2nd Amendment and the Declaration of Independence

O

oldbadger

New member
During all the discussion of the 2nd amendment I have been reading, I have seen little or no reference to the Declaration of Independence. Is this due to it being a totally different topic? I wonder. At any rate this excerpt from the second paragraph is meaningful: 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, emphasis mine. The operative words here are "unalienable" and "life". In my opinion this adds a whole lot of historical support to the 2nd Amendment. This makes me even more certain that I have the "right" to defend myself against grave or life threatening danger. Further, upon reading the 3rd Amendment I feel that it is there as sort of an explanation of the necessity to have the 2nd Amendment. It seems to fit with the second to provide a citizen with a mechanism to protect against an overbearing government evidenced by the practice during the Revolution of the British army to place soldiers in civilian homes.
Do you think we should make more of these points in discussions or am I just being picky?
 
It may add support to arguments but the DoI is not a regulatory/legal document that governs US law, and never was.

It as essentially a letter to the king of England that said we were officially independent of England. Remember, we were already at war (for more than a year) when it was written.

So, it may well provide insight and enlightenment but it is not a legal standard.
 
This post was not meant to imply the rule or force of law, but to emphasize the thinking of those men who were instrumental in forming our republic. The designers of the Declaration of Independence were of like mind of those who wrote the constitution which came several years later.
I feel that this expression of opinion was much more prevalent then than now.
 
oldbadger said:
This post was not meant to imply the rule or force of law, but to emphasize the thinking of those men who were instrumental in forming our republic....
Click to expand...
Which could be a basis for an historical or philosophical discussion. But here we discuss what the law is, how to understand it, how it might apply, how to deal with it, and how to go about our business lawfully.
 
Well, respectfully, this is not the first time I have been in the wrong place at the wrong time.
Move or delete the posting (thread) at your discretion. No worries.
 
Are letters written by the authors of the constitution and BOR used by judges to gain insight into their meaning?
 
Sometimes.

If you read the complete rulings from Heller and McDonald, you can learn a lot about the history of the 2A and the RKBA.

That said, I still disagree with Justice Scalia regarding the validity of existing "presumptively lawful" regulations. A regulation is an infringement. The language is clear: "...shall not be infringed." The Founders just couldn't have made it any plainer than that.
 
Justice Scalia's comments in this regard are clearly political, and may have been necessary to obtain the majority he needed for Heller. On the other hand, no right, be it inalienable or not, is absolute. A convicted felon has no right to keep and bear arms in prison, as the easy example. You do not have a right of "self-defense" against the police powers of the state, unless and except that the4 State's actions are without authority or right. You do not have the right to keep and bear arms on my property without my permission--and none at all if I forbid it. You do not have the right to bear arms to further an unlawful act, e.g., rape, robbery, murder. Finally, if we agree that laws affecting rights are not void, but subject to judicial review under various levels of scrutiny (rational basis, intermediate scrutiny, strict scrutiny), we have implicitly conceded that rights may be limited in some circumstances--even when the highest level of scrutiny is imposed. Just as your right to political speech is guaranteed, but is still subject to time, place and manner restrictions, your tight to keep and bear arms is subject to restrictions based on alienage, place, and manner, as Scalia stated.
 
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