words used in discussing that concept are also not as familiar. Up here, there's always somebody going on about it, and not too long ago our Supreme Court devoted many pages to the whole question of the right of "a people" to self-determination, in the constitutional reference concerning the conditions on which Quebec could secede from Confederation.

The references you give are for the fact that a corporation is a "person" in law, not the notion that corporations are "people". Corporations are "persons"; they are NOT "people", since "people" is just not generally the word used for the plural of "person" in the context in question, where "person" has a rather specific, technical meaning: a subject of the law with rights under it.

And anyhow, that fact just has nothing to do with whether a right is collective or individual! Although ... where a corporation has the right in question this would be conclusive evidence that the right is NOT a collective right. The same is true of a human being, of course; if an individual has a right, it is not a collective right.

Trust me on this, please! It's my bread and butter.

The fact that a right belongs to ALL people, plural, i.e. to each and every one of the people, MEANS that it is an individual right. In this case, the "people" are composed of many separate individuals, and "people" is the word for all of them together, not for the thing that they form when put together. Just like other plural nouns like "shoes" or "books" -- the words refer to the many individual things themselves, not to some singular thing that is made up of many individual things.

The fact that a right belongs to A people, singular (or to "peoples", a collection of this people and that people and some other peoples), means that it is a collective right. The "people" in this case is one thing, the word for the thing formed when a bunch of things are put together, not the word for the bunch of things. It's like, as Oxford says, "assembly" or "family". It may be made up of other things, but it is a thing itself.

ALL people have the right to life. The right to life is an INDIVIDUAL right. Absolutely, without question, no doubt about it, an individual right. It doesn't belong to some "whole" composed of many individual parts; it belongs to the individuals themselves, and only to them.

All peoples have the right to collective self-determination. That right is a COLLECTIVE right. It doesn't belong to each individual part of the whole, to any individual who makes up the group. It belongs to the group itself, and only to the group.

In actual fact, the word "right" doesn't really mean quite the same thing when used in these two different situations, if you ask me.

This doesn't in any way affect the validity of the argument that the 2nd amendment is a collective right. "The people" can mean two different things, and can be used in a single text in both senses, particularly when that text was written by people who simply don't have the sensitivity to the issues that we have now.

And as I said, the "right" expressed in the second amendment looks to me like a collective right -- essentially, like the right to self-determination. I don't think that an individual has a "right" to overthrow a government, if that is indeed what the purpose of the 2nd amendment is supposed to be. It looks to me like those founders had in mind the collective right of collective self-defence, i.e. the exercise of the right to the self-determination of a people, whether against outside threat or against internal tyranny.

It looks to me like they thought that an armed populace (another word for "a people") was necessary for that purpose. But that still wouldn't *necessarily* create an individual right to possess firearms. It might *arguably* create such a right, since an individual has "an interest" in the self-determination of the people s/he belongs to, I suppose. An individual whose people has the collective right of self-determination would have to have the individual right to speak his people's language, for instance.

In modern rights theory, this notion of individual rights as essential to the exercise of collective rights (like human security) is in evidence, e.g. in the Universal Declaration of Human Rights:

http://www.un.org/Overview/rights.html

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, ...

This does resemble the formulation of the 2nd amendment, if one reads it a certain way:

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.

-- Whereas it is essential, if the state is to (have the means to) remain free (i.e. a well-regulated militia), that its individual members have the right to bear arms.

But we can also see resemblance to the collective rights in the Universal Declaration of Civil and Political Rights, and the stated reasons for recognizing those rights:

http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

... Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

... Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, ...

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

That would lead to a reading of the 2nd amendment in which the state, i.e. the "people" as it is formally organized, in an expression of its right to self-determination -- its intent to remain secure as a free state -- creates the conditions by which that goal can be met: at that time, a well-regulated militia was an essential such condition, and required that individuals have access to arms. So it seemed logical to refer to a "right to bear arms", a kind of majestic formulation of the conditions required in order for that collective right to self-determination to be exercised.

I'm just musing, of course. I would dearly love to know what the people who wrote the whole incomprehensible sentence actually meant, but even then I might not agree with them!

.

[MrBenchley]

58. Sorry

You can parse it upstairs and down, but there's no way on earth "people" or "militia" cannot be a collective term. Remember, the first three words of the Constitution are "We the people" not "Me the people" or "Every individual one of us..."

"That would lead to a reading of the 2nd amendment in which the state, i.e. the "people" as it is formally organized, in an expression of its right to self-determination -- its intent to remain secure as a free state -- creates the conditions by which that goal can be met: at that time, a well-regulated militia was an essential such condition, and required that individuals have access to arms."
And in fact, the well regulated militia has existed since Colonial times AND provided its members with publicly-purchased collective arms.

[BullDozer]

62. Try again

Which makes you neither a militia all by yourself OR well-regulated.

Without me and the other (under both federal and state law) individual members there is no militia.

OK now that you have clearly been beaten down on collective versus individual you can switch to your even more ridiculous well-regulated argument, even the bradybuch don't try to press that argument and mention it only in passing when they try and lie about the Second Amendment, and even they realize that the militia supplied their own firearms, even the bradybunch aren't dishonest enough to suggest that the founding fathers, who, having just thrown off the shackles of an oppressive monarchy, wrote the bill of rights included a clause that said more laws were required.

You are beyond desperate now.

[Name removed]

73. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MrBenchley]

80. Which makes you neither a militia OR well-regulated.

"Without me and the other (under both federal and state law) individual members there is no militia. "
Hey, and without individual cows there is no herd; without individual trees there is no forest.

"You are beyond desperate now."
Gee, I'm not the one trying to pretend that "militia" and "
people" aren't collective nouns. But then I'm also not the one pretending that the NRA supports background checks on all gun purchases...or that the NRA could have all gun control laws declared unconsitutional but deigns not to do so out of civic duty....or that "well regulated" and "unorganized" are synonymous....

[BullDozer]

90. Anything other than your drivel?

Gee, I'm not the one trying to pretend that

Now you're the one pretending that individual rights aren't, and you haven't shown any proof of your position.

[MrBenchley]

97. So why is professor nutso lying?

Hmmmmmm?

[iverglas]

98. let's keep trying

It's obviously an important enough point.

I am NOT disagreeing with your CONCLUSION that the right in the 2nd amendment is a collective right -- although I am also not saying that I have reached that conclusion myself. I DID say that I TEND toward that conclusion: I think that it is the correct conclusion, but I think that I may not have the necessary facts, and/or be using the proper logic, to assert it.

What I AM saying is that the manner in which you seem to reach that conclusion is faulty. That does NOT mean that the conclusion itself is wrong.

The "conclusion" that the moon is not made of green cheese can be stated, and based on true facts and valid/sound logic. Like: the fact that the moon rocks brought back to earth were not made of cheese, and the logic that suggests that since we know that cheese requires organisms in order to occur, and no such organisms could survive on the moon, the moon could not be made of green cheese.

The same "conclusion", that the moon is not made of green cheese, could also be based on completely false or irrelevant facts, or faulty logic. Someone could say "I conclude that the moon is not made of green cheese because 'green cheese' is what we call large bodies of water containing salt", or "I conclude that the moon is not made of green cheese since we know that cheese cannot be made without cheese machines".

The moon would still not be made of green cheese -- we just would not have proved this in any acceptable way.

It is just as faulty to say that the 2nd amendment right is a collective right because "collective right" is what we call a right that belongs to each person in a society. That is NOT what a collective right is. It really just is not what a collective right is. Really really really.

That does NOT mean that the 2nd amendment right is NOT a collective right! I did NOT say that it meant that the 2nd amendment right is NOT a collective right! (I did muse about how it might possibly be interpreted as being not a collective right -- but that was devil's advocate musing. *I* think that it is a collective right, still.)

What I said was this:

This <the fact that rights that belong to "all people" are *not* collective rights> doesn't in any way affect the validity of the argument that the 2nd amendment is a collective right. "The people" can mean two different things, and can be used in a single text in both senses, particularly when that text was written by people who simply don't have the sensitivity to the issues that we have now.

And as I said, the "right" expressed in the second amendment looks to me like a collective right -- essentially, like the right to self-determination. I don't think that an individual has a "right" to overthrow a government, if that is indeed what the purpose of the 2nd amendment is supposed to be. It looks to me like those founders had in mind the collective right of collective self-defence, i.e. the exercise of the right to the self-determination of a people, whether against outside threat or against internal tyranny.

It looks to me like they thought that an armed populace (another word for "a people") was necessary for that purpose. But that still wouldn't *necessarily* create an individual right to possess firearms. It might *arguably* create such a right, since an individual has "an interest" in the self-determination of the people s/he belongs to, I suppose. An individual whose people has the collective right of self-determination would have to have the individual right to speak his people's language, for instance.

That last bit is mere musing. I, personally, simply can't get my head around the notion that a bunch of guys writing a constitution would say something as obviously bizarre and fraught with problems as "each and every individual in the United States has -- 'the people' have -- a right to possess the firearms of his/her choice and the state may not interfere in the exercise of that right in any way", which is what the "individual rights" interpretation would seem to be. Even if those founders thought that some individual entitlement to possess firearms was necessary for the security of the state.

What it looks like to me -- all untutored as I am in the specifics of this case, although I have been magisterial in the general theory of rights and constitutional/statutory interpretation (i.e. I have taught in that field) -- is an expression of a collective right -- a right that belongs to **a** people, to the singular unit composed of all the individuals in question as a whole, and not a right that belongs to each and every one of the individuals in question as individuals.

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" in question is actually, by my reading, the right of a people -- here, the people of the United States -- to be secure in a free state. The state and "the people" are synonymous. "The people" HAS a right to keep and bear arms, not "the people" HAVE a right to keep and bear arms.

That's how one distinguishes between a collective right and an individual right -- DOES the people have that right, or DO the people have that right?

The people HAVE the right to life and liberty. The people HAS the right to be secure in a free state.

EACH PERSON has the right to life and liberty. It is an INDIVIDUAL right.

THE PEOPLE has the right to be secure in a free state. It is a COLLECTIVE right.

It is simply meaningless to say that EACH PERSON has the right to be secure in a free state, since there is simply no way that such a right could be exercised by an individual. Each person might have a right to security and freedom within a state, but does not have a right to the security and freedom of the state itself, i.e. a state free from outside interference, secure within its borders -- certainly not in the classical liberal rights theory that is the underpinning of the US state.

It is equally meaningless to say that A PEOPLE has the right to life and liberty in the sense in which those words are used in rights theory. A people does not have a "life", although each individual member of a people has a life and a right to it, and the group as a whole has a right of existence as a group; and a people does not have "liberty", although each individual member of a people has liberty and a right to it, and the group has a whole has a right of self-determination as a group.

It looks like your founders might have thought that an armed populace was a condition precedent to the exercise of the right that "the people" HAS to be secure in a free state: the "right" to bear arms here simply is not a "right" as we conceive of these things; rather, it is apparently what the drafters saw as a condition precedent to the exercise of the actual right in question. At the time, it undoubtedly was a condition precedent to the exercise of that collective right to the security of a free state. At present, it would be nonsense to say that the security and freedom of the US depend on the populace being armed.

At present, "the people" IS armed by maintaining a sufficiently equipped standing army for that purpose, to preserve the security of the free state, and providing for conscription into that army when necessary for that purpose. A government that attempted to disband that army would be interfering in the right that "the people" HAS to be secure in a free state, by making it possible for an outside power to subjugate THE STATE.

You say:

"And in fact, the well regulated militia has existed since Colonial times AND provided its members with publicly-purchased collective arms."

And I do not disagree at all.

I also think it is quite simpy absurd, in the 21st century, to say that "a well regulated militia", as distinct from a standing army with access to the appropriate equipment and to additional personnel when necessary, is "necessary to the security of a free state". It seems to me that a standing army with access to additional personnel -- through laws providing for conscription, the existence of a trained reserve, and/or whatever other measures are regarded as necessary and appropriate -- IS a "well regulated militia".

The people -- collectively -- DO keep and bear arms by organizing and maintaining that army. The real interest in question -- the collective interest that the people HAS in the security of the free state, the collective purpose of preserving that free state's security -- IS protected by organizing and maintaining that army.

I see absolutely nothing in the 2nd amendment to suggest that the real interest in question was any individual interest that any person has in owning firearms for any personal purpose of his/her own.

Again -- I am NOT disagreeing with your conclusion. I'm only saying that the path you take to that conclusion doesn't lead to it, because you are misconstruing the meaning of "collective right", and using an argument that would support the conclusion that the right in the 2nd amendment is actually an individual right.

That does not make your conclusion incorrect, it just makes your particular argument for that conclusion unsound because one of the premises (that a "collective right" is something that each and every one of the individuals in the group has, personally) is incorrect.

If we use the correct premise -- that a "collective right" is something that belongs to a group as a whole, as a single unit, and not to the members of that group individually and personally -- it can still be argued that the 2nd amendment right is a collective right, and that argument is arguably valid.
;)

.

[hansberrym]

99. thanks for clarifying

the meaning of collective versus individual rights.

If in your study of this topic, you come across any contemporary
usages or references to the phrase "the right of the people to keep and bear arms"(or similar) which would indicate that an exclusively collective meaning would apply, please let me know.


So far, I have not found any. Though there are references to this phrase which would indicate that the right at a minimum included an individual right. (Note that Tench Coxe's statement regarding "private arms" does not lend itself to an exclusively Collective rights argument, Nor did one of the proposed Amendments from the Pennsylvania Minority which read "That the people have a right to bear arms in defense of themselves and thier own state, or the United States,..." The word "themselves" precludes an exclusively Collective meaning to the phrase. Note that both of these references were widely published at the time.

There are other references such as Madison's proposed placement of the Amendments, and various comments made by both Federalists and Anti-federalists which indicate that the amendments concerned individual rights. See the 9th circuit's Siviera opinion for a discussion of each of these references from a Collective Rights point of view.


The 9th Circuit has twice found that the right to bear arms is a collective right (Silviera recently, Hickman earlier). Yet they can not cite any contemporary references in support of an exclusively Collective Rights meaning to the phrase "the right of the people to keep and bear arms".

In the absence of any citations that would support a collective rights argument for the phrase "the right of the people to keep and bear arms", and with the existence of citations showing unambiguously that there was at a minimum some individual right intended, would your conclusion change?

My problem with the 9th Circuit is that thier conclusion is not supported by the known facts. Some of the known facts are addressed, but then dismissed as not providing concrete proof of an Individual right -as opposed to a collective right -while at the same time the court holds firmly to an exclusively Collective Rights interpretation for which they can not provide direct evidence, and for which the known evidence would tend to disprove.

One further point. From your latest post it seems that you have not yet fully considered that the Second Amendment might both recognize an individual right to self-defense and at the same time provide security to a free state by insuring the continuance of a well regulated militia(a collective purpose).

The above interpretation has the most appeal for me since it is not in conflict with the known facts, and is supported by direct evidence. Occam's razor would seem to favor this interpretation since no special theories or exceptions are needed to explain away the inconsistencies of either an exclusively Individual Rights or an exclusively Collective Rights theory.

[iverglas]

106. it's all extremely interesting

And so far, I've been approaching it kind of as a closed-book law school exam. I have to admit that I haven't read the decisions in question; I've actually kind of deliberately not done that, in an effort to analyse the actual words of the amendment without outside input. I will read them of course, soon ...

"If in your study of this topic, you come across any contemporary usages or references to the phrase "the right of the people to keep and bear arms"(or similar) which would indicate that an exclusively collective meaning would apply, please let me know."

Outside the US, I just don't know of any such thing. Really.

No such individual "right" (i.e. as a separate head of rights) has ever been recognized in places like Canada and the UK. At present, international efforts, and domestic efforts in most societies, are directed toward disarmament at both the individual and collective levels, given the nature and extent of the threat that armament, both individual and collective, poses.

Certainly the right of collective self-determination and self-defence is universally recognized. All of the international treaties regarding aggression, all of the UN resolutions regarding colonialism, for example, are to that effect.

Now, it indeed is not common for countries to have domestic provisions relating to the right of collective self-defence. It kind of tends to be a given, I guess, that a society that organizes itself into a state intends to exercise that right. But a "people" that is under threat, that has been unable to exercise, or has only recently been able to exercise, its collective right of self-determination might well think to make express provision stating that right in its foundational documents.

The UN Charter expressly recognizes it:

http://www.un.org/aboutun/charter/

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

This can be confusing; I'm pretty sure that the "individual" in question is the state, and the "collective" in question is the state and its fellow attack-ees or allies. So what is called the "individual right of self-defence" is actually what we're calling a "collective right of self-defence", since the "individuals" who are parties to and subject to these rules are in fact "collectives" -- it is the "collective right" of individual states.

Note that Tench Coxe's statement regarding "private arms" does not lend itself to an exclusively Collective rights argument, Nor did one of the proposed Amendments from the Pennsylvania Minority which read "That the people have a right to bear arms in defense of themselves and thier own state, or the United States,..." The word "themselves" precludes an exclusively Collective meaning to the phrase.

Of course you're way ahead of me on the details, but that's cool.

I don't agree that the use of the word "themselves" necessarily precludes an exclusively collective-rights meaning for the "right to bear arms". The phrase could mean "in defence of themselves collectively" just as well as "in defence of themselves individually". Given the context, which really is a statement having to do with the defence of the state (in either sense), I don't really see why an individual right would have been tossed into the mix.

It's awkward, in English, to say "the people has a right to bear arms in defense of itself". I don't think we can infer from the grammatical structure alone that "the people ... themselves" means "individuals ... each of them".

In modern usage, individual rights are pretty much always expressed in the singular: "everyone", or "a person", and so on, or "no one" where a right is expressed negatively ("no one shall be subject to ..."), which is also a somewhat outmoded way of expressing a right.

I know that other individual rights (e.g. search & seizure) are expressed in the plural in the US constitution. I really do think that the framers had no idea what issues might arise as history progressed, and yes, one should probably try to figure out what they meant by the words they used. In the search and seizure case, it's obvious that the meaning can only be "individual".

The big problem I have is the whole idea of "preambles". There are whole doctrines about the use of preambles in interpreting legislation. Basically, they can be useful in grasping intent, but they can never override the express provision of a statute.

The first parts of your 2nd amendment are really a preamble. They remind me of French legislative drafting, and how English legislative drafting has diverged from what were practices more common to the two at the time. In English/common law, we tend to be very specific and plain in our drafting. We don't toss around things like "however", "in addition", and other (to us) vague and pointless verbiage like motherhood statements about the security of free states. A statutory provision does not need to contain an explanation of itself, in our view, and should be plain and understandable without any internal reference to any reason for its existence.

If we want to say that individuals have a right to do something, these days, we say "Everyone has the right to ...", or "Any person ...". If we want to say that collectives have a right to do something, we use language that refers to collectives (e.g., in the Canadian constitution, "The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges").

And we keep our preambles in preambles. In the case of the 1982 Canadian constitution: "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:". The reference to the rule of law might actually come in handy some day in some interpretational quagmire or other; recognition of the supremacy of god isn't likely to help much.

History that I think worth remembering is that the US had just won its independence -- its security as a free state -- by force. That security was kind of an important concern in the framers' minds, I'd say. We might contrast that with Canada, whose independence was a result of negotiation, both internally and with the external power. The collective right of self-defence and self-determination wasn't something that our framers were particularly concerned about at the time.

This might tend to make me think it unsurprising to find a collective-rights provision of that sort in your constitution, since one of the whole big points of what your founders were up to was to secure that security.

"In the absence of any citations that would support a collective rights argument for the phrase 'the right of the people to keep and bear arms', and with the existence of citations showing unambiguously that there was at a minimum some individual right intended, would your conclusion change?"

Well, I do think we can't just set out logical thinking caps aside altogether, and even if we did exclusively as you suggest, and look for contemporary explanations of the provision, we can't be certain of the intent. No one statement of intent would be sufficient, of course, and not even a bunch of statements of intent would be. Legislators, and framers, not infrequently have different personal intents for what they do. (Even if, as I assume, some of the statements you refer to were joint statements.) Courts do find that even if there is some clear extraneous statement of intent, it is the words of the provision that govern. Those words will always be the first source for intent, and extraneous sources will be consulted only where the words themselves are ambiguous, to put it simplistically.

And efforts must be made to find a meaning in the words that is not absurd, of course. If there are two equally possible meanings, one of which is absurd, the other will govern. That would be the average non-USAmerican's response to this particular problem, perhaps! It is simply absurd to think that your founders intended to confer an unfetterable right on anyone, to possess any and all firearms, or arms of any kind, for any purpose, and in any manner. Jest jokin'.

"My problem with the 9th Circuit is that thier conclusion is not supported by the known facts. Some of the known facts are addressed, but then dismissed as not providing concrete proof of an Individual right -as opposed to a collective right -while at the same time the court holds firmly to an exclusively Collective Rights interpretation for which they can not provide direct evidence, and for which the known evidence would tend to disprove."

I suspect that my problem with that would be as described above, that it calls for outside sources to be consulted when it is not necessary, and therefore not proper, to do so. The "direct evidence" for the interpretation would be the words themselves. Just a suspicion.

"One further point. From your latest post it seems that you have not yet fully considered that the Second Amendment might both recognize an individual right to self-defense and at the same time provide security to a free state by insuring the continuance of a well regulated militia(a collective purpose)."

I guess you are remembering that in my first I did muse that it was possible that there was a collective right asserted, with an accompanying individual right based on the framers' understanding that the collective right could not be exercised unless there were a "supporting" individual right. This would be strange by modern standards. But not inconceivable in the context.

This kind of framing creates such problems; that's why we just don't do it nowadays. We don't say in constitutions, for instance and off the top of my head, "unemployment is a terrible problem and we need to be sure that our population is healthy, and therefore everyone has a right to receive a guaranteed annual income regardless of whether s/he works or not". We know that at some time in future, unemployment might not be a problem at all, and a guaranteed annual income regardless of work status might not be necessary, or even a good idea. We would have saddled ourselves with a constitutional statement that unemployment is a terrible problem when it isn't, and a rule that nobody has to work that is not only useless, but harmful, in different circumstances. At the time, it might have seemed wise to entrench such a "right". Now, in the future, it's bizarre and operates to the complete contrary of its stated intent: keeping the population healthy, which isn't possible if nobody works. But anybody who didn't want to work could point at the amendment and say "unemployment is a terrible problem!" A well-regulated militia is essential to the security of a free state, you know. Statements of fact just don't belong in legislation, we now know.

You guys are stuck with the "unemployment is a terrible problem" in a time of full employment problem. Me, I'd get a new constitution. That's what we did! But it's something we were able to do, partly because we were starting from scratch when it came to entrenched rights, and largely because we did have a very broad and complete consensus as to what we wanted in it; I quite realize that you aren't and don't.

"The above interpretation has the most appeal for me since it is not in conflict with the known facts, and is supported by direct evidence. Occam's razor would seem to favor this interpretation since no special theories or exceptions are needed to explain away the inconsistencies of either an exclusively Individual Rights or an exclusively Collective Rights theory."

I do indeed take your point. I am not persuaded that it is more faithful to the original intent, as expressed in the words themselves, than any other interpretation. I don't see the collective-rights interpretation as absurd and thus calling for a search for alternatives. I do think that the exclusively individual-rights interpretation is too inconsistent with the words to fly. And even if it did, I can't see how the "individual right" in question could be anything other than to bear arms in the service of the exercise of the collective right ... not some generalized, non-specific, all-encompassing right of anyone to bear arms anytime, anywhere, in any manner and for any purpose.

For me, of course, this is an exercise in statutory construction. I quite appreciate that it's more than that for the people whose constitution this is in. For that reason, plus the fact that I have not bothered to acquire the knowledge that I'd need even if I were to attempt the definitive interpretation, I'm still not stating an opinion! Just somewhat informed impressions, "informed" in the sense that I am informed in the ways of the interpretation of legislation and constitutions.

One other thing I'd just note is the Canadian approach to constitutional interpretation, which is that the constitution is a "living tree". It was meant to evolve, not to remain static. We pay far less attention to what anyone who was involved in writing it intended, and much more attention to the needs of our modern society, at whatever point we may be. Just so you know where I'm coming from on this, in case it's of interest, the following is taken from the 1998 Supreme Court of Canada decision in Reference re Secession of Quebec, in which the Court outlined the requirements that would have to be met if the "people" of Quebec wished to exercise its (claimed) collective right to self-determination by seceding from Canada. Only in Canada, eh?


http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html

50 Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), <1987> 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. As we recently emphasized in the Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of law principle in the Manitoba Language Rights Reference, supra, at p. 750, we held that "the principle is clearly implicit in the very nature of a Constitution". The same may be said of the other three constitutional principles we underscore today.

51 Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.

52 The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, <1930> A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), <1993> 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.

53 Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, <1985> 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text".

54 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". It is to a discussion of those underlying constitutional principles that we now turn.

(The principles in question in Canada are "federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play" in a particular case.)

.

[hansberrym]

118. reply

It's awkward, in English, to say "the people has a right to bear arms in defense of itself". I don't think we can infer from the grammatical structure alone that "the people ... themselves" means "individuals ... each of them".


I disagree. The better inference is that the "the people" is not meant to be interpreted collectively. To say otherwise requires an assumption (i.e. that grammar was sacrificed to reduce awkwardness).



I suspect that my problem with that would be as described above, that it calls for outside sources to be consulted when it is not necessary, and therefore not proper, to do so. The "direct evidence" for the interpretation would be the words themselves. Just a suspicion


Since we agree that there is more than one possible construction that could be placed on the amendment as it is written, it is necessary to look to other evidence, such as statements made by the drafters regarding the meaning of the amendment at the time of its ratification, to answer the question without resorting to circular arguments, or to undue influence of one's gut feelings on the matter (You did say that you could not wrap your brain around the concept of an individual right to bear arms).


Since I live a State with a right to bear arms amendment similar in wording to the Second Amendment (that has always been held to be an individual right), I also came to the argument with some preconceptions. Only by reading as much as I could from both sides of the issue, did I come to my conclusion.


Note that the amendments were debated in public and in the respective Houses before ratifying. Then debated again when sent to the individual States for approval. There is ample congressional record and other historical records such as contemporary newspaper accounts to add to the available evidence. As I said earlier, I have not found any evidence that would tend to exclude a meaning that at least included an individual right, but I have found many references that would tend to exclude an exclusively Collective Rights interpretation.


You might consider Laurence Tribe's experience with the Second Amendment. As in your case, he began looking only at the text and did not undertake a historical review. He concluded, after a less than complete analysis, that the amendment should be read as a collective right. But later after studying the historical and legislative record regarding the Second Amendment, he came to a different conclusion.
It is worth noting that early legal commentators held views much closer to Professor Tribe's more recent analysis.

[iverglas]

128. heh again

"You might consider Laurence Tribe's experience with the Second Amendment. As in your case, he began looking only at the text and did not undertake a historical review."

I'm pleased to find that I'm in such apparently exalted company!

"He concluded, after a less than complete analysis, that the amendment should be read as a collective right. But later after studying the historical and legislative record regarding the Second Amendment, he came to a different conclusion."

Who knows, I might too. Then I'd just have to recommend that the thing be repealed, as inappropriate in a modern society. Lots of things get outmoded and ought to be done away with, by the people who, unlike the ones who invented the things, are having to live with them now. I'm sure we'd all have our favourite examples of such things.

;)

Now I have to decide whether to read the historical documents first, or his analysis first.

Or do some work sometime.

.

[MrBenchley]

101. To clarify

"It is just as faulty to say that the 2nd amendment right is a collective right because "collective right" is what we call a right that belongs to each person in a society. "
Earleir someone tried to float the idea that the collective right could not exist without each member having the individual right.....which IS rubbish. And for anyone who doubts that, I'd invite them to print their own currency.

"It is simply meaningless to say that EACH PERSON has the right to be secure in a free state, since there is simply no way that such a right could be exercised by an individual. Each person might have a right to security and freedom within a state, but does not have a right to the security and freedom of the state itself, i.e. a state free from outside interference, secure within its borders -- certainly not in the classical liberal rights theory that is the underpinning of the US state."
True....what the second amendment does is give each state the right to form its own milita....what we today call the National Guard. Which is what the courts and the Founding Fathers both assert clearly.

[iverglas]

104. yep

"Earleir someone tried to float the idea that the collective right could not exist without each member having the individual right.....which IS rubbish. And for anyone who doubts that, I'd invite them to print their own currency."

Yes, that is the point. A collective right is something that can only be exercised collectively. A people's collective right to self-determination as a people is not something that can be exercised by an individual.

It may be that some collective rights cannot be effectively exercised unless the individuals in the "collective" have certain other, individual rights. There is a degree of inter-connectedness. The collective right to self-determination would be hard to exercise if, say, the individuals in the people in question did not have the right of free speech, so that they could try to rally support for their cause without getting tossed in jail. But still, the existence of the collective right is not dependent on the existence of individual rights.

That's why I mentioned the preamble to the Universal Declaration of Civil and Political Rights, which acknowledges the universal recognition that the free exercise of individual rights is a prerequisite to the freedom and security, i.e. the exercise of the collective rights of freedom and security, of peoples.

I can see that your founders might have thought that the individual possession of arms was a prerequisite to the security of a free state. I'd say that the plain fact is that legislative drafting in the 18th century just wasn't up to snuff by our present standards, and of course rights theory was pretty rudimental by those same standards, and the result in the 2nd amendment is a dog's breakfast. And that's about the only firm conclusion I can draw, I'm afraid!

.

[MrBenchley]

105. In fact

"I can see that your founders might have thought that the individual possession of arms was a prerequisite to the security of a free state."
The RKBA crowd across the internet often drags out a spurious quotation from Samuel Adams proposing an amendment to the Massachusetts ratifying convention such that the US Constitution should "never construed...to prevent the people of the United States who are peaceable citizens, from keeping their own arms."
But in fact, the Massachusetts ratifying convention voted to turn down that specific proposition.

[BullDozer]

108. Points

True....what the second amendment does is give each state the right to form its own milita....what we today call the National Guard.

Not true, not even close to true. If your claim is to have any glimmer of hope at being anything less than totally false please address the following points:


1)
Section 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) 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.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=10&sec=311

How can the militia be limited to the National Guard if to be part of the unorganized milita as defined a person must not be a member of the national guard? (please note that this very same point was made to you in post #25 On 8/29)

If you can somehow concoct a reasonable answer to that then please procede on to point two.

2)
Please expand upon how the right for a state to form a state militia which you claim is the National Guard can exist when the National Guard is raised under the authority of Congress to raise an army. The National Guard is part of the Army, and not the militia.

This is made clear in the 1990 Supreme Court case Perpich vs. Department of Defense. Then Minnesota Gov. Rudy Perpich claimed the DoD violated the Constitution when it ordered the Minnesota National Guard (which he claimed was the 'state militia') to duty outside the state without his consent or that of the state legislature.

The Supreme Court ruled against Perpich. It held the National Guard is an integral component of the US Army Reserve system (it has been since 1916). It further supported its ruling by specifying the difference between the “special militia” (in this case the Minnesota Guard) instead of the “general militia” (citizens with privately procured and owned arms) as expressed in the 2nd Amendment.

Basically the National Guard does exactly what the federal government tells it to do regardless of what the Governor in their home state wishes.

Since 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States. Their National Guard enlistment (Federal) takes priority.

[MrBenchley]

111. Peddle it to someone dumb enough to buy it

"How can the militia be limited to the National Guard if to be part of the unorganized milita as defined a person must not be a member of the national guard?"
How the hell is "unorganized" synonymous with "well regulated?"

[BullDozer]

114. Still dodging I see

Even though you have failed to address the actual points I raised I will respond to your question.

How the hell is "unorganized" synonymous with "well regulated?"

The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several States, and the remainder of which was then described as the "reserve militia," and which later statutes have termed the "unorganized militia." The statute created a table of organization for the National Guard conforming to that of the Regular Army, and provided that federal funds and Regular Army instructors should be used to train its members. 11 It is undisputed that Congress was acting pursuant to the Militia Clauses of the Constitution in passing the Dick Act.

< Footnote 11 > The Act of January 21, 1903, 32 Stat. 775, provided in part:

"That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes - the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia."

Section 3 of the 1903 Act provided in part:

"That the regularly enlisted, organized, and uniformed active militia in the several States and Territories and the District of Columbia who have heretofore participated or shall hereafter participate in the apportionment of the annual appropriation provided by section sixteen hundred and sixty-one of the Revised Statutes of the United States, as amended, whether known and designated as National Guard, militia, or otherwise, shall constitute the organized militia."

http://www.agh-attorneys.com/4_perpich_v_department_of_defense.htm

In the 18th century, a "regular" army meant an army that had standard military equipment. So a "well regulated" army was simply one that was "well equipped" and organized. It does not refer to a professional army. The 17th century folks used the term "standing army" or "regulars" to describe a professional army. Therefore, "a well regulated militia" only means a well equipped militia that was organized and maintained internal discipline. It does not imply the modern meaning of "regulated," which means controlled or administered by some superior entity.


Alexander Hamilton: "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. 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. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped" – Alexander Hamilton, Federalist No.2

[MrBenchley]

122. What a pantload

"a "well regulated" army was simply one that was "well equipped" and organized."
And how is that synonymous with unorganized?

[BullDozer]

123. Ask and answered

The answer to your question IS contained in post #114.

The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several States, and the remainder of which was then described as the "reserve militia," and which later statutes have termed the "unorganized militia." The statute created a table of organization for the National Guard conforming to that of the Regular Army, and provided that federal funds and Regular Army instructors should be used to train its members. 11 It is undisputed that Congress was acting pursuant to the Militia Clauses of the Constitution in passing the Dick Act.

[MrBenchley]

126. In other words, it's a load of RKBA hooey

Now go pretend that "unorganized" means "well regulated" with someone dumb enough to buy it.

[BullDozer]

132. Tsk tsk tsk

Now go pretend that "unorganized" means "well regulated" with someone dumb enough to buy it.

Explain why well regulated is supposed to mean the same thing as the clearly defined under law unorganized militia.

Please address how you can interpret will regulated to mean anything other than a well equipped militia in the face of the fact that the people who wrote the bill of rights had just fought a war to separate themselves from a monarchy that was exerting far too much control over them. Do you really expect anyone to believe that they included a clause that said more laws were required?

Should you handle that task, most likely by ignoring the challenge, then please address this thought a "well-regulated" (i.e. "organized, well-functioning, well equipped") militia requires an armed populace first, as the militia is to be formed from the populace and they are expected to supply their own arms. That's why the unorganized militia is required. They form the pool from which the organized militia can draw to increase its size in times of emergency.

Why don't you tell us exactly what you think well regulated means?

[MrBenchley]

136. In other words it is RKBA hooey

"Why don't you tell us exactly what you think well regulated means?"
It sure as hell doesn't mean "unorganized" on planet earth, dozer. Now go play your silly pseudo-semantic games with the nutccases on highroadrage.com.

[BullDozer]

138. and?

Are you going to attempt to make a lucid arguement and supply proof to back up that position or just rely on shouting about it?

[MrBenchley]

142. And it is RKBA hooey

Now go pretend "unorganized" means "well regulated" somewhere else.

[BullDozer]

145. Still waiting for proof from you

Go pretend that you have a case to make somewhere else, not another thread, maybe looney.com.

[MrBenchley]

147. Head to the nearest dictionary

and look up "regulated" and "unorganized". Then go peddle your rubbish to someone dumb enough to buy it..

[BullDozer]

150. That won't work for your claim

First you are going to have to explain in exactly what way you can realistically define, twist, fold, spindle, or mutilate the term "well regulated" so that it will somehow negate the existence or legitimacy of the unorganized militia which is clearly defined in US Code.

Sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section 313 of
title 32, under 45 years of age who are, or who have made a declaration
of intention to become, citizens of the United States and of female
citizens of the United States who are members of the National Guard.
(b) 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.

http://www.access.gpo.gov/uscode/title10/subtitlea_parti_chapter13_.html

[MrBenchley]

156. The hell it won't...

Now go pretend "unorganized" and "well regulated" are synonymous elsewhere.

[BullDozer]

159. Once again

The existence and composition of the unorganized militia is clearly defined in US Code.

Even the bradybunch aren't desperate enough yet to try and base their opposition to the Second Amendment the way you are trying to spin it.

[MrBenchley]

166. And once again....

unorganized and well regulated are polar opposites. Now go play "let's pretend" with some gun nut.

[BullDozer]

169. Do you bother to read?

http://www.constitution.org/mil/mil_act_1792.htm

Looks like regulation to me if that's the argument you are trying to make but are failing to elaborate upon. It's an argument that even the bradybunch aren't dishonest enough to try and make.

Now which way do you want to spin off into?

[MrBenchley]

174. Go play your semantic games

with dumb enough to think unorganized and well regulated are synonymous.

[BullDozer]

179. The ganmes are all yours

Explain in exactly what way you can realistically define, twist, fold, spindle, or mutilate the term "well regulated" so that it will somehow negate the existence or legitimacy of the unorganized militia which is clearly defined in US Code.

Except for your spouting of drivel you haven't made a case.

[MrBenchley]

182. "unorganized" does NOT mean "well regulated"

no matter how much you pout.

[BullDozer]

184. and?

Well regulated does not eliminate the validity of the unorganized militia no matter how hard you bellow or are you going to actually make a case for your claim?

[MrBenchley]

185. and you're still pouting

"Well regulated does not eliminate the validity of the unorganized militia"
HAHAHAHAHAHAHAHAHAHAHA!

And since Professor Amar says there's no adjective in the Second Amendment....oh wait! There IS one and it's NOT unorganized.

[BullDozer]

187. Where?

Show that it does.. come on show some proof.

[MrBenchley]

189. Been there....done that

What is that qualifying adjective in the Second Amendment...the one Professor Nutso claims doesn't exist? Oh yeah, "well regulated"....not "unorganized."

[Shanty Oilish]

191. Here's 2 good links

http://www.sff.net/people/pitman/2ndamend.htm

Gives some insight on what they were thinking when they cooked up 2A.

US v. Emerson 2A Schools of Thought:

http://www.guncite.com/court/fed/46fsupp2d598.html

[hansberrym]

68. your premise os flawed

Professor Amar was actually commenting on the merits of a recent 9th Circuit opinion (Silviera) in which that court tries to interpret that term "militia" as synonomous with "state militia" or "State military force" dispite the Supreme court precedent (Miller) which stated clearly the history of the Second Amendment and the use of the term "militia" as relating to " all males physically capable of acting in concert for the common defense" .

MrBenchly's entire argument in this discussion is based on a sleight of hand attempt to impune the arguments of Mr. Amar by taking them out of the context of the discussion in which they were made.


Mike

[MrBenchley]

72. Yeah, surrrrrrrre....

THAT's why he's pretending there's no adjective there.......

[hansberrym]

76. more smoke and mirrors from MrBenchley

"THAT's why he's pretending there's no adjective there......."


The adjective which Mr. Amar objects to is the word "state" placed in front of "militia" as urged by the 9th circuit in Silviera.
You continue to take Mr.Amar's comments out of context, at the same time claiming others are dishonest.

Please read the Siliera opinion and then decide if you agree or disagree with Mr. Amar's point of view.

If your mistake concerning the context of Mr. Amar's comments is an honest one, then we can continue debating the question. But if you are actually aware of the context of Mr.Amar's argument, but are taking his words out of context on purpose, then there is no reason to continue a dialogue with you.

[MrBenchley]

82. It's professor nutso trying to make the adjective disappear

"The adjective which Mr. Amar objects to is the word "state" placed in front of "militia" as urged by the 9th circuit in Silviera."
Really? Was Silviera delivered in 1789?

Here's the quote again from professor nutso: "In 1789, when used without any qualifying adjective, 'the militia' referred to all citizens capable of bearing arms."

But in fact, in 1789, the Founding Fathers put quite a specific qualifying adjective right in front of the word "militia."

[hansberrym]

91. Neither Mr. Amar or anyone else

would dispute the wording of the amendment. You have not made some earth shattering discovery which no one else was wise enough to understand. If you want a gremmar lesson, see "the Unabridged Second Amnedment" which is also posted on this forum.

What I am objecting to is your continued, and dishonest, approach to this argument. You continue to take Mr. Amar's comments out of the context in which they were made, and then you suggest he is lying.

[hansberrym]

92. more...

Prof. Amar on the 2nd Amendment


For those interested in knowing the facts, search the above article by Professor Amar. You will see that he discusses the use of the term "well-regulated" rather than ignoring it as MrBenchley Claims.

The Collective Rights avocates have been urging for the last three decades or so an interpretation of the term "milita" to be equivalent to "state militia" (See the most recent attempt in the 9th Circuit Silviera decision for details)


It is the addition of the qualifier "state" as in the Collective Rights argument

"militia" = "state militia" that Mr. Amar refers to.

Perhaps the thread should be renamed the Amazingly Dishonest Mr Benchley!

[MrBenchley]

103. What a pantload

"The Collective Rights avocates have been urging for the last three decades or so an interpretation of the term "milita" to be equivalent to "state militia" "

Actually it is only in the last thirty years that anyone ever even considered any other rmeaning...and then only as the result of outright fraud commissioned by the National Rifle Association.

[hansberrym]

115. reading really can be fun, you should try it.

your statement "Actually it is only in the last thirty years that anyone ever even considered any other rmeaning...and then only as the result of outright fraud commissioned by the National Rifle Association." could not be further from the truth.

Below are a few quotes regarding the Second Amendment from well before your supposed timeline.






Federalist Tench Coxe, in a widely republished article, described what would become the Second Amendment this way:
"As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."



6. 19th Century Commentary
The great Constitutional scholars of the 19th Century recognized that the Second Amendment guarantees the right of individual Americans to possess and carry firearms. We list their contributions in the order in which they were made. First, St. George Tucker:
"8. 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. Amendments to C.U.S. Art. 4.
This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."

[MrBenchley]

144. Evidently lying is more fun for the RKBA crowd

"Federalist Tench Coxe,"
Real-l-l-l-ly....DO tell us what Federalist paper Tench Coxe wrote.

"John Adams described Coxe as a "wiley, winding, subtle, and insidious character.""

http://toto.lib.unca.edu/findingaids/mss/speculation_lands/biographies/tench_coxe.htm

And the somewhat obscure St. George Tucker never rose above district court judge...

[MrBenchley]

102. The hell he doesn't

He is clearly pretending that there is no adjective, and discussing 1789 as if there were none.

[hansberrym]

133. please read the...

below excerpt from "Professor Amar on the Second Amnedment"
by David Hardy.


In the federal system of America, however, Article I, section 8, clause 16 of the Constitution explicitly devolved upon state governments the power of "Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress "...

The states' rights reading puts great weight on the word "militia," but this word appears only in the Amendment's subordinate clause... What's more, the "militia" as used in the Amendment, and in clause 16, had a very different meaning 200 years ago than in ordinary conversation today. Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but 200 years ago, any band of paid, semiprofessional, part-time volunteers, like today's Guard, would have been called "a select corps" or "select militia" and viewed in many quarters as little better than a standing army. <162> In 1789, when used without any qualifying adjective, "the militia" referred to all Citizens capable of bearing arms. <163> The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspection the "militia" is identical to "the people" in the core sense described above.

A more plausible bit of text to stress on behalf of a states' rights reading is "well regulated." <167> It might be asked, who, if not state governments, would regulate the militia and organize them into an effective fighting force capable of deterring would-be tyrants in Washington? And does not the right to "regulate" subsume the right to prohibit, as the Supreme Court has explicitly recognized in commerce clause cases such as Champion v. Ames? <168> And if so, how can a provision designed to give state governments broad regulatory power over their Citizens' arms-bearing be incorporated against states to limit that very power?


Profeesor Amar then goes on to answer these questions regarding the phrase "well-regulated".


It is clear from the context of the following quote

"In 1789, when used without any qualifying adjective, "the militia" referred to all Citizens capable of bearing arms"

that the qualifying adjectives Mr Amar was referring to were "state" as in "state militia" , and "select" as in "select militia".

Contrary to Mr Benchley's implications, Mr Amar did not ignore the phrase "well regulated", in fact he goes into a detailed discussion of this term in the very next paragraph after the quote cited by Mr. Benchley.

For a more detailed discussion of the term "militia" from a collective rights point of view see Silviera v. Lockyear US 9th Circuit. This will also give an explanation for why it is so important for the Collective rights and States rights arguments to define the term "militia" as meaning the same as "state militia".
The Collective rights position is that the first part of the Second Amnedment should be read narrowly, which then gives justification for reading the substantive portion norrowly also.

[MrBenchley]

137. Great, what a pimp thinks of a prostitute...

This would be the same David Hardy who was trying to get Michael Moore's Oscar revoked? Go peddle that nutcase's crap to somebody dumb enough to fall for it.

[hansberrym]

152. I would never consider

peddling Michael Moore's dishonest nut-case crap even to someone dumb enough to buy it, or fall for it.

[MrBenchley]

157. Tough titty, then

Guess you and this nutcase you dug up have to wait until they take back Moore's Oscar...

Perhaps if you pout louder, it might happen...

[hansberrym]

153. I would never consider

peddling Michael Moore's dishonest nut-case crap even to someone dumb enough to buy it, or fall for it.

[MrBenchley]

175. Moore makes his case well enough himself

which is why idiots like this "take back the oscar" moron are whining about it.

[hansberrym]

177. we have reached the heart of the matter

This thread might be summed up as a referendum on what constitutes a morally and intellectually honest argument.

Mr.Benchley apparently believes that it is acceptable to quote a person out of context for the purpose of impuning that person's arguments and character. He also engages in making knowingly false statements (such as the claim made in this thread that an Individual Rights interpretation of the Second Amendment did not exist prior to 1975).

Those who agree with him stand on one side of a larger issue than the Second Amendment.

Does anyonwe remember the case of the TV "news" show that staged an exploding pick-up truck to highlight the dangers of side mounted gasoline tanks? What was not told to the viewers of this "documentary" was that the wrong gas cap was used and an incindiary device was employed to start the fire. This "news " show was forced to retract and apologize for thier dishonest reporting.
Had they simply disclosed the facts and presented the exploding truck sequence as a simulation of what might happen, instead of a documentary of what did actually happen, they would have been on firm ground.

[hansberrym]

178. we have reached the heart of the matter

This thread might be summed up as a referendum on what constitutes a morally and intellectually honest argument.

Mr.Benchley apparently believes that it is acceptable to quote a person out of context for the purpose of impuning that person's arguments and character. He also engages in making knowingly false statements (such as the claim made in this thread that an Individual Rights interpretation of the Second Amendment did not exist prior to 1975).

Those who agree with him stand on one side of a larger issue than the Second Amendment.

Does anyonwe remember the case of the TV "news" show that staged an exploding pick-up truck to highlight the dangers of side mounted gasoline tanks? What was not told to the viewers of this "documentary" was that the wrong gas cap was used and an incindiary device was employed to start the fire. This "news " show was forced to retract and apologize for thier dishonest reporting.
Had they simply disclosed the facts and presented the exploding truck sequence as a simulation of what might happen, instead of a documentary of what did actually happen, they would have been on firm ground.

[Name removed]

183. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MrBenchley]

192. Yes we have...

"Mr.Benchley apparently believes that it is acceptable to quote a person out of context for the purpose of impuning that person's arguments and character."
Character is as character does. I'm not the one pretending there was no qualifying adjective in 1789...that's dishonest Professor Nutso.

"Those who agree with him stand on one side of a larger issue than the Second Amendment. "
Yeah, mostly whether we're going to lie down and let another corrupt industry peddle lies to infludence public policy, as the GOP wishes.

[Pert_UK]

113. When used without any qualifying negation.....

"Thou shalt kill" forms an essential tenet of Judaeo / Christian religion...

:evilgrin:

Haven't read the article, but it seems to that the professor is making quite an odd point - if you overlook what it actually says, it means something else.

If the Prof is just examining the semantics of the statement, term by term, then it's totally legit to explain the meaning of a term out of the context of the document, provided the meaning of the term is not distorted.

It would, however, be dishonest to analyse a term in isolation and then claim that the entire document meant something else, when you've ignored an important point of qualification.

[hansberrym]

116. does it make more sense to offer an opinion

before or after reading the actual article?

Search for: Professor Amar on the Second Amendment
(copywrited article)

You will note that the adjective that Mr Amar disagrees with is the
word "State" placed in front of "state militia" as in the Collective rights argument.

Note also the Mr Amar actually adrresses the phrase "A well regulated militia in the very next paragraph of this article.

The only dishonesty here is on Mr Benchley's part.

[Pert_UK]

117. Yes, because of 2 things....

1. I was kinda being facetious

2. I didn't offer an opinion either way. Having stated (for the sake of honesty) that I hadn't read the article, I said that if the prof was doing one thing then it was legitimate academic investigation, if he was doing something else then it wasn't.

Mr B interprets it one way, some other people are taking it another. I was merely pointing out that it could be taken one way or the other, in the hopes of clarifying the argument.

[iverglas]

127. heh

"I didn't offer an opinion either way. Having stated (for the sake of honesty) that I hadn't read the article, I said that if the prof was doing one thing then it was legitimate academic investigation, if he was doing something else then it wasn't."

Just like me 'n the 2nd amendment (right in this very thread)! --

"Mr B interprets it one way, some other people are taking it another. I was merely pointing out that it could be taken one way or the other, in the hopes of clarifying the argument."

... as I've approached the 2nd amendment.

So far, nobody's mischaracterized my musings about that as an opinion I have stated I don't have, and I am mightily gratified by this.

Maybe you and I can find something to argue about? It could be most diverting.

;)

[Pert_UK]

131. ROFL! This is certainly the right room for an argument......

"Argument isn't the automatic gainsaying of my position, that's just contradiction!"

"No it isn't!"

"Yes it is!"

"Look, if I want to argue with you I have to take up a contrary position"

"But that's not just saying 'No it isn't'"

"Well it can be!"

And so forth.......

My problem is that I learned to argue by studying logic and philosophy at university......I suppose that it's naive to assume that everybody else is going to play by all the rules of Modus Ponens, Reductio Ad Absurdum or logical necessity........or even read what I've written! That's not to say that I would ever consider my opinion to be better than anyone else's, but quite often I believe that my argument is a little more rigourous.

P.

[hansberrym]

119. how about - Thou shall not

bear false witness,

or perhaps, Ignorance is no defense.




Suppose someone were to say...

I heard that Pert_UK is a (fill inn the blank), and hey, I'm not saying its true, but it might be.


Would this pass for christian behavior in your opinion?

[Pert_UK]

120. Hmmm............

Are you criticising me or Mr B.?

Mr B has accused him of misleading, I've merely said that he could be doing one thing or something else, depending on your interpretation.

And by the way...I AM a (fill in the blank)!

:evilgrin:

P

[hansberrym]

160. Read the actual quote in the context that it was written.

Below is the excerpt from "Professor Amar on the Second Amendment"
by David Hardy, from which the Amazingly dishonest Mr.Benchley
extracts Mr Amars's words out of context.


In the federal system of America, however, Article I, section 8, clause 16 of the Constitution explicitly devolved upon state governments the power of "Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress "...

The states' rights reading puts great weight on the word "militia," but this word appears only in the Amendment's subordinate clause... What's more, the "militia" as used in the Amendment, and in clause 16, had a very different meaning 200 years ago than in ordinary conversation today. Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but 200 years ago, any band of paid, semiprofessional, part-time volunteers, like today's Guard, would have been called "a select corps" or "select militia" and viewed in many quarters as little better than a standing army. <162> In 1789, when used without any qualifying adjective, "the militia" referred to all Citizens capable of bearing arms. <163> The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspection the "militia" is identical to "the people" in the core sense described above.

A more plausible bit of text to stress on behalf of a states' rights reading is "well regulated." <167> It might be asked, who, if not state governments, would regulate the militia and organize them into an effective fighting force capable of deterring would-be tyrants in Washington? And does not the right to "regulate" subsume the right to prohibit, as the Supreme Court has explicitly recognized in commerce clause cases such as Champion v. Ames? <168> And if so, how can a provision designed to give state governments broad regulatory power over their Citizens' arms-bearing be incorporated against states to limit that very power?


Professor Amar then goes on to answer these questions regarding the phrase "well-regulated".


It is clear from the context of the actual quote,

"In 1789, when used without any qualifying adjective, "the militia" referred to all Citizens capable of bearing arms"

that the qualifying adjectives Mr Amar was referring to were "state" as in "state militia" , and "select" as in "select militia".

Contrary to Mr Benchley's implications, Mr Amar did not ignore the phrase "well regulated", in fact he goes into a detailed discussion of this term in the very next paragraph after the quote cited by Mr. Benchley.

For a more detailed discussion of the term "militia" from a collective rights point of view see Silviera v. Lockyear US 9th Circuit. This will also give an explanation for why it is so important for the Collective Rights and States Rights arguments to define the term "militia" as meaning the same as "state militia".
The Collective Rights position is that the first part of the Second Amnedment should be read narrowly, which then gives justification for reading the substantive portion norrowly also.

[grantdwilliams]

161. You're missing something.

"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."

Let's take that apart shall we...

We can even assume that "...well-regulated militia..." refers directly to an entity regulated/controlled by the government.

What exactly is a free state? Well, what is an unfree-state? An unfree-state is one where the government is big. Where
the government controls a significant portion, if not all, of the daily lives of the citizens.
How is the security unfree-state insured? Through tight control of the citizens via the military and police.

Thus, in order to protect themselves from the threat of the formulation of an unfree-state via a not well-regulated militia in the hands of tyrannical rulers, and in order to insure the continued existence of a free-state, the people reserved the right to use force if necessary should their first line of defense from tyranny (The rest of the Constitution) be breached.

[iverglas]

163. totally incorrect

"What exactly is a free state? Well, what is an unfree-state?
An unfree-state is one where the government is big. Where
the government controls a significant portion, if not all,
of the daily lives of the citizens."

Sorry. Nonsense, in its historical context. Which is, of course, where we find it.

A free state, in the lingo of the times (which I understand is the lingo that we must speak) and still today (in the proper rather than idiomatic sense you're trying to use), is a state that itself was free -- free from foreign rule. This freedom, after all, is what your founders were hoping and attempting to secure, and was kind of the whole point of that Revolution exercise. To establish a "free state", a state not ruled by a foreign power.

The security of a free state depends on its ability to withstand and rebuff any foreign attempts to rule it -- invasion, occupation, colonization, etc.

A state that is not a free state is a state that is invaded, colonized, or otherwise ruled from outside its borders.

The term, in that sense, has not the slightest thing to do with the "freedom" of individuals within that state. It has to do with the freedom of the state.

Historical uses of the term include things like the "Free State of Saxony" (and other "free States") in Germany. Mark Twain visited the "Congo Free State" -- "a private kingdom owned by Leopold II of Belgium between about 1877 and 908". http://www.wikipedia.org/wiki/Congo_Free_State Believe me, its citizens were not "free". But the state was "free" -- it was not a colony of Belgium. In present-day South Africa, there was the "Orange Free State", recognized as an independent country by Britain in 1854. http://www.wikipedia.org/wiki/Orange_Free_State

In 1827, there was the "Free State of Coahuila and Texas", on this continent. http://www.law.utexas.edu/constitutions/text/image/cah2.html


"How is the security <of an?> unfree-state insured? Through
tight control of the citizens via the military and police."

No, more nonsense. The "security" of an "un-free state" is secured by the outside power that controls it, by securing its control of it against other outside powers. That's all irrelevant to us, of course.

IF the term "free state" in the 2nd amendment meant what you are suggesting it means, you'd have a point. It doesn't.

"Thus, in order to protect themselves from the threat of the
formulation of an unfree-state via a not well-regulated militia
in the hands of tyrannical rulers, and in order to insure the
continued existence of a free-state, the people reserved the right
to use force if necessary should their first line of defense from
tyranny (The rest of the Constitution) be breached."

I'm sure they may indeed have reserved that right, or something like what it would be formulated as if you weren't trying to twist it into knots to fit within the words used in the 2nd amendment; just not in the 2nd amendment.

The 2nd amendment quite plainly has nothing at all to do with all this. It has to do with the fact that, at that time, a (well-regulated) militia was essential if the state itself -- the "people", in the organized political manifestation of that people -- was to be secure against the acts of hostile foreign powers.

But at least now it's clear to me why there's all this yammering about the people rising up against domestic tyranny whenever the 2nd amendment comes up -- something I could never understand.

It comes from people who don't understand the meanings of the words used in the text.

.

[grantdwilliams]

167. That whole national sovereignity thing...

...is a very interesting observation.

But I have one question... If the Founding Fathers weren't fighting for individual liberty, but merely a clone of tyrannical Britian, why'd they bother?



And besides, all of this historical trivia aside, do you support the right of an individual to defend himself or herself from physical violence with the use of deadly force if necessary. If you don't, I don't see how you can support the existence of a military (although I don't know if you do) since it the same situation just on a larger scale.

[hansberrym]

172. Consider the wording of the preamble

(as it is sometimes called) to the Second Amendment, and note the parallels to the preamble of the 1785 militia act of Virginia shown below.

{excerpted from US V. Miller}
The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared:

‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’

It further provided for organization and control of the Militia and directed that ‘All free male persons between the ages of eighteen and fifty years,’ with certain exceptions, ‘shall be inrolled or formed into companies.’ ‘There shall be a private muster of every company once in two months.’ Also that ‘Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good <307 U.S. 174, 182> powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.’
{end of excerpt}



Note the similarities between the 2 preambles.

Preamble to the 1785 Virginia act cited in US v. Miller(above):
‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.

Preamble (for lack of a better word) to Second Amendment:
A well regulated militia, being necessary to the security of a free state,...



The phrase "A well regulated militia" is similar in meaning to the phrase "citizens properly armed and taught the knowledge of military duty". (see Federalist 29 for Hamilton's views of a well regulated militia)

The phrase "the defense and safety of the commonwealth" is similar in meaning to the phrase "security of a free state".

The relationship A "is necessary" to B, is similar to the relationship
that B "depends" on A.



Since it can be shown that individuals at that time had a DUTY to "Keep" arms and to serve in the militia in person, a RIGHT to do the same might be a plausible reading of the amendment. What objection would there be to recognizing a right to keep arms, considering there was at that time a duty to keep arms?


This argument is further supported by the use of the term "bearing arms" during the ratification debates. The 3 citations of the Conscientious Objector provisions made by the Court in Silviera V. Lockyear are shown below.


Madison: “…no person scrupulous of bearing arms, shall be compelled to render military service in person ”.

George Wyethe of the Virginia convention: “…that any person scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

From the Rhode Island convention: (identical to Wyethe)
“…that any person scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

Note that all 3 sources cited by the 9th Circuit use the term “bearing arms” to indicate an individual’s action -as opposed to a collective or state action. And while the 3 specific references above concern military service in person to the state, (as the Collective Rights advocate claim) this does not necessarily preclude a broader meaning (see below). However the clear reference to individual action in the usage of the term "bearings arms", does not favor the collective rights advocates claim that ONLY collective rights are intended. Collective rights advocates claim that the term "bearing arms" most often referred to state action when the Second Amendment was written, therefore no individual right is suggested. But the only known uses of the term "bearing arms" during the ratification debates unambiguously referred to individual action.



Though the duty that the conscientious objector clauses sought to relieve individuals from, was a duty to personally serve in the militia, as the Collective rights advocates claim, there is more to Madison's draft than the Collective rights advocates admit.
The phrase "person scrupulous of bearing arms" might better describe someone who would neither defend himself or the state with arms, rather than a person ONLY with scruples specifically regarding serving in the militia.


And, if "bearing arms" refers to self-defense and defense of the state, as in the Pennsylvania Constitution, then there is no conflict in the usage of that term in the second amendment from an "Individual Rights AND Security of State" argument.

[iverglas]

164. and by the way: "militia"

Does anyone ever consider looking within the US Constitution for assistance in interpreting the 2nd amendment?
http://lcweb2.loc.gov/const/const.html

Article I

Section 8. The Congress shall have power ...

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

...

Article II.

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, ... .

Just curious.

.

[grantdwilliams]

168. Doesn't that obsevation prove my earlier point?

And fit in with the whole balances of powers thing that they were so into (the ability to kill quickly and efficiently balanced between the militia/government and the people)?

[hansberrym]

190. yes,

See Silviera V. Lockyear for the Collective rights point of view,
and see US V. Emerson for individual rights point of view.
See also US v. Miller for the US Supreme Court's definition of the term "militia" .


The State Rights and Collective Rights advocates urge (reasonably enough)that the term "Militia" is the same in the 2nd Amendment as elsewhere in the Constitution. And they urge that "Militia" is equivalent to "state militia". It is this addition of the word "State" in front of "militia" that Professor Amar objects to in the quote which is the topic of this thread. I show the full quote in an earlier response. Please read Mr Amar's actual words and decide for yourself if MrB is making an honest argument.



As to the Silviera argument, I do not find it persuasive because the Court does not explain the problems of grammer that are created by their definition.

If "militia" = "state militia" or maybe even "State militias" when it suits.

1) then Aricle II,sec 2 becomes redundent - ...STATE MILITIAS OF THE SEVERAL STATES... (?)
2) the 2nd mention of "militia" in Article I, sec 8 is also strained since "part" is singular, but by the Collective
rights definition we have more than one "State militia", so we should have more than one "part".
3) The plural/singular usage of militia is problematic if one assumes, as the Collective right do, that we are talking about A single state military force in the Second Amendment, but at other times state military forceS. The Silviera court uses the plural form "militiaS" to avoid the problem, but the plural form is not used in the Constitution.




Also the 9th Circuit court is being very coy about what they mean by "State militia", they seem to imply possession, as in state ownership and control of the militia, but they do not come out and say this. If they did, it would be silly since the National Guard (which the 9th Circuit court claims is the modern militia) is at the service of the Nation -the US Federal Government has ultimate control.

The reference to "the militia of the several states" (in Art II, sec 2) is more likely a referece to the residence of the persons serving. Three examples can readily be cited; one from the Virginia militia act 1785 (see US v. Miller) which refers to “the militia of the counties west of the Blue Ridge”, and another from the federal Militia Act of 1792 which reads “ …each and every free able-bodied white male citizen of the respective states, resident therein, …shall be enrolled…” ; and a third from the New York (Laws 1786, c. 25) cited in Miller “That every able bodied Male person being a citizen of this state, or of any of the United States, and residing in this state, and who are of age…Shall be enrolled…”.


Furthermore, the Silveira court offers no proof that their definition is correct, or that the definition arrived at by the Supreme Court in Miller is wrong, other than to repeat the phrases “state militias”, “state entities”, and “state military forces” over and over. Even to the point of inserting them where they do not appear in the original. On page 45 of the opinion the court cites language nearly identical to (US Const. art 1, sec 8) but inserts "state" before "militias" - note that they also add an 's' to "militia" to make it plural. This is at best sloppy, and at worst an attempt to deceive the reader. The only thing preventing the Court’s statement from being a outright falsehood is that quotes are not used . However the language is so nearly identical to the given citation that it would be hard to notice the difference from the original if one were not directly comparing with the actual wording of this section of the Constitution.

Note that nowhere in the Constitution does the phrase “state militia” appear, yet the Silviera court repeats this phrase ad nauseum. And if “Milita” really means “state military force” why does the court need to refer constantly to a "state militia" ?, wouldn’t that redundantly refer to a STATE STATE MILITARY FORCE ?




A look at some of the postings of Bulldozer will give more background on the legal definition of the term "militia". I do not think it a good argument to say that the laws and regulations that Congress has passed in the last 200 plus years, pursuant to thier authority under the same Articles and section of the Constitution that you have cited, are not relevant to the meaning of the term "militia")

Particularly interesting to look at is the (US) Militia Act of 1792 (first)for what is meant by "arms", who is to supply them, and who is to keep them.