Thursday, November 14, 2013
“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.” –2nd Amendment
Recent mass shooting tragedies have renewed the national debate over the 2nd Amendment. Gun ownership and homicide rates are higher in the U.S. than in any other developed nation, but gun violence has decreased over the last two decades even as gun ownership may be increasing. Over 200 years have passed since James Madison introduced the Bill of Rights, the country has changed, and so have its guns. Is the right to bear arms now at odds with the common good, or is it as necessary today as it was in 1789?
Professor of Law, Harvard Law School
Professor of Law and of Government, University of Texas
Research Director, Independence Institute & Associate Policy Analyst, Cato Institute
Professor of Law, UCLA School of Law
Author & Correspondent for ABC News
Professor of Law, Harvard Law School
Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.” He is a graduate of Brooklyn College and Yale Law School and joined the Harvard Law Faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg. He has published more than 1,000 articles in magazines, newspapers, journals and blogs such as The New York Times Magazine, The Washington Post, The Wall Street Journal, The Harvard Law Review, the Yale Law Journal and Huffington Post. Dershowitz is the author of numerous bestselling books, and his autobiography, Taking the Stand: My Life in the Law, was recently published by Crown.
Professor of Law and of Government, University of Texas
Sanford Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr., Centennial Chair in Law, joined the University of Texas Law School in 1980. Previously a member of the Department of Politics at Princeton University, he is also a Professor in the Department of Government at the University of Texas. The author of over 350 articles and book reviews in professional and popular journals--and a regular contributor to the popular blog Balkinization--Levinson is also the author of four books, most recently, Framed: America's 51 Constitutions and the Crisis of Governance (2012). He has edited or co-edited numerous books, including a leading constitutional law casebook Processes of Constitutional Decisionmaking (5th ed. 2006). He received the Lifetime Achievement Award from the Law and Courts Section of the American Political Science Association in 2010.
Research Director, Independence Institute & Associate Policy Analyst, Cato Institute
David B. Kopel is the research director of the Independence Institute, in Denver, and is an associate policy analyst with the Cato Institute, in Washington, D.C. He is also an adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law. In 1999 he served as an adjunct professor of law at New York University. He is the author of 16 books and 85 scholarly articles, on topics such as antitrust, constitutional law, counter-terrorism, environmental law, intellectual history, and police practices. His most recent book is Firearms Law and the Second Amendment (2012), the first law school textbook on the subject. Kopel was a member of the Supreme Court oral argument team in District of Columbia v. Heller (2008). His Heller and McDonald amicus briefs for a coalition of law enforcement organizations were cited by Justices Alito, Breyer, and Stevens. The federal Seventh Circuit Court of Appeals has lauded his scholarship as showing the proper model of the “originalist interpretive method as applied to the Second Amendment.” He is currently representing 55 Colorado Sheriffs in a federal civil rights lawsuit against anti-gun bills passed by the legislature in March 2013.
Professor of Law, UCLA School of Law
Eugene Volokh teaches First Amendment law and tort law at UCLA School of Law, where he has also taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Supreme Court Justice Sandra Day O'Connor and for Ninth Circuit Judge Alex Kozinski. Volokh is the author of two textbooks and over 70 law review articles; four of his articles on the Second Amendment have been cited by Supreme Court opinions, as well as by over two dozen opinions from other courts. Volokh is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, the founder and coauthor of the blog The Volokh Conspiracy, and an Academic Affiliate for the Mayer Brown LLP law firm.
71% voted the same way in BOTH pre- and post-debate votes (58% voted FOR twice, 12% voted AGAINST twice, 1% voted UNDECIDED twice). 29% changed their minds (4% voted FOR then changed to AGAINST, 2% voted FOR then changed to UNDECIDED, 5% voted AGAINST then changed to FOR, 1% voted AGAINST then changed to UNDECIDED, 11% voted UNDECIDED then changed to FOR, 6% voted UNDECIDED then changed to AGAINST). Breakdown Graphic
As long as there are governing officials that can abuse the power they are given the 2nd Amendment will be necessary. The 2nd Amendment was not put there for sport or self defense only, Our founding fathers knew that tyranny is only a step away from an unarmed populous. They understood that all to well. I pray that we never have to face what they did, but there is that possibility if we go quietly into the minority view of firearms.
Keep the right to bear arms, Take away that right and we become a nation unable to defend ourselves from enemies both foreign and domestic!
Our 2nd amendment is there for a very good reason. Its to ensure that our government is for the people and by the people. Its to ensure that if our government becomes corrupt to the point that if it is oppressing the very people that empowered it, that the people would have a chance to resist and be able to enact a change.
Our founders knew this and lived this. And here we are today - with a government rife in corruption, seeking to oppress us in so many ways, and now trying to take away as many gun rights as they can.
i am against the motion would like to vote against this but the website appears to not give any options to vote... Well then.. It is a right just as any of the other amendments!! how is this a question!!
Giving up our right to carry weapons is the last step needed to silence us, next is probably going to be freedom of speech. We cannot give up our rights as Americans, so many have died to ensure we are a free nation. This is a sign of oppression, a sign that we are trying to be enslaved by power hungry mongers that want to run the nation by their own agenda. I know this has been said many of times by patriots and by those who see the government as a vile beast that only wishes to rule us, but damn it we must do more than just talk about this over the internet, we have to take action against this tyranny. What would our children or grand children say to us when they found out we only stood by as our rights as gun owners and Americans were taken away? What about the men and women of the United States Military who bravely fought to ensure we were a free nation at all costs? I'm sorry but if this keeps going on any longer I will take physical action, I will not have my son grow up under a tyrants rule. NSA and DHS can kick down my door but they know as much as I do that I am right. I didn't become a Marine to fight for such a bullshit cause. God help us all.
The Second Amendment states our rights to bear arms shall not be infringed
Why is the default argument against the Second Amendment always "the founding fathers could not have foreseen the kind of weapons we have now"? The Second Amendment is not about allowing people access to destructive devices for any particular usage, it was a strategic decision that recognized that a free society must be permitted to be armed. In the same manner, they recognized that a free society must be able to speak, read, and worship. They must be protected from those who could deny those rights. The government was also constitutionally designed to make it impossible for any one person or agency to amass too much power over the people. Those too, were strategic rights and measures they afforded American society which were designed to stand the test of time. How could we count on the army or police to protect the citizens from the tyrannical government which controls it [the army]? Incidentally, a standing army was never the intention or design of the constitution.
Outlaw guns, and only outlaws will have guns.
Given that the main threat to liberty is not found on foreign shores, but here in the power centers of government, the right to bear arms is the last, and perhaps the only, defense of freedoms.
It's ironic that in the fight against "terrorism", an ideology inherently jealous and angry at freedom, we suspend or eradicate freedoms in the name of stopping terrorism.
America will not become safer in the absence of personal weapons in the hands of the citizenry, quite the opposite.
There are only two things which will bring America into its next revolution-a gun grab, or forced microchips. Rampant laziness and complacency is only a temporary state. A government that fails to realize this is simply out of touch with reality.
Shall Not be infringed
There is no way the founding fathers meant the constitution to be short term and out live it's usefulness. Give up one part of the constitution and the rest of it goes as well. The right to bear arms ensures the rest of the constitution. Give up that right and trash the foundation this country was founded upon.
Second Amendment provides for an armed electorate to "well regulate" the government militia. Without this check and balance we have an armed police state and we throw wide the doors to tyranny.
Hamilton, Madison, Jefferson understood this, and they may be deceased but their ideas/principles are as viable as ever.
A close look at most studies suggests that culture has more to do with gun crime and other ill use of firearms than availability would suggest alone. I note also that Article 2A in the New hampshire Constitution which is some what less ambiguous and more liberal in the way it proclaims the right to keep arms is only some 31 years old. Not much has changed since the voters (including me) approved that amendment.
Typical liberal, still believing that the Bill of Rights is a list of priveledges given to us by the Government, as opposed to it's real purpose: To limit the power of the federal government, and frame God-given birthrights of all free men. You have no "right to feel safe." You do however, have a responsibility to be your own first line of defense from a person meaning to do you harm. You cannot legislate the prevention of crime. Criminals don't obey laws anyway. What we need to do is fix out penal and legal systems. Stop trying to force your will on other people. If I want to own a gun, I have that right. If you don't want to own a gun, that too is your right, but keep your nose out of my life.
This is a joke, the fact that this site even entertains such nonsense shows how incompetent they are.
Keep this up and this site will be just like CNN....
This should be interesting since both Dershowitz and Levinson have spoken strongly in support of the Second Amendment. The comments of another liberal law professor, formerly at Duke, from a seminal paper in the Duke Law Review (William Van Alstyne) is also below.
“Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard, don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.”
William Van Alstyne
The Second Amendment and the Personal Right to Arms
Duke Law Review, 1994
..."Neither is one's right to keep and bear arms absolute. It may fairly be questionable, for example, whether the type of arms one may have a "right to keep" consistent with the Second Amendment extend to a howitzer. It may likewise be questionable whether the "arms" one does have a "right to keep" are necessarily arms one also may presume to "bear" wherever one wants, e.g., in courtrooms or in public schools. To be sure, each kind of example one might give will raise its own kind of question. And serious people are quite willing to confront serious problems in regulating "the right to keep and bear arms," as they are equally willing to confront serious problems in regulating "the freedom of speech and of the press."
The difference between these serious people and others, however, was a large difference in the very beginning of this country and it remains as a large difference in the end. The difference is that such serious people begin with a constitutional understanding that declines to trivialize the Second Amendment or the Fourteenth Amendment, just as they likewise decline to trivialize any other right expressly identified elsewhere in the Bill of Rights. It is difficult to see why they are less than entirely right in this unremarkable view. That it has taken the NRA to speak for them, with respect to the Second Amendment, moreover, is merely interesting(p.1255)--perhaps far more as a comment on others, however, than on the NRA.
For the point to be made with respect to Congress and the Second Amendment is that the essential claim (certainly not every claim--but the essential claim) advanced by the NRA with respect to the Second Amendment is extremely strong. Indeed, one may fairly declare, it is at least as well anchored in the Constitution in its own way as were the essential claims with respect to the First Amendment's protection of freedom of speech as first advanced on the Supreme Court by Holmes and Brandeis, seventy years ago. And until the Supreme Court manages to express the central premise of the Second Amendment more fully and far more appropriately than it has done thus far, the constructive role of the NRA today, like the role of the ACLU in the 1920s with respect to the First Amendment (as it then was), ought itself not lightly to be dismissed. Indeed, it is largely by the "unreasonable" persistence of just such organizations in this country that the Bill of Rights has endured."
Regardless of weapons tech between the time the 2nd amendment was written and today, it stills applies, as that same tech is available to the governments of the world which is the point of the 2nd amendment and I will never surrender my right to bear arms for defense or the defense of others I choose to defend. No one has the right to choose for me how I choose to defend myself.
I don't see a valid reason to curtail the right to bear arms. No matter how you try to tighten restrictions or ban guns altogether, the criminals will get them. I asked the county sheriff, who has jurisdiction in my area, what the average response time would be for someone to get to my house if I had an armed intruder. Depending on where they are when the call came and how many were on duty, it could be five minutes or up to thirty minutes. That's too long to wait in a dangerous situation!
An original interpretation of the 2nd Amendment of the U. S. Constitution, considering relevant clauses in State Constitutions
by Nick Sheedy
Article I of the U.S. Constitution grants certain prescriptive powers to Congress:
"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."
It is important to differentiate between PRESCRIPTIVE powers and PROSCRIPTIVE powers. A Prescriptive power is one whereby the government has the authority to require certain things. A Proscriptive is power in one whereby the government has the authority to prohibit certain things.
These powers to regulate the militia (the only section in our Constitution that might delegate to Congress any power to regulate arms—weapons, guns, etc.) are PRESCRIPTIVE powers (the word "prescribed" is very clear in the Constitution itself, leaving no room for argument.) Congress is not vested with any Proscriptive powers in this regard. In other words, Congress has the power to require people (the militia) to own a gun, how often to train, and even stipulate what caliber a gun must be, but Congress has never been granted the power to prohibit members of the militia from keeping or bearing arms, or certain guns, nor prohibit members of the militia from training, etc.
What does the Second Amendment mean? Read the words:
"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."
There are several clauses in there that make it a bit muddles if you're not familiar with 18th century legalese; let's clarify these clauses by stating them separately rather than in one long sentence:
Whereas a well-regulated militia is necessary for the security of a free state, therefore, the right of the People to keep and bear arms shall not be infringed.
What is a "well-regulated" militia? "Regulated" does not mean "controlled" in this case. It means well-organized, well-equipped, well-trained and well-disciplined (as the State Constitutions make clear below). Congress has the authority to PRESCRIBE the equipment and training that the militia needs to have, and each State reserved the authority to oversee training and administer other prescriptions Congress set forth.
Furthermore, the 2nd Amendment states that the well equipment, well training and well disciplined Militia is necessary for the security of a FREE STATE. Some other countries might be able to secure a non-free state in another manner (say with a professional army and a police force that is armed at the expense of an unarmed citizenry; these are called police states, etc.), but the militia model outlined by the U.S. Constitution is how security is achieved in a FREE STATE. And because this is so important, the Second Amendment prohibits any infringement (by anyone—including Federal, State and local governments) of the right of the People to keep (own, hold, posses) and bare (carry, travel with and use) arms (weapons, guns, etc.).
Who are "The People"? In reality: you me, your next door neighbor and every other individual citizen in the United States. The phrase "The People" is used in the Preamble as well as the First Second, Fourth, Ninth and Tenth Amendments to the Constitution. It includes all individuals, but is not a collective unit. The Ninth and Tenth Amendments clearly show that "the People" does not mean the State, as they are listed quite distinctly. "The People" includes all individuals (in some cases all citizens) that make up the general public. No person may be deprived of Liberty, except by Due Process of Law (a court or judge has to have a reason to deprive you of any liberty--and it must be done in a process that allows you a defense, etc.)
What is the militia? Historically, it is the unorganized body of all able-bodied men aged 16 years and older—unorganized in the sense that it is not an active or full-time military unit. But since colonial days and up until the States were forced to shutter the real militias and form the National Guards under the auspice of Federal control in the 1930s and 1940s, the militia was always organized into local units, divisions, companies, with military ranks and commissions given, and militia members were trained locally accordingly to the requirements prescribed by Congress.
Now, as to the intent and full meaning of the Second Amendment, the State Constitutions of the time should help clarify the principles upon which the Second Amendment of the 1787 U.S. Constitution was written:
The Virginia State Constitution of 1776:
"Sec. 13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."
The Pennsylvania State Constitution of 1776:
"XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power."
The Maryland State Constitution of 1776:
"XXV. That a well-regulated militia is the proper and natural defence of a free government.
"XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.
"XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power."
The North Carolina State Constitution of 1776:
"XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."
Rhode Island State Constitution of 1776:
"Sec. 22. The right of the people to keep and bear arms shall not be infringed."
The New York Constitution of 1777:
"XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State."
The Georgia State Constitution of 1777:
"ART. XXXV. Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies."
The Vermont State Constutution of 1777:
"XV. That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."
The Vermont State Constitution of 1786:
"XVIII. That the people have a right to bear arms, for the defence of themselves and the State: and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power. …
"XIX. The inhabitants of this Commonwealth shall be trained and armed for its defence, under such regulations, restrictions, and exceptions, as the General Assembly shall by law direct. The several companies of militia shall, as often as vacancies happen, elect their captains and other inferior officers; and the captains and subalterns shall nominate and recommend the field officers of their respective regiments, who shall appoint their staff-officers.
"XX. All commissions shall be in the name of the freemen of the State of Vermont, sealed with the State seal, signed by the Governor, and in his absence the Lieutenant-Governor, and attested by the Secretary; which seal shall be kept by the Council."
The United States of America Federal Constitution of 1787:
Second Amendment: "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."
If you are still confused about what the Second Amendment of the U.S. Constitution means, re-read those sections from the state Constitutions, and perhaps it will sink in. The so-called "gun control" that is being pressed on the people of the United States today clearly infringes on our rights to keep and bear arms, and flies in the face of the reason the Second Amendment was adopted: to provide for the security of a FREE state. If the Second Amendment has outlived its usefulness, then we have either reached a plane of human consciousness where security is not something we need to worry about anymore, or the United States of America are no longer Free States.
the Second is the only thing standing between a complete Constitution and none at all. when it goes, so will the rest of that great document.
Make sure you enter the (*) required information where indicated. HTML code is not allowed.