Guns a collective or individual right?

[Hugh Damright]

What is the significance of the distinction you are making, Hugh? The people of the several states are the people of the whole US, are they not? E pluribus unum.

This is of the greatest significance! The Tenth Amendment was intended to clarify that the States delegated only limited, enumerated powers to the US, and that all other powers within each State remain with that State - that any power over Virginians is reserved to Virginians or to our Virginia Legislature to whom we delegated such power. The whole point is that any power over Virginians is *NOT* up to the people of the whole US.

When the Framers speak of the people of the several States and their respective governments, they are speaking of Virginians and our Virginia State Government.

I believe that when the Framers use the term "the several States" or "the people of the several States" that it means respectively. And the Tenth Amendment does say that undelegated powers are reserved to the States respectively, and that means "to each individually".

 

[Al Norris]

OK Hugh. I understand your point better. It's one I can agree with, but...

Where I think we disagree is the Flow of Power.

Power does not flow from the general government, to the States, to the People. It flows FROM the People, to the States, and FROM the People to the general government.

In light of this, the 10th is read as: "The powers not delegated to the United States by the Constitution... are reserved to" is explicitly saying, regardless to whom other powers are reserved, that any power not delegated is forbidden to the general government. The only need to read or interpret further would be if there was another question as to whom these "other" powers belong. We don't even need to define what these "other" powers are, because the Constitution is explicit on what powers the general government has.

If we can agree upon this paradigm, then we can get back to the Second Amendment. Which is a guarantee that the right of the People to be able to defend themselves, their loved ones, and their property against others who would harm them or take their property. It is also a guarantee that the People could defend their communities, their State, or the States United, from invasion. And lastly, it guarantees the right of the People to defend themselves against tyranny from whatever source.

Thus, it is an individual right at its core (self defense), that sometimes may be used in a collective manner (invasion). It becomes a political right only when used to protect against tyranny... Especially when that tyrant is the government, at any level.

This may be an extremist view to some, but it is the view of those extremist Founders of our country.

 

[publius42]

The whole point is that any power over Virginians is *NOT* up to the people of the whole US.

Thanks for your explanation.

Of course, since interstate commerce has been interpreted to mean virtually anything, and since the Bill of Rights (minus the 2nd) has been incorporated under the 14th amendment, I'd have to say you're living in tyranny.

 

[Hugh Damright]

Power Flows People->States->US ... 2nd isn't about Shooting Burglars

Power does not flow from the general government, to the States, to the People. It flows FROM the People, to the States, and FROM the People to the general government.

Well, that is not how I would describe it. I would say that power flows from the people to their States, and from the States to the US. Powers flow to the US by the US Constitution, and the US Constitution and its amendments are ratified by the States, either State Conventions or State Legislatures, but it is the States. California has 70 times as many people as Wyoming, but when it comes to delegating federal powers i.e. ratifying the US Constitution and its amendments, each State gets one vote. To me, if US power flowed from the people, then Californians would get 70 votes, but they only get one, just like every other State. What is the purpose of calling this "the people"? If every State gets one vote, regardless of their greatly varying populations, then it seems so clear to say that the US is empowered by the States, and undelegated powers are reserved to the States. Or, if the word "State" is confusing, then it makes sense to say that the US is empowered by the people AS FIFTY SOVEREIGNTIES.

we can get back to the Second Amendment. Which is a guarantee that the right of the People to be able to defend themselves, their loved ones, and their property against others who would harm them or take their property.

No request for the Second Amendment regarded individuals shooting burglars. I don't think the Second Amendment is about shooting burglars any more than it is about hunting ducks. Self defense and hunting are State affairs. Some State Constitutions go so far as to declare the rkba in defense of the State, in defense of the self, in hunting ... one or two State Constitutions even declare the right to plink! But the Second Amendment clearly regards the defense of a free State. It does not say that armed individuals are needed for security against burglars. And the States did not delegate the US jurisdiction over burglars or self defense or any such police powers, they were reserved to each State, just as the Tenth Amendment says.

 

[publius42]

Why did they put "We the People" in really big letters in the Preamble to the Constitution?

 

[Hugh Damright]

We the States

In the Virginia Ratification Convention, when Patrick Henry asked why the Constitution began "We the People", Madison replied:

"Who are parties to it? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties ... Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large."


The CSA Constitution also began "We the People", but it clarified it by saying:

"We, the people of the Confederate States, each State acting in its sovereign and independent character"

 

[Bravo25]

In the Virginia Ratification Convention, when Patrick Henry asked why the Constitution began "We the People", Madison replied:

"Who are parties to it? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties ... Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large."


The CSA Constitution also began "We the People", but it clarified it by saying:

"We, the people of the Confederate States, each State acting in its sovereign and independent character"

Under these circumstances I would agree that "We the People" is collective in some fashion. However if you remove the word "We" what is left? "The people". Multiples of one. A collective of individuals. The RKBA states that the right of "the people" shall not be infringed. The right of the "mutiple individuals", not the government of them (even at the state level). Again people is only plural to person. It does not clearly define that each states right shall not be infringed, but that the right of the people shall not. "WE" is understood to mean a collective of all. People is simply a plural of one.

I think that is where we have run in to so many problems sometimes. We try to read something into it that isn't there. We have to try and decipher some secret code, or meaning. Take it at face value. The framers did not take the time, and effort to create some document that could not be understood without a law degree. They thought about it, they talked about, and they wote what they meant. So that it could be understood, and aplied to all people. The individual, of which the total, together in complete agreement, make up the "WE THE PEOPLE"

 

[butch50]

We try to read something into it that isn't there. We have to try and decipher some secret code, or meaning. Take it at face value.

BINGO! I agree 100%. Take it at face value without getting tricky about it.

Rights can not be granted to groups, only to individuals - at face value We The People means Me and You and You and You and You - it doesn't mean Them.

How do you grant freedom of speech to groups but not individuals? Just for instance?

 

[publius42]

Who are parties to it? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties ...Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large.

There's a certain duality to Madison's statement.

 

[Hugh Damright]

Madison's statement is clear to me. The language gets in the way ... I think it might be more clear to say "We the Peoples".

 

[publius42]

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Well, I can see why the CSA Constitution further clarified the matter, because some of those things sound like the kind of stuff a sovereign might do.

 

[Hugh Damright]

Certainly you are not suggesting that the Preamble delegates the US powers to establish justice and ensure domestic tranquility thus creating a national or sovereign government? The Tenth Amendment prevents any such construction. The US is limited to delegated powers, the others remain with the States.

The CSA Constitution also said:

We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America.

And even the Articles of Confederation said:

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever

...
To make it clear, the Articles also said:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

And the US Constitution says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And the CSA Constitution said:

The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

So, yes, I suppose someone could take a quick glance at the first few words of the Preamble and think they understand that the US is a sovereign Nation. But they would be sadly mistaken.

 

[Al Norris]

While there is a historical and even analogous relationship between the Articles of Confederation and the Constitution of the US, there is no relationship whatsoever, between the Constitution of the US and the Constitution of the CSA.

Documents of the CSA may not be used to shed any light upon meaning(s) of the Constitution of the US.

The Preamble to the Constitution holds no legal power or authority other than as an explanation as to the "why" of the proceeding text (Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905)). That is the purpose of preambles and were a common literary means of that day. The Preamble merely provides evidence of the origin, scope, and purpose of the Constitution (E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. 453, 464 (1891)).

nb: 1 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 462.

Well, that is not how I would describe it. I would say that power flows from the people to their States, and from the States to the US. Powers flow to the US by the US Constitution, and the US Constitution and its amendments are ratified by the States, either State Conventions or State Legislatures, but it is the States.

But that is not how it is.

The Constituion defines the structure of the general government. It defines how it is to operate. It defines its limits. But the Power was given it, by the people. Not the people as a whole homogenized unit, but by the people in conventions of the states. The State legislatures played no part in the ratification of the Constitution. The Consttuion was therefore not a construct of the States, but of the people.

As for any amendments, now you are correct. They are ratified by the State Legislatures or State Conventions... But the manner and method is controlled by the Congress, not by the States themselves.

Another point of discrepancy: a State Convention is not the State. A State Convention is composed of the people of the State. Whereas the State Legislature is the State, for the purposes of amendment.

When the Constitution was ratified, at that moment, the States lost their exclusive sovereingty. By the power of the people, States became less than they were under the Articles. They shared sovereingty with the general government which could over rule the states in certain matters. All dictated within the Constitution.

The general government became something quite different than what it was under the Articles. It became much more powerfull, as that power, by consent of the people, was strippted from the states and given to the general gocernment.

That is why I said all power flows from the people. None from the States and none from the general government.

California has 70 times as many people as Wyoming, but when it comes to delegating federal powers i.e. ratifying the US Constitution and its amendments, each State gets one vote. To me, if US power flowed from the people, then Californians would get 70 votes, but they only get one, just like every other State.

The simple answer is that it is this way because that's the way it was set up in Articlw VII of the Constitution for ratification, and Article V for amendments. Doesn't detract from my answers in the least.

 

[Hugh Damright]

Documents of the CSA may not be used to shed any light upon meaning(s) of the Constitution of the US.

Oh I beg to differ! The CSA Constitution was what the Southern States had understood the USA Constitution to be. It was nothing new. It was just reworded a bit to stop the endless attempt of yankees to miscontrue it. As Jefferson Davis said in his Inaugural Address:

With a Constitution differing only from that of our fathers in so far as it is explanatory of their well-known intent, freed from sectional conflicts, which have interfered with the pursuit of the general welfare ... We have changed the constituent parts, but not the system of government. The Constitution framed by our fathers is that of these Confederate States. In their exposition of it, and in the judicial construction it has received, we have a light which reveals its true meaning.

The State legislatures played no part in the ratification of the Constitution. The Constitution was therefore not a construct of the States, but of the people.

A construct of the people AS FIFTY SOVEREIGNTIES. The US is empowered by the people AS FIFTY SOVEREIGNTIES. And these sovereignties are called "States". One of these Sovereignties is Virginians i.e. Virginia. Is it your contention that Virginians are one thing and Virginia is another??

 

[Hugh Damright]

My Turn!

Now, I think I'll turn the tables ... instead of me explaining why the Preamble begins "We the People" ... maybe now y'all can explain why the Union is called "The United States of America"? Does that mean the united State Legislatures, or does it mean the people? In other words, doesn't "United States" really mean "United Peoples"?

Also, when the Second Amendment refers to the security of a free State, is it saying that the State Legislatures need to be free, or is it referring to a body of people under free government"?

 

[Al Norris]

I'm going to preface this with a couple of my own opinions (right or wrong), just so Hugh knows.

1. I believe that the southern states had every right to withdraw from the union (White v Texas, notwithstanding).

2. I believe that the North was the initial aggressor.

3. I believe that Lincoln turned this Union on its head, in his single minded zeal to keep the Union intact.

Oh I beg to differ! The CSA Constitution was what the Southern States had understood the USA Constitution to be.

You may "beg to differ" all you want. The only thing that the CSA Constitution represents is one factions view. Since the CSA did not win its independence, its Constitution is irrelevant to this discussion on what the US Constitution may or may not say. Even assuming that the CSA had won, its Constitution would still be irrelevant to this particular discussion.

The viewpoint above is based upon my utter distaste for any US Court to use foreign documents in its deliberations.

A construct of the people AS FIFTY SOVEREIGNTIES. The US is empowered by the people AS FIFTY SOVEREIGNTIES. And these sovereignties are called "States".

You are not a sovereign. You gave up that authority when you became a member of this (or any other) society. The States are not sovereign, at the most they have a limited shared sovereignty. Their absolute sovereignty was given up when the States joined the Union.

While it may be a nice-sounding turn of phrase, it is not accurate in the least.

 

[publius42]

maybe now y'all can explain why the Union is called "The United States of America"

Because once united, you can't secede!

Sorry, couldn't resist!

 

[Hugh Damright]

Documents of the CSA may not be used to shed any light upon meaning(s) of the Constitution of the US.

I have personally used the documents of the CSA to shed a bright light upon the meaning(s) of the Constitution of the US. I have to assume that others, if they try, are also capable of learning more about the US Constitution by studying the CSA documents.

As President Davis said, the CSA Constitution was what the Framers intended the US Constitution to be, and it was what the SCOTUS had ruled the US Constitution to be. The CSA documents not only shed a light on the US Constitution, they shed "a light which reveals its true meaning".

 

[publius42]

Yeah, I'm with Hugh on that one. With all due respect to our new staff member, that's the first absurd statement I've seen from you.

The Founders were guided by the history and documents of other Republics in framing the Constitution. Today, the SCOTUS talks about taking proper note of foreign laws.

The Confederate Constitution was written by Americans, who were trying to improve upon our own Constitution. I can't see how you could study it without learning more about the US Constitution.

 

[Hugh Damright]

Antipitas, I try to say that the US is empowered by the States, but you insist that "State" means "Government". So I try to say that the US is empowered by the People as fifty sovereignties, and you insist the States are not sovereign. Is there any way possible that you could, in your own words, admit that the US is empowered by the people, not as one collective, but rather as fifty?