Wildalaska
Moderator
In many cases, exactly
WildnosimpleanswersAlaska
Guns a collective or individual right?
- Thread starter leadcounsel
- Start date
In many cases, exactly
WildnosimpleanswersAlaska
MicroBalrog
New member
Because obviously the Court is always right.
Our minds are so confused we cannot read the plain text of the Constitution.
The Bill of Rights had to be attached to the Constitution or the Constitution may never have been...........
where some of the ideas came from....
http://www.archives.gov/national-archives-experience/charters/virginia_declaration_of_rights.html
The Virginia Declaration of Rights
Virginia's Declaration of Rights was drawn upon by Thomas Jefferson for the opening paragraphs of the Declaration of Independence. It was widely copied by the other colonies and became the basis of the Bill of Rights. Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1776.
--------------------------------------------------------------------------------
A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government .
Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.
Section 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.
Section 4. That no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, nor being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.
Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.
Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assembled for the public good.
Section 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.
Section 8. That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.
Section 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Section 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
Section 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.
Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
Section 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; 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.
Section 14. That the people have a right to uniform government; and, therefore, that no government separate from or independent of the government of Virginia ought to be erected or established within the limits thereof.
Section 15. That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.
Section 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.
where some of the ideas came from....
http://www.archives.gov/national-archives-experience/charters/virginia_declaration_of_rights.html
The Virginia Declaration of Rights
Virginia's Declaration of Rights was drawn upon by Thomas Jefferson for the opening paragraphs of the Declaration of Independence. It was widely copied by the other colonies and became the basis of the Bill of Rights. Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1776.
--------------------------------------------------------------------------------
A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government .
Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.
Section 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.
Section 4. That no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, nor being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.
Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.
Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assembled for the public good.
Section 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.
Section 8. That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.
Section 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Section 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
Section 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.
Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
Section 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; 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.
Section 14. That the people have a right to uniform government; and, therefore, that no government separate from or independent of the government of Virginia ought to be erected or established within the limits thereof.
Section 15. That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.
Section 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.
Wildalaska
Moderator
Nope, but someone has to be the arbiter, and thats why there are three branches of goverment
Change the word confused to biased to a particular socio/political weltanshauung and youve got the idea
WildwhyamievendebatingthisAlaska
You're forgetting branch #4.
"The inherent right of the people to reform their government, I do not deny; and they have another right, and that is to resist unconstitutional laws without overturning the government." --Webster
If the people cannot be an arbiter of the constitution, where do they get the right to resist or overturn the government?
mooreshawnm
New member
To read the founders writings (not that I am a constitutional expert) and determine that they meant the 2nd to be collective tells me that there are some people kidding themselves. Why would it be in bill of rights at all if it were mearly a policy letter for the local militia commanders?
It is so obvious the founders meant for this amendment to give THE PEOPLE the right to bear arms that I cannot believe this discussion has lasted this long. Did I make a mistake annd post on NPRs chat line?
Shawn
It is so obvious the founders meant for this amendment to give THE PEOPLE the right to bear arms that I cannot believe this discussion has lasted this long. Did I make a mistake annd post on NPRs chat line?
Shawn
Hugh Damright
New member
In a Free State, the Collective is the People
In a free State, the collective is the people. A collective right is a right of the people. The "collective" is not the national guard, militia commanders, or any other group that is removed from the people.
I think Sarah Brady spins the collective right to be a right of something other than the people. Let's not let her do our thinking for us. In a free State, the collective is the people.
In a free State, the collective is the people. A collective right is a right of the people. The "collective" is not the national guard, militia commanders, or any other group that is removed from the people.
I think Sarah Brady spins the collective right to be a right of something other than the people. Let's not let her do our thinking for us. In a free State, the collective is the people.
MicroBalrog
New member
“The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the legislative and executives also in their spheres, would make the judiciary a despotic branch.”
Thomas Jefferson, 1821
Thomas Jefferson, 1821
Marko Kloos
Inactive
Well, the difference is that an Executive Order can either be declared unconstitutional by the USSC, or invalidated by Congress (by passing legislation that contradicts the EO, although they'd better have a 2/3 majority because of the President's veto power.)
A USSC decision can only be checked by another USSC decision at a later point (like Plessey v. Ferguson, which was contradicted by Brown v. Board of Education), which doesn't happen a whole lot thanks to lawyer infatuation with stare decisis.
A USSC decision can only be checked by another USSC decision at a later point (like Plessey v. Ferguson, which was contradicted by Brown v. Board of Education), which doesn't happen a whole lot thanks to lawyer infatuation with stare decisis.
A couple of (not so quick) thoughts on all of this.
When the Framers wrote the Declaration; the Articles of Confederation; the Constitution and the Bill of Rights, they were absolutely clear on the meanings of their words. When they meant the Unified or National government, they always used the word, government. When they meant states, they used that word. When they meant the individual, singly or collectively as a whole, they used the word, people.
It is inescapable that when the word used was "people" that they meant anything other than people. Ordinary, everyday people.
There is another device the Framers used. When they talked about "rights," it was always in reference to the people. Whenever they talked about the government or the states, the word used was, power. Less often, authority.
The Framers never deviated about this. People have rights and governments, state or federal, have powers and authorities. The only other definition that is used by the Framers is that of privileges and immunities. A term of art, used first by Locke and then by Blackstone. The Framers used it to describe the unalienable rights of man as opposed to the rights derived from political association.
Look at the following:
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.
The underlined portion are the unalienable rights referred to. Those are the immunities referred to by Locke and Blackstone. Under the philosophy of Locke, immunities could not be abrogated by a government. A government could prevent a person from employing or using an immunity, but it could not take it away. Privileges were known to be different. They were the things we gained by associating into a society. They could be taken away, or altered. But immunities were always something the individual retained.
When the Framers first wrote the Articles, they incorporated this concept thusly:
Articles of Confederation
Art IV: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States;
The Framers were not stupid people. Rather, they were highly educated and knew of what they were writing. They knew that certain rights, were in fact privileges that society granted as opposed to the natural rights expressed in the Declaration. The right of Habeas Corpus, is one example of a privilege that cannot exist outside of a society. Trial by Jury is another example.
When it became apparent that the Confederation had failed, they wrote the Constitution, carrying forward certain definite concepts that were in the Articles:
U. S. Constitution
Art. IV Sec. 2 Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
This was supposed to guarantee to the people, the same rights, as they existed under the Articles. It is also the real reason that Hamilton and Madison did not want or need a separate bill of rights to confuse the issue. In their view, and that of many of the other Framers, the government was restricted to only those powers that were enumerated within the Constitution. They really couldn't see the need to spell out what a man's rights were.
Too, they feared that trying to list such rights, would give way to the thinking that only those listed actually existed. They knew they did not have the necessary intellect to describe all rights, and that any not mentioned would soon be left to the largess of the government... Something they feared.
From our perspective, their fears were justified. The right of and to privacy is the best example that I can give. It is not listed and there is today, the argument that such a right does not really exist (despite the wording of the 9th and 10th amendments) in a general form.
The ordinary citizen, not being as educated as many of the Framers (Patrick Henry to name one), could not fully understand the reasonings and persuaded their fellows (and their individual states) to insist upon a bill of rights to protect the ordinary man. We have to remember that these people, even the Framers, distrusted Big Government wholly. They had just fought and won a war with arguably the greatest power on earth.
Regardless, Madison came to agree with the common people and proposed a Bill of Rights to the first session of the new congress.
Jumping ahead to the reconstruction era, we can see this same mechanism used in the 14th amendment. This amendment was a dramatic power shift, in that for the first time in 100 years, the federal government was given the power to force the states to protect individual rights:
14th Amendment
Sec. 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What is unfortunate is that the Court in the Slaughter-House Cases, 83 U.S. 36 (1872), ignored the privileges and immunities clause and concentrated upon the other clauses, underlined above. This has effectively written the privileges and immunities clause completely out of the 14th. This is also the vehicle by which we have gotten the so-called selective incorporation of rights.
Every single Court after this point, has used this single case (and those that followed) as precedent to make further rulings. Stare Decisis is the method used to make procedural rulings when the Court is too scared to make a ruling on the substantive issue at hand. It's a human trait actually. We almost always take the easier path to avoid controversy and confrontation.
All of this rambling, to try and show that there is no such thing as a collective right, nor states rights. The government (at any level) has powers and authorities and the individual has rights (privileges and immunities).
One of these immunities, was the right of the people to abolish a government that had abused its citizens. The most effective means known were the use of force, the use of arms, to overthrow the government. Another right was the right to life. And again, the most effective tool, was the use of force, of arms to protect the individual. In as much as the people were coming together to abolish a government, the right can be stated as a collective right, but it still rests squarely with the individual right to ones own life. Collective rights is a term that does not actually exist outside of the Court.
The entire concept of a collective right was foreign to the Framers and is an invention of socialists in the late 19th and early 20th centuries. In fact, early on, collective rights referred only to those rights that were privileges and not those rights that were immunities. In the mid 20th century, the collective rights issue morphed into most if not all rights, as the Courts began giving corporations the same authority as natural persons.
When the Framers wrote the Declaration; the Articles of Confederation; the Constitution and the Bill of Rights, they were absolutely clear on the meanings of their words. When they meant the Unified or National government, they always used the word, government. When they meant states, they used that word. When they meant the individual, singly or collectively as a whole, they used the word, people.
It is inescapable that when the word used was "people" that they meant anything other than people. Ordinary, everyday people.
There is another device the Framers used. When they talked about "rights," it was always in reference to the people. Whenever they talked about the government or the states, the word used was, power. Less often, authority.
The Framers never deviated about this. People have rights and governments, state or federal, have powers and authorities. The only other definition that is used by the Framers is that of privileges and immunities. A term of art, used first by Locke and then by Blackstone. The Framers used it to describe the unalienable rights of man as opposed to the rights derived from political association.
Look at the following:
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.
The underlined portion are the unalienable rights referred to. Those are the immunities referred to by Locke and Blackstone. Under the philosophy of Locke, immunities could not be abrogated by a government. A government could prevent a person from employing or using an immunity, but it could not take it away. Privileges were known to be different. They were the things we gained by associating into a society. They could be taken away, or altered. But immunities were always something the individual retained.
When the Framers first wrote the Articles, they incorporated this concept thusly:
Articles of Confederation
Art IV: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States;
The Framers were not stupid people. Rather, they were highly educated and knew of what they were writing. They knew that certain rights, were in fact privileges that society granted as opposed to the natural rights expressed in the Declaration. The right of Habeas Corpus, is one example of a privilege that cannot exist outside of a society. Trial by Jury is another example.
When it became apparent that the Confederation had failed, they wrote the Constitution, carrying forward certain definite concepts that were in the Articles:
U. S. Constitution
Art. IV Sec. 2 Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
This was supposed to guarantee to the people, the same rights, as they existed under the Articles. It is also the real reason that Hamilton and Madison did not want or need a separate bill of rights to confuse the issue. In their view, and that of many of the other Framers, the government was restricted to only those powers that were enumerated within the Constitution. They really couldn't see the need to spell out what a man's rights were.
Too, they feared that trying to list such rights, would give way to the thinking that only those listed actually existed. They knew they did not have the necessary intellect to describe all rights, and that any not mentioned would soon be left to the largess of the government... Something they feared.
From our perspective, their fears were justified. The right of and to privacy is the best example that I can give. It is not listed and there is today, the argument that such a right does not really exist (despite the wording of the 9th and 10th amendments) in a general form.
The ordinary citizen, not being as educated as many of the Framers (Patrick Henry to name one), could not fully understand the reasonings and persuaded their fellows (and their individual states) to insist upon a bill of rights to protect the ordinary man. We have to remember that these people, even the Framers, distrusted Big Government wholly. They had just fought and won a war with arguably the greatest power on earth.
Regardless, Madison came to agree with the common people and proposed a Bill of Rights to the first session of the new congress.
Jumping ahead to the reconstruction era, we can see this same mechanism used in the 14th amendment. This amendment was a dramatic power shift, in that for the first time in 100 years, the federal government was given the power to force the states to protect individual rights:
14th Amendment
Sec. 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What is unfortunate is that the Court in the Slaughter-House Cases, 83 U.S. 36 (1872), ignored the privileges and immunities clause and concentrated upon the other clauses, underlined above. This has effectively written the privileges and immunities clause completely out of the 14th. This is also the vehicle by which we have gotten the so-called selective incorporation of rights.
Every single Court after this point, has used this single case (and those that followed) as precedent to make further rulings. Stare Decisis is the method used to make procedural rulings when the Court is too scared to make a ruling on the substantive issue at hand. It's a human trait actually. We almost always take the easier path to avoid controversy and confrontation.
All of this rambling, to try and show that there is no such thing as a collective right, nor states rights. The government (at any level) has powers and authorities and the individual has rights (privileges and immunities).
One of these immunities, was the right of the people to abolish a government that had abused its citizens. The most effective means known were the use of force, the use of arms, to overthrow the government. Another right was the right to life. And again, the most effective tool, was the use of force, of arms to protect the individual. In as much as the people were coming together to abolish a government, the right can be stated as a collective right, but it still rests squarely with the individual right to ones own life. Collective rights is a term that does not actually exist outside of the Court.
The entire concept of a collective right was foreign to the Framers and is an invention of socialists in the late 19th and early 20th centuries. In fact, early on, collective rights referred only to those rights that were privileges and not those rights that were immunities. In the mid 20th century, the collective rights issue morphed into most if not all rights, as the Courts began giving corporations the same authority as natural persons.
Wildalaska
Moderator
Whoa-oah there, nice analysis (although not always 100% correct, you got more time than me though)...but.....
Unless my brain is fuzzy, "corporate" rights are a product of English Common law.....
WildjustasmallpointAlaska
leadcounsel
Moderator
+1 Anitpitas. Good analysis.
Wild, it's hard to be 100% dealing with this topic in such a short post.
Thousands of pages have been written on this, and I tried my best to distill it down to something short, but readable. Even as it is, I know I've left out portions that would make it more clear... Ah well, that's what I get by trying to keep it short.
As for Corporations... Yeah, they were Part of English common law. Originally, Corps. had to be re-chartered every forty years or be disolved. They had no special rights other than the stated goals of their charter. Lots of stuff on this topic also.
Thousands of pages have been written on this, and I tried my best to distill it down to something short, but readable. Even as it is, I know I've left out portions that would make it more clear... Ah well, that's what I get by trying to keep it short.
As for Corporations... Yeah, they were Part of English common law. Originally, Corps. had to be re-chartered every forty years or be disolved. They had no special rights other than the stated goals of their charter. Lots of stuff on this topic also.
Wildalaska
Moderator
Ah but they were treated as indviduals to sue and be sued ....
WildthecrowfliesatmidnightAlaska