Whether the Second Amendment Secures an Individual Right

Kelly J

New member
Whether the Second Amendment Secures an Individual Right

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I downloaded this Doc. back in 2004 and saved it, It is quite long but well worth the read if anybody would like it I will E-Mail it the Doc. is 769KB in length and I have it on CDRom, in word Doc., and in PDF Format, I cain't email the cd but that optionis available, if you want the CD Rom I could burn you a copy and the cost would be the price of the cd RomDisk the jewell case, and actual postage to your location.

It only takes me 5 min. to e mail it.
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Kelly J
 
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:confused: not sure where this is going but lemme tell you it'll take a lot longer to email 769mb unless you're on a fat fiber pipe. :P I'll be happy to set up an ftp account for you to upload this to a speedy webserver but I need assurance that it's not copyrighted information

you sure it's not 769kb? a 769mb document would be millions of pages..
 
It's available online: http://www.usdoj.gov/olc/secondamendment2.htm

It is the Department of Justice (DOJ) August 2004 position on the second amendment - compliments of then Attorney General Ashcroft.

Sorry to spoil it for those of you who want to read, but here's how it ends:
Conclusion

For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.

-Dave
 
Thanks Bluesman for that summary/conclusion.

I agree with this conclusion (not that it matters :) )

Every other right in the Constitution (such as freedom of speech, religion, due process, etc.) are individual rights. Why would the 2nd be any different? It's really that simple.
 
Redworm, Thanks fo pointing out my error

It seems that I have made several errors on this one post, first putting it in the wrong place then making totally unrealistic claims of being able to transmit 769MB of information in 5 min. (I WISH).

Ok here is the deal I moved this to where it is because I put it in the wrong place to start with, then it was pointed out that I did not proof read the post and now I have gone back and edited the post to correct the Hyper speed error.

That done can we find any other errors that I need to fix, HA! HA!

The Information was downloaded froma Gov. Site and it is public Info.

(\_/)
(=".")
(")-(") I got this froma site and thought it cute and inthis case a good logo for HYPER SPEED E MAILS
 
Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views.
Is Ashcroft saying that there is no persuasive basis for the view that Virginians have a collective right to a militia, to a State Militia, to defend our free State? And that we have only an individual RKBA?

I bet that's just what King George said in 1776! :barf:
 
leadcounsel

I agree it is that simple, but you must also agree that the Democratic Party, and the ilk of the Brady Bunch failed to grasp it as a lot of others, it is discusting to have to continually be fighting for a Constitutional right that is so plainly stated in the Bill of Rights.
 
Hugh Damright

In reply to your reply if I understand it correctly, No Ashcroft is not implying that the States or Militia do not have a right of protecting the State or it's Citizens in time of a chrisis, but is mearly trying to establish that the COMMON LANGUAGE of the day when the Bill of Rights was Penned, that the individual does in fact have the RIGHT TO KEEP AND BEAR ARMS that this right is not nor was it intended to be the sole right of the State or the Militia, and from more common language of the day considering that the Militia was the accumlation of all able bodied men it then follows that the individual was also a major part of that body, and in fact there was no NATIONAL GUARD yet established.

If I have misunderstood your reply, I appoligize, but if I did understand it correctly I hope I have been able to explain it to you so that you have a clear grip of the thing.
 
It is hard for any intellectually honest man who has read history to understand the 2nd Amendment to protect other then an individual right to keep and bear arms. At that time in our history when we had just recently gained our liberty from the tyranny of the King George III and much of that struggle had been sustained by private arms in the hands of private men. At Saratoga, perhaps the most important battle of the war as the defeat of Burgoyne helped to secure the direct and open aid of France, the tide of that battle ebbed and flowed on the efforts of large numbers of the Militia, men bearing private arms. Much the same can be said for the Battle of Cowpens which was the pivot point of the Southern campaign.

How hard is it to understand that our founding fathers would desire to preserve in the people the capacity to fight for their own liberty by recognizing an individual right to keep and bear arms when the establishment of their own liberty had so recently depended on exactly that capability?

Best Regards,
Richard
 
I consider the individual RKBA to regard shooting burglars and hunting and such, I consider the collective RKBA to regard revolution and war and such, and I consider the Second Amendment to regard the collective RKBA.

I think the problem here is in viewing what a collective right is. In a free State, the collective is the people. A collective right is a right of the people. And an individual right is a right of the person. I believe that Virginians have both an individual RKBA and a collective RKBA, but the Second Amendment regards the collective right. I just don't see what is so intellectually honest about taking this principle that the people of a free State have a collective RKBA to secure their free government, and construing it to protect only an individual right and not a collective right.

I think the point that is missed is that we might have the individual right in a monarchy. We might be subjects with a King who believes in the individual right to shoot burglars and to hunt ... but what sets a free State apart is that in a free State the people have a collective RKBA to alter or to abolish their government.
 
Can you name a few collective rights?

I understand that there has been a long history of thinking about collective rights, perhaps starting with Jean-Jacques Rousseau and his popular sovereignty in contrast to John Locke's treatment based on individual sovereignty, but we can readily determine that the founding fathers, to a very great extend, accepted a model of individual rights over that of collective rights. Rousseau possessed an aversion to representative-democracy, that is republican government, and greatly preferred direct democracy where the collective will of the people would be more fully expressed.

To a great extent, Locke's rights where negative rights as in "I have a right not to have my property stolen", or "I have a right not to be compelled to worship God", or "I have a right not to be assaulted". Rousseau introduced positive rights as in "I have a right to eat" or "I have a right to medical care" which only exists in a collative rights model as positive rights necessarily place a burden on the community.

I understand that, in this modern day, a great many people believe in collective rights as the ideas of Rousseau have been extended by such thinkers as Pierre-Joseph Proudhonded and eventually Karl Marx. What should be understood is that the ideas of individual sovereignty and popular sovereignty, of negative individual rights and positive collective rights are incompatible with each other and that republican forms of government favor the former while more democratic forms of government favor the latter.

The republic our founding fathers created was based on a model of individual rights as in "all men are Created equal", with each man possessing individual inalienable rights granted by God, and not collective rights, but as we have become progressively more democratic over time, individual rights, especially individual property rights, have been continually eroded in favor of collective rights. This does not mean that there was no intrusion of ideas from the popular sovereignty camp, but rather that it was the ideas of Locke that dominated in preference to those of Rousseau. Certainly the idea of a right to revolt is something of a collective right, at least in Madison's mind, else the Timothy McVeighs of the world might have some actual justification for their despicable actions.

The primary danger of a collective rights view is that it is often used to justify the infringement of individual rights as can be readily illustrated by considering the controversy over the Second Amendment where those who would like to limit or infringe the individuals right to keep and bear arm construe the Second Amendment to provide for a collective right.

The same is true of those that justify the taking of private property through taxation to pay for any number of "collective" rights which finds expression in such social welfare programs as Medicare, Social Security, Food Stamps, WIC, HUD, at. el. The problem is that a man that is not entitled to the products of his own labor, his own property, is not a free man as is apparent when we take the ideas of collective rights to the extreme experienced in communist nations like the former Soviet Union. In such states, private property is literally a crime, it is theft from the collective as all people already own all property collectively and no person has any individual right to any property.

It saddens my heart to witness that so many Americans are willing, even glad, to exchange their individual liberty for the incremental slavery of collective rights.

The Second Amendment protected an individual right when it was ratified, the question is if we will, in the end, have any individual rights at all or if all of our rights will be held only as members of groups? In such an event I think I would, however ironic it might appear, participate in a popular revolt, a collective action, in an effort to restore my liberty as an individual so that I might once again live in a nation where the government acts to preserve our natural rights as individuals instead of acting to extinguish the same.

Respectfully,
Richard
 
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Can you name a few collective rights?
Er, no.

Personally I think that the founding fathers had it right when they said that government was by the consent of the people. It is a house of cards and the people are the table beneath it.

BTW Leadcounsel, what percentage of lawyers would you say hold these truths we continuually discuss to be self evident?
 
I also urge everyone to buy a copy of "A People Armed and Free: The Truth About The Second Amendment" by Jack Reynolds, J.D.

Reynolds is a gun-neutral lawyer who set out to review all of the examinations of the 2nd Amendment from a legal standpoint and concludes that the 2nd A. is indeed an individual right. Good reading and a valuable source to keep to debate against antis.
 
Can you name a few collective rights?
I believe that examples of collective rights are the right to alter or to abolish government, the right to establish and ordain a Constitution, and the right to declare war and peace.


What should be understood is that the ideas of individual sovereignty and popular sovereignty, of negative individual rights and positive collective rights are incompatible with each other
I believe that Virginians have both individual rights and collective rights. I don't consider one to be positive and the other negative ... I believe that what defines a society/culture is the way collective and individual rights are balanced.


The republic our founding fathers created was based on a model of individual rights as in "all men are Created equal", with each man possessing individual inalienable rights granted by God, and not collective rights
The US Constitution creates a federal system which is based upon States' rights. I see the term "all men are created equal" as regarding collective rights. The way I understand it, there is monarchy where the individual King is sovereign, aristocracy where a small body of men is sovereign, and free government where the whole people are sovereign i.e. everyone is equal. Of course, a lot of people are still being fooled by Lincoln's Civil War propaganda, where he tried to say that we are founded upon the idea that all men are created equal as if it meant something else. I believe our Founders might have said that, all men being equal, all white male land owners shall have a right to vote.

It saddens my heart to witness that so many Americans are willing, even glad, to exchange their individual liberty for the incremental slavery of collective rights.
Again, it is not fair to keep saying that individual rights are positive and liberty, and collective rights are negative and slavery. There is a proper balance between individual and collective rights, and if Virginians are being enslaved, it is not because of our collective right to govern ourselves, but rather because yankees keep trying to take that right away.

The Second Amendment protected an individual right when it was ratified
Could you name a few of the individual rights protected by the Second Amendment when it was ratified?
 
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