2nd Amendment is Violated

[redy2fiyt]

Originally Posted by Sandman

My apologies if I offended you with my previous response. Allow me to address, specifically, your initial post.

None taken. Your new response is better researched and much appreciated!

Let's keep digging.

[redy2fiyt]

Here's a good start for us. There is a TON of reading. I've tried to narrow it down a bit though. The Senate Report it fascinating and full of case law.

[Codee]

Ready2Fight...

Let me ask you a few questions to help get down to the issues when I pose questions to myself...

1) Does the phrase "A well regulated militia, being necessary to the security of a free state" have legal force and influence over the right described in the remainder of the article 2 clause?

2) If question 1 is answered in the affirmative then what significance does the word "regulated", mean in article two and where does this meaning derive from?

3) If question 1 is answered in the affirmative then does the 2nd amendment ever talk about it "being necessary to self defense?"

4) If question 3 is answered in the affirmative then why is the protection of the "STATE" explicitly mentioned while the protection of hte individual is left to the reader to inffer?

5) If question 3 is answered in the negetive then please elaborate on how it is necessary to the "PROTECTION OF THE STATE" for you to carry a loaded firearm in public.

Further... Can you explain how the security of the state could be threatened so quickly and thouroughly that having you on the street with a loaded pistol AT THAT TIME would change anything? In many scenarios in my head I have the time to put a bullet in my gun... such as a radio broadcast telling me of invaders. Even political subterfuge is a slow process not requiring constant live guns in pockets to quell. Do you really need a "loaded" gun on yuo at all times to protect the STATE?

Cody

[NarrowPathPilgrim]

Okay,
I would like to contribute to this research project. Here are some links legal documents regarding the Second Amendment:

http://www.justice.gov/olc/secondamendment2.pdf - Take a look, this brief is great! Over a hundred pages arguing in support of the second amendment right for Individuals! And whats more, its from the AG! Amazing!

http://www.arkansasmilitia.com/thesi...lverbullet.pdf
http://www.arkansasmilitia.com/thesilverbullet.doc - Here is a brief regarding the illegality of the National Firearms Act of 1934. This brief is nearly two hundred pages long!

http://www.arkansasmilitia.com/docum..._documents.htm - This page has links to several more documents!

If you write your own brief I would highly recommend using the ninth amendment, and the doctrine of Original Intent. Those are two very solid arguments which protect your right to bear arms irregardless of how the court interprets the second amendment.

But even the best arguments will fail if the judge decides to rule unlawfully. So do your best, pray, and leave the rest to God! If you are found guilty there is only one alternative to jail... to invoke your second amendment right with the means provided in the second amendment! After all, that is the ONLY reason we have the second amendment at all, think about that. Unfortunately, most Americans want the right keep and bear arms, but they shrink back when duty demands that they use their arms. May God give us wisdom when that day arrives.

I hope this helps in your research!

Sincerely,
Zach Doty
www.FightingForLiberty.org

PS. Ready2Fight, I love your username!

[ThomPaine]

Codee,

I am thinking that maybe we should break down the verbiage of the ammendment in the context of the BoR.

"A free people derive their rights from the laws of nature, and not as a gift from their chief magistrate." -Thomas Jefferson (1774)

From where do our rights come? Does the Constitution grant them? Do we obtain them from Government? The ideas of the founding fathers of the U.S. in establishing this nation must be taken into account. Their ideas on government and individual liberty are clearly revealed in the Declaration Of Independence.

"We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;"

It is noted that the aforementioned rights (inclusio unius, exclusio alterius?) are endowed to men BY THEIR CREATOR.

ENDOW - To enrich or furnish with any gift, quality or faculity; to indue. Example: Man is endowed by his maker with reason. [Websters 1828] (this is questionable in today's society. -Ed)

The idea that human rights are the gift of from god or nature and do not come from government, separates us from many other nations who hold that these rights are granted by government.

UNALIENABLE - Not alienable; that cannot be alienated; that may not be transferred; unalienable rights. [Websters 1828]

The Constitution neither allows nor disallows any rights, nor claims the authority to grant human rights.

Our Constitution does a number of things, among them it creates and defines our government, it grants certain powers to that government, and it severely restricts our government to those powers eneumerated within it and furthermore reserves all other powers not specificaly granted to the Federal government to the States or the People.

If the Constitution does not grant or endow rights, why was a Bill of Rights written into it?

PREAMBLE TO THE BILL OF RIGHTS

Begun and held at the city of New York, on Wednesday, the 4th day of March, 1789.

The conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution: [emphasis mine]

And furthermore:

"The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."
West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).

"[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."
- Thomas Jefferson (1787)

Those who founded this country, and established our Republican form of government wanted there to be no misunderstanding about certain issues, so they enumerated some of our rights but DID NOT GRANT, CREATE, ALLOW, ENDOW, etc., any human right. The fact is, one could do away with the entire bill of rights and not destroy any of our rights, because the bill of rights does not grant rights it only prevents the government from infringing upon our rights as stated in the preamble to the bill of rights "TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS ."

"The deterioration of every government begins with the decay of the principles on which it was founded."
- C.L. De Montesquieu - The Spirit of the Laws, VII

Amendment Nine

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other rights retained by the people.

3) that, TO SECURE THESE RIGHTS, governments are instituted among men!

SECURE - 1] To guard effectually from danger; to make safe. Fortifications may secure a city; ships of war may secure a harbor. 2] To make certain; to put beyond hazard. Liberty and fixed laws secure to every citizen due protection of person and property. The first duty and the highest interest of men is to secure the favor of God by repentence and faith, and thus to secure to themselves future felicity. [Websters 1828]

The purpose of governments (note the plural) being instituted is TO SECURE HUMAN RIGHTS - NOT GRANT RIGHTS.

[some of that is mine and some of that is pasted, so flame away...]

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.

Regulate: to govern or direct according to rule, or to bring under control of constituted authority, to limit or prohibit, to arrange in proper order and to control that which already exists (Black's 6th)

Militia: The body of citizens in a state, enrolled for discipline as a military force, but not engaged in actual service, except in times of emergency. Distinguished from regular troops or a standing army. (Black's 6th)

Black's has quite a lengthy explanation on the word necessary and basically says that several meanings can be imparted and that it must be read in context. Several examples are given: Absolute physical necessity or inevitability, that which is convenient, useful, appropriate or proper to the end being sought.

State is capitalised in the BoR, so we can 'assume' that it is referring to an official state of some sort, which seems kind of strange, thinking about Codee's post from earlier with several questions at the end.

The end seems simple enough saying that THE RIGHT (doesnt specify what type of right), as if it already exists from some other source before this document, shall not be infringed. Shall not be infringed is pretty straightforward to me, but people and right are not defined in any way, so we must look elsewhere for that. The purpose of keeping and bearing arms, the security of the State or keeping a well regulated Militia, does not seem to be tied directly to the right to bear arms. It doesnt say if you are not securing a state or are not part of a Militia then you cant keep or bear arms or that the only reasons to keep and bear arms are XYZ.

Just some food for thought..

[Codee]

Here is quicker break down...

The term "no one shall be deprived..." is used numerously in the constitution and the bill of rights.

The second amendment does not use that phrase. It does not say "no one shall be deprived of the right to bear arms." It says the "the right of the people."

[redy2fiyt]

Originally Posted by Codee

Ready2Fight...

Let me ask you a few questions to help get down to the issues when I pose questions to myself...

1) Does the phrase "A well regulated militia, being necessary to the security of a free state" have legal force and influence over the right described in the remainder of the article 2 clause?

Hmmm. Good point. It seems that it would. What do you mean by "article 2 clause"?

2) If question 1 is answered in the affirmative then what significance does the word "regulated", mean in article two and where does this meaning derive from?

Regulate: to govern or direct according to rule, or to bring under control of constituted authority, to limit or prohibit, to arrange in proper order and to control that which already exists (Black's 6th)

3) If question 1 is answered in the affirmative then does the 2nd amendment ever talk about it "being necessary to self defense?"

It does not.

4) If question 3 is answered in the affirmative then why is the protection of the "STATE" explicitly mentioned while the protection of hte individual is left to the reader to inffer?

Gotcha.


5) If question 3 is answered in the negetive then please elaborate on how it is necessary to the "PROTECTION OF THE STATE" for you to carry a loaded firearm in public.


I guess it depends on the meaning of state as used in the constitution.

From Bouvier's Law Dictionary:

STATE, government. This word is used in various senses. In its most enlarged sense, it signifies a self-sufficient body of persons united together in one community for the defence of their rights, and to do right and justice to foreigners. In this sense, the state means the whole people united into one body politic; (q. v.) and the state, and the people of the state, are equivalent expressions. 1 Pet. Cond. Rep. 37 to 39; 3 Dall. 93; 2 Dall. 425; 2 Wilson's Lect. 120; Dane's Appx. §50, p. 63 1 Story, Const. §361. In a more limited sense, the word `state' expresses merely the positive or actual organization of the legislative, or judicial powers; thus the actual government of the state is designated by the name of the state; hence the expression, the state has passed such a law, or prohibited such an act. State also means the section of territory occupied by a state, as the state of Pennsylvania.

2. By the word state is also meant, more particularly, one of the commonwealths which form the United States of America. The constitution of the United States makes the following provisions in relation to the states.

So, if the meaning of state is "In its most enlarged sense, it signifies a self-sufficient body of persons united together in one community for the defence of their rights, and to do right and justice to foreigners. " It could be inferred then, that we need loaded firearms to defend our rights.

Further... Can you explain how the security of the state could be threatened so quickly and thouroughly that having you on the street with a loaded pistol AT THAT TIME would change anything? In many scenarios in my head I have the time to put a bullet in my gun... such as a radio broadcast telling me of invaders. Even political subterfuge is a slow process not requiring constant live guns in pockets to quell. Do you really need a "loaded" gun on yuo at all times to protect the STATE?

Well, if we take the definition from Bouvier's above, a number of scenarios could easily be derived. I'm thinking it the state's rights could be threatened any time police force attempts to arrest without warrant, property is threatened with taking, etc.

However, looking at it from the other perspective, justifying having a LOADED gun for these scenarios would be difficult.

Cody

I think we are on the right track here. What's next Cody?

[redy2fiyt]

Here is some good caselaw that is not biased one way or the other. Its from UCLA Law:

http://www.law.ucla.edu/volokh/2amte...rces.htm#TOC10

I read most of the case law. Its a good start.

[gurion]

I had some questions:

I understand that you would be under the officer's jurisdiction if you had consented to a weapons search. Should you consent for the sake of your own physical safety and contest the issue in a UCC court?

Isn't the act of answering a summons a recognition of court authority?

Assuming that you're discovered in the act of transporting a weapon, how do you prove the weapon belongs to you without placing the weapon or yourself under UCC jurisdiction?

[redy2fiyt]

Originally Posted by gurion

I had some questions:

I understand that you would be under the officer's jurisdiction if you had consented to a weapons search. Should you consent for the sake of your own physical safety and contest the issue in a UCC court?

Personally, I would tell the cop to come back with a warrant, in hand, signed by a judge with proper jurisdiction. He'd probably end up tackling me, but I personally don't give a sh$t.

Originally Posted by gurion

Isn't the act of answering a summons a recognition of court authority?

Yes. You are thereby accepting their presentment and agreeing to come to court. If you wish, you can R4C the presentment within 72 hours. Personal experience and typical reprocussions = unknown. I accepted the last presentment for the sake of gaining some experience in court.

Originally Posted by gurion

Assuming that you're discovered in the act of transporting a weapon, how do you prove the weapon belongs to you without placing the weapon or yourself under UCC jurisdiction?

Can't help ya here. I'd show them my permit for the weapon. Other than that, you can bet your a$$ you are goin' to jail. That's a really tough one to fight on the spot during a traffic stop.