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2nd Amendment
#1
This has been posted on the other forum, but I figure it's worth posting here too.

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A couple friends asked me for my thoughts on gun control, the 2nd Amendment, and things relating to it. So I started writing things down to give them my take on it, and here's what I've got so far. I'd appreciate a heads up on any discrepancies.

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The 2nd Amendment text, as adopted by Congress:

"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."

Before I get too much into the actual text, I want to go over some history regarding the 2nd Amendment.

The US had just won the Revolutionary War in 1783. The government in place was running under the Articles of Confederation, which loosely united the states under a weak central government for fear of falling under the same pitfalls from the government we had just fought to free ourselves from. However, the Articles of Confederation were lacking and the US Constitution was then drafted to create a more robust centralized government, while still maintaining strong state governments.

The US Constitution did more than just create a new government. In creating a more powerful federal government, the US Constitution also limited the powers that it had. It specifically outlined what the federal government was allowed to do in order to prevent it from becoming too large and wind up a tyranny, something that we had just fought to get away from. The powers that weren't given to the federal government were delegated to the states.

Now it should also be noted that the US Constitution also limits some state powers. According to the Supremacy Clause (Article VI, clause 2) of the United States Constitution:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

The Supreme Court stated in Altria Group v. Good, 555 U.S. 70 (2008) that state laws that clearly conflict with federal laws are "without affect". There is more to preemption, but that's the quick version of it.

When the Constitution was being proposed there was a lot of argument and discussion over the meaning behind each clause and amendment. To help explain how the Constitution was meant to work, the Founding Fathers wrote articles to explain their intent in the Federalist Papers, among other publications.

From the Federalist Papers we can take apart the actual text of the 2nd Amendment.

The Federalist Papers 28, 29, and 46 specifically go into the intent behind the 2nd Amendment. In these three articles it was shown that the right to keep and bear arms was not meant for only militia members, but that it is an individual right.

What's interesting in 28 is that it is pointed out that one of the purposes of the 2nd Amendment is, indeed, to allow the citizenry to defend themselves against a tyrannical government in the event that the federal government became too powerful and was now oppressing the people. Keep in mind the historical basis for this. We had just come out of the Revolutionary War, and we were installing a new government. We didn't want to go from one tyranny to another, so we installed a safeguard to allow ourselves to start over again if needed to.

Court cases have also ruled in favor of these assertions. In District of Columbia Et al. v. Heller, the Supreme Court holds in part:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. "

In McDonald v. Chicago, the Supreme Court invalidates Chicago's handgun ban and holds the Second Amendment applies to the states. This further reinforces that state laws cannot preempt the US Constitution, and that banning the practice of carrying firearms is in violation of the 2nd Amendment.

Logic can also be applied to infer that individual rights that have no restrictions to them also extend outside the home, like with the 1st Amendment. There is no clause in the 2nd Amendment stating that the right to self defense only exists in the individual's home or on their own property. It is clear that the right to self defense is an innate and unalienable right, much like freedom of speech or religion. Therefore, the right to self defense extends beyond the home as well.

With the history of the US, the Federalist Papers, and court cases, we can see the following statements to be true:
-The 2nd Amendment is an individual right.
-The 2nd Amendment protects the right to own and carry firearms.
-The right to own and carry firearms is for self defense against others and the government.
-State laws cannot preempt this right.

http://avalon.law.yale.edu/18th_century/fed28.asp
http://avalon.law.yale.edu/18th_century/fed29.asp
http://avalon.law.yale.edu/18th_century/fed46.asp

[Image: 21122657_10155704889299275_8952212329936901321_o_2.jpg]
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#2
Excellent post!
das, proud to be a member of pa2a.org since Sep 2012.
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#3
This is going to be a slight tangent relating to the 2nd Amendment.

It's well established from The Federalist Papers, No. 28, written by Alexander Hamilton, that the 2nd Amendment is meant to protect the individual right to bear arms. It also states that this right is meant to be used to protect oneself, the state, and against the state if it becomes tyrannical. He did conclude that this would be an unlikely event, but citizens should have the right to defend against a government that is encroaching on and suppressing the rights of the people. It was meant to be extremely clear that the 2nd Amendment protected the right to fight back and defend oneself against others and the government when all else failed.

Nowhere in the 2nd Amendment, or anywhere else in the US Constitution, does it mention anything about which type of firearms or weapons are permitted and barred from being used. Nowhere does it say anything about muskets or flintlocks or rifles or pistols. It wasn't until later, much later, that legislation was passed to limit what the people were allowed and not allowed to have. Why? Because politicians feared the people, and felt that they couldn't trust the people with something like firearms.

There are also arguments that the 2nd Amendment didn't intend for people to have the same firearms that the military and police have. I would like to point out that when the US Constitution was written, that muskets and muzzle loading rifles were the AK-47 of the era. The military weapon of choice was the muzzle loading smooth-bore rifle, something that was available for all.

Hamilton already asserts that the purpose of the 2nd Amendment is to protect the individual right to bear arms, as well as the right to form militias in defense against a tyrannical government. This intent is backed in Federalist No. 29 and 46 as well.

It would then make sense that we, the people, were indeed intended to have the same basic arms as the military. Furthermore, the intense regulation and legislation of firearms was never something that the Founding Fathers intended, especially when it's done under the pretense of "the greater good".

It is noted that it is extremely unlikely that we will ever have to rebel against the government and start another civil war against an oppressive government, but the ability to do so should always be there. That's the entire point of the 1st and 2nd Amendment. To speak our voices and have them be heard, to gather and share our thoughts and ideas, and to defend and fight back when none of them are heard and we're still being oppressed.

[Image: 21122657_10155704889299275_8952212329936901321_o_2.jpg]
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