Ruling on the Right to Bear Arms - Laurence Silberman

[leicamaster]

Makes sense to me. People may not like guns, but it's our right to have them.

[lezamaj7]

he looks like Raymond's dad from Everybody loves raymond

[shakaz01]

In the context of the constitution, the right to bear arms seems to be collective and only for the defense of the nation as oppose to individual defense.

Even if the people can form militias constitutionally congress is suppose to regulate them and even have officers and discipline, so it could not be referring to simply individuals and their personal right to bear arms. I think a constitutional amendment would solve the argument.

[shakaz01]

Militia: Article 2 : section 10: 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;

[trickmastermonkey]

currently, there is now a shortage of ammunition virtually in every store in the U.S. that sells firearms.

if there is ever a revolution over citizens' rights to own a gun and defend themselves in an attack from enemies foreign and domestic, worst case scenario you can all bet your civil liberty longing asses the president is gonna have a shitstorm on his hands

[arcanist9]

I believe that even the twits who oppose gun ownership have the right to pick up a gun and defend themselves if someone invades their home and/or endangers their lives.

[superiorgreen]

The founding fathers were afraid of a standing army and the power it wields under rule.......Article 1 Section 8 says ... Congress has the power to appropriate for a standing army for no more than 2 years, can call forth militia (from the states) to "execute the Laws of the Union, suppress Insurrections and repel Invasions" , and to provide for the training and arming of militias when to be called forth BY CONGRESS to act on behalf of The United States. Officers are selected by the State Militia

[superiorgreen]

"........The right of the people to keep and bear arms shall NOT be infringed." How difficult is that to understand? The founding fathers were well aware of the need for the people to bear arms, thus keeping the power from centralizing under a ruler/ruling power. The second amendment is the last stop in the checks and balances process, remember The Revolutionary War, the imperialist king, taxation, and authoritarian rule? Our founding fathers could not forget it.......thus The Second Amendment!

[Robfenix]

If the 2nd amendment indeed does protect a pre-existing right, then that right should be subject to all the limitations of that pre-existing English right. The right of Englishmen to bear arms was only protected as against the Crown, and "subject to law," meaning that Parliament could restrict it.

Further, Silberman and others used an interpretive method from the 19th century over the interpretive method used in the 18th century for their analysis of the importance of the 'prefatory clause.'

[freesk8]

The pre-existing right is the right of self defense, which exists before kings and parliaments come in to existence. It is a natural right, that comes from the ownership each individual has in his or her self.

We each own our own bodies. We are not owned by any government, nor by the collective community.

[Robfenix]

I agree that that is what the 5 Justices in the Keller majority asctually believe. They will just never say it. Scalia has consistently railed against using Natural Law reasoning, yet he uses it the most. He just doesn't say he is using it.

[saved03]

@freesk8 Good argument! You know that saying the pen is mighter than the sword. Well without the sword would the pen have a freedom to express it's self? Freedom of speach solely depends upon the right to keep and bear arms. Remember what happens to people who spoke out against Hitler and Stalin. Shouting out in gun fire speaks louder than one's voice or one's notebook. Ann's diary didn't stop the Holocaust. Soldiers with guns did.

[episodeIII]

milita is your last home shame we dont have the 2nd in the uk good luck and god bless

[freesk8]

There can be no such thing as a "collective right."

Imagine you are part of a collective that is supposed to have a right, say, freedom of speech. Let's say that your opinion is in the minority in the collective. If rights are collective, then the collective (majority?) will be able to prevent you from speaking. You will have no right to free speech. This is absurd. All rights are individual, otherwise they are no rights at all.

The Const. grants no rights. Rights come from self-ownership.

[Slug99]

But freedom of speech isn't a collective right, your example isn't valid at all.

[hozehd]

yes that would be like saying you can only speak freely if you get a registration and speak as a group.

[freesk8]

Right. If you have to get permission it is a privilege, not a right.

You never have to ask permission to exercise a right.

[freesk8]

I used speech as an example because most people acknowledge it as a right. But the argument applies to any other true, natural right.

Any right that you really want to have, must be individual right, otherwise the majority would control it, and it would be no right at all.

Name me an example of a supposedly collective right. I don't believe there are any.

[hozehd]

right to assembly. I think if you try to do that by your self its called something else.

[freesk8]

The individual, natural right that is in operation here is the right to liberty. You have the right to do whatever you want to do, as long as you are not violating the rights to life, liberty or property of anyone else. So you can hang out in any public place you want, or any private place as long as you have permission of the owner. But each individual has the right to "assemble." If that were a collective right, then each indiv. could be kicked out one at a time until no one was left!

[klalkity]

If this guy is right, then the constitution forbids any infringement on _individuals_ right to bear arms! Wouldn't this undermine restrictions, background checks, etc.?

[migkillertwo]

yes, yes it would, and yes it does.

[Hopeful71]

"Wouldn't this undermine restrictions, background checks, etc.? "

Depends how you interpret the Framer's intention. If you believe this interpretation then everyone, including criminals, has a right to own any weapon, from handguns to automatic weapens to rocket launchers to literally nuclear arms.

The argument then goes if you want ANY restrictions on the above it most be achieved through Constitutional amendments.

[voyeurdug]

Have a hard time believing Silberman's thinking is or was that shallow and simplistic.

[verstwo2]

the thing that confuses me is that there are many many 'arms' (weapons) that didn't exist when the constitution was written.  They couldn't have possibly meant nuclear arms, automatic or even semi automatic weapons didn't exist at the time. Yet the constitution clearly does not prohibit these, as it was written.

Does the individuals 'right to bear arms' include the right to bear 'nuclear arms'?

[migkillertwo]

"They couldn't have possibly meant nuclear arms, automatic or even semi automatic weapons didn't exist at the time."

Given that the 2nd amendment is ultimately rooted in the Lockean notion of the right of the people to overthrow the Government, I would contend that they absolutely believed that the people have a right to possess nuclear arms.

[verstwo2]

And you believe the indiscriminate destruction of nuclear arms is a legitimate way to overthrow your own government? Kill everyone and let god sort 'em out? For some reason I don't think Lockean philosophy accounted WMDs. I also think it's a long (but not impossible) stretch from a right to 'bare arms' to a right to 'nuclear holocaust'.

[Robfenix]

If the originalists truly believed in their approach, then, yes it would. Instead, Scalia in the opinion, simply proclaimed that assault weapons are excluded because they are "not commonly used." Hmm, they are not commonly used because they are banned by federal law. Since the Constitution > Federal statute, the status of a weapon under statute should be irrelevant. Sigh. It all is well-veiled legislating from the bench.

[hozehd]

Lumping automatic semi auto and nuclear weapons together is ridiculous. Most guns are semi auto it doesn't make them super dangerous.

[verstwo2]

I was listing examples of weapons that didn't exist when the US constitution was written.

[dvcrsn]

Using that standard--you lack the right to use modern communication technology

[crackyflipside]

The right of the people to keep and bear arms shall not be infringed... pretty simple.

Anyways, there are way too many guns in this country to have an effective weapons ban. Criminals won't turn in their guns anyways.

[entropyfu]

You might as well post the whole thing:

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

[hozehd]

yes that means that not only do we have an individual right to bear arms but we also have the right to form militia to protect the freedom of our state.

[Scoforever]

I have a fundamental right. The right to arm bears.

[freesk8]

As long as you don't forcibly tax others to pay for the guns you give bears, please feel free!