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Argument FOR the Second Amendment?

Posted by on Jan. 25, 2013 at 11:41 AM
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by on Jan. 25, 2013 at 11:41 AM
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blues_pagan
by on Jan. 25, 2013 at 11:53 AM

Anecdotal evidence.  She is simply telling her story does not give irrefutable evidence to what the 2nd Amendment is for.

I much prefer this arguement

The Second Amendment of the United States Constitution reads: "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." Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Hellerchallenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purchase. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purchases as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

Thus, the Supreme Court has revitalized the Second Amendment.  The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521).  The plaintiff inMcDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens.  In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine.  However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.  While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

 

However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.  

http://www.law.cornell.edu/wex/second_amendment

jcrew6
by Jenney on Jan. 25, 2013 at 12:08 PM

The second amendment protects citizens against tyranny and ensures the rights of our citizens to safeguard their own lives and property. 

DC vs Heller: the Second Amendment to the Constitution protects an individual's right to possess a firearm.

For lawful purposes, such as self-defense within ones property. Yet, criminals still illegally use firearms for unlawful purposes.  Criminals don't care about the laws.  

Quoting blues_pagan:

Anecdotal evidence.  She is simply telling her story does not give irrefutable evidence to what the 2nd Amendment is for.

I much prefer this arguement

The Second Amendment of the United States Constitution reads: "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." Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Hellerchallenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purchase. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purchases as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.


Thus, the Supreme Court has revitalized the Second Amendment.  The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521).  The plaintiff inMcDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens.  In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine.  However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.  While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.



However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.  

http://www.law.cornell.edu/wex/second_amendment



MsDenuninani
by Bronze Member on Jan. 25, 2013 at 12:14 PM

 I recently read a great article about how the Black Panthers urged their members to purchase guns for this exact same purpose, on the theory that the cops and government could not be trusted, and an armed milita was needed to keep their communties safe.  In response, the NRA helped Ronald Reagan (at that time CA governor) draft gun control legislation.

Anyhoo -- personally, I don't think the second amendment can protect citizens against tyranny.  Not when the tyrants have nuclear arms at their disposal. 

 

Quoting jcrew6:

The second amendment protects citizens against tyranny and ensures the rights of our citizens to safeguard their own lives and property. 

DC vs Heller: the Second Amendment to the Constitution protects an individual's right to possess a firearm.

For lawful purposes, such as self-defense within ones property. Yet, criminals still illegally use firearms for unlawful purposes.  Criminals don't care about the laws.  

 

 

blues_pagan
by on Jan. 25, 2013 at 12:16 PM

SMH, good job on not even touching on what was written for Cornell Law.  

If you notice there are two arguements on the meaning of the 2nd Amendment.  

If it is a Constitutional right for individuals to possess a firearm then why is it that weapons bans in areas still stand without interference from the Supreme Court?  And the question also stands, was the true intent for individuals or is it a collective right (regarding the well regulated militia)?  

Quoting jcrew6:

The second amendment protects citizens against tyranny and ensures the rights of our citizens to safeguard their own lives and property. 

DC vs Heller: the Second Amendment to the Constitution protects an individual's right to possess a firearm.

For lawful purposes, such as self-defense within ones property. Yet, criminals still illegally use firearms for unlawful purposes.  Criminals don't care about the laws.  

Quoting blues_pagan:

Anecdotal evidence.  She is simply telling her story does not give irrefutable evidence to what the 2nd Amendment is for.

I much prefer this arguement

The Second Amendment of the United States Constitution reads: "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." Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Hellerchallenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purchase. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purchases as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.


Thus, the Supreme Court has revitalized the Second Amendment.  The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521).  The plaintiff inMcDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens.  In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine.  However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.  While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.



However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.  

http://www.law.cornell.edu/wex/second_amendment




blues_pagan
by on Jan. 25, 2013 at 12:19 PM

ahhh the 1967 Mulford Act :)  

Once again, the question has to be asked, did the Founding Fathers want individual citizens armed for any reason they deem necessary or did they intend for citizens to be granted the right to bear arms in order to keep a well regulated militia?

And I don't think the US gov. would nuke the country...that's just me though lol

Quoting MsDenuninani:

 I recently read a great article about how the Black Panthers urged their members to purchase guns for this exact same purpose, on the theory that the cops and government could not be trusted, and an armed milita was needed to keep their communties safe.  In response, the NRA helped Ronald Reagan (at that time CA governor) draft gun control legislation.

Anyhoo -- personally, I don't think the second amendment can protect citizens against tyranny.  Not when the tyrants have nuclear arms at their disposal. 


Quoting jcrew6:

The second amendment protects citizens against tyranny and ensures the rights of our citizens to safeguard their own lives and property. 

DC vs Heller: the Second Amendment to the Constitution protects an individual's right to possess a firearm.

For lawful purposes, such as self-defense within ones property. Yet, criminals still illegally use firearms for unlawful purposes.  Criminals don't care about the laws.  

 



tnmomofive
by Silver Member on Jan. 25, 2013 at 12:23 PM
1 mom liked this

lol Who could not see this coming? Look at all of the sqwaking pushing for the ban of individual Americans being able to own a firearm.You will pry it from my cold dead hands.I will have one to defend my family if some wackjob decides to bust into my home.Like the woman in TX who hid in her attic with her children recently.I will not find myself in a situation like that and unable to save my children..NO WAY.Nobody is going to tell me that I do not have the right to defend my children by WHATEVER means ness!

MsDenuninani
by Bronze Member on Jan. 25, 2013 at 12:30 PM

Fair point. :-)

Quoting blues_pagan:

ahhh the 1967 Mulford Act :)  

Once again, the question has to be asked, did the Founding Fathers want individual citizens armed for any reason they deem necessary or did they intend for citizens to be granted the right to bear arms in order to keep a well regulated militia?

And I don't think the US gov. would nuke the country...that's just me though lol

Quoting MsDenuninani:

 I recently read a great article about how the Black Panthers urged their members to purchase guns for this exact same purpose, on the theory that the cops and government could not be trusted, and an armed milita was needed to keep their communties safe.  In response, the NRA helped Ronald Reagan (at that time CA governor) draft gun control legislation.

Anyhoo -- personally, I don't think the second amendment can protect citizens against tyranny.  Not when the tyrants have nuclear arms at their disposal. 

 

Quoting jcrew6:

The second amendment protects citizens against tyranny and ensures the rights of our citizens to safeguard their own lives and property. 

DC vs Heller: the Second Amendment to the Constitution protects an individual's right to possess a firearm.

For lawful purposes, such as self-defense within ones property. Yet, criminals still illegally use firearms for unlawful purposes.  Criminals don't care about the laws.  

 

 



 

blues_pagan
by on Jan. 25, 2013 at 12:30 PM

I also have firearms in my home.  5 to be exact.  

With that said, no one is going to come to take your guns away.  This is like saying the drunk driving laws only affect law abiding drivers since criminals will still drive drunk.  It is an assinine arguement.  We have had over 1000 gun deaths after the Newtown massacre.  

Simply standing by and fighting even the conversation of what can be done to curb gun violence in the US is irresponsible.

Quoting tnmomofive:

lol Who could not see this coming? Look at all of the sqwaking pushing for the ban of individual Americans being able to own a firearm.You will pry it from my cold dead hands.I will have one to defend my family if some wackjob decides to bust into my home.Like the woman in TX who hid in her attic with her children recently.I will not find myself in a situation like that and unable to save my children..NO WAY.Nobody is going to tell me that I do not have the right to defend my children by WHATEVER means ness!


tnmomofive
by Silver Member on Jan. 25, 2013 at 12:34 PM
2 moms liked this

Nobody here is saying do nothing but alot of the ladies of this forum would love for an all out ban and unfortunately so would some of the jackasses in D.C. ..they want a ban except for themselves of course.

29again
by Gold Member on Jan. 25, 2013 at 3:03 PM

I don't have any great and insightful quotes to use, but....  when you consider how the DoI and the COTUS are all about individual rights and individual liberty, I am going to go with the individual right theory.  I think that you also have to consider what the FF were trying to avoid, a government that is armed against a citizenry that is NOT armed, and that leads to the individual being armed.

I don't think the government will nuke the country, either.  And the fact that the govt does have nukes is not enough to make me just give up my weapons since I have nothing THAT powerful!

Quoting blues_pagan:

ahhh the 1967 Mulford Act :)  

Once again, the question has to be asked, did the Founding Fathers want individual citizens armed for any reason they deem necessary or did they intend for citizens to be granted the right to bear arms in order to keep a well regulated militia?

And I don't think the US gov. would nuke the country...that's just me though lol

Quoting MsDenuninani:

 I recently read a great article about how the Black Panthers urged their members to purchase guns for this exact same purpose, on the theory that the cops and government could not be trusted, and an armed milita was needed to keep their communties safe.  In response, the NRA helped Ronald Reagan (at that time CA governor) draft gun control legislation.

Anyhoo -- personally, I don't think the second amendment can protect citizens against tyranny.  Not when the tyrants have nuclear arms at their disposal. 


Quoting jcrew6:

The second amendment protects citizens against tyranny and ensures the rights of our citizens to safeguard their own lives and property. 

DC vs Heller: the Second Amendment to the Constitution protects an individual's right to possess a firearm.

For lawful purposes, such as self-defense within ones property. Yet, criminals still illegally use firearms for unlawful purposes.  Criminals don't care about the laws.  

 




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