The Constitution is the framework of our government, and the fount of our individual rights and liberties; and it has worked well enough for more than two centuries. In this regard, I personally do not find it particularly helpful to try to divine the intent our “founding fathers” in every context, nor illuminating to read the Constitution by candlelight in its application to modern life. I have read the Federalist Papers many times, and what impresses me is that the framers of our Constitution were as much at odds about our form of government as we are today. Certainly, times have changed. Democracy in America has come a long way from its early beginnings following our struggle for independence. Likewise, the America that Alexis de Tocqueville described in the 1830's, which was largely an agrarian society, was eclipsed by the rise of the nation as an industrial power in the latter half of the 19th century to become the great economic and military power of the 20th century; and with such changes came the inevitable expansion of the nature and power of government, and the laws that govern our society. Our “founding fathers” could only be utterly astonished at the America of today; but what I think would comfort them most, notwithstanding the recent attacks by certain groups upon the independence of the judiciary, is that we are still a nation of laws and not men.

Provided that these "ideas" are consistent with the definition of the word as it existed at the time. I never said its definition could change.


The definitions of the words of the Constitution do not change over time. These are not mutually inconsistent positions.

I defer to Jobius' apt explanation.



Originalism takes into account both the spirit and the letter of the law. The purpose of the 2nd Amendment was to defend one's property from tyranny, whether it be government or domestic enemies. It is reasonable to assume that an assailant will attempt to take your property with a handgun or possibly a semi-automatic rifle. It is unreasonable to assume that your property will be taken using an ak-47 or an RPG. Hence, in order to protect one's family and property, they should be afforded the same means to protect themselves as assailants use to attack.



Quite consistent. Protection of arms is in the Constitution. A coercive mechanism that forces individuals to pay into a government program is not. Honestly, I do not have a problem with Social Security as a program. I have a problem with people being forced into it. Young people, like me, are forced to pay into a system that we will receive no benefit from.



It is certainly relevant, I do not deny it. But Its not as if there is a linear progression in Constitutional interpretation. You can point to specific points in history where expansion of government power was most eveident (Civil War, New Deal, Great Society, Bush II). During these times, common law interpretations were thrown out the window in favor of government expansion of power. Whether the majority wanted the change or not is irrelevant. The Constitution was not created to bend to the whim of the majority.



The Constitution is the supreme law of the land. It was supreme in 1789 and it is supreme in 2007. Despite 200+ years of history, it has been changed very few times. Understanding where we came from is important in understanding where we are going. The Founders were not perfect, but they understood a number of political maxims that are as translatable to contemporary society as it was back during their time. Such things as rampant majoritarianism and expansions of government power were looked at with great disdain. Politics hasn't changed all that much since their time. They saw a common thread when it came to tyranny throughout their history and it was arbitrary, centralized, government power. So they intended to create a Republic that would protect individuals from tyranny. If we look at the Constitution and say that what the Founders thought is inconsequential and that their individualism is the archaic ideology of old white men, then the Constitution is meaningless. Like I said, the Constitution is a ball of clay that can be molded by anyone. The Founders kept it intentionally ambiguous, but never did they think that the purpose of the Constitution would ever be in doubt.


But here is what you have to think about lopophage, why has it worked for 200+ years? I would argue it is because the FFs gave us a document that allowed a decent amount of flexibility in a limited framework. Many commented that the Republic will last as long as the American people want it to. I am not arguing against evolution of meaning and wording. But evolution implies a close link between what came before and what comes after. You can't tell me that when a certain clause means a completely different thing (in fact, the exact opposite) today than it did 200 years ago, that it represents evolution.



Reality, lopophage, reality. The reason the judiciary is not elected democratically is to ensure independence. To ensure that they will interpret the law impartial to the opinion of the other branches of government or to the people. The Constitution is a protection against majority opinion and the judiciary is supposed to be the last defense.

I disagree. I don't believe this is a reductio ad absurdum argument. An originalist is cherry-picking certain ideas to fit their political bias; they are not conforming to the tenets of the belief they espouse.


But, that's not the point. The point is that they would have difficulty recognizing the difference between a semi-automatic weapon (allowed) and an automatic weapon (disallowed). They would have trouble differentiating between a shotgun (allowed) and a shotgun that fires explosive ammunition (disallowed). The definition of allowed 2nd Amendment "arms" has changed and will continue to change. To ignore this is to make a reductio ad absurdum argument. And this is the reason why the Constitution is "living"; it is because we can reinterpret terms to fit social, political and technological changes that occur over time.


Umm... No. But, you're on the right track. A "true" originalist (clearly there's no such thing on this board) might argue that the Fourth Amendment doesn't govern searches of data housed on foreign servers.

~~~ Edited to answer leder ~~~~~~~~~~~~~~~~~~~

Where in the Constitution is that written? Are you referring to the Federalist Papers?


Why is it unreasonable to assume that your property will not be taken with AK-47 or an RPG? Is it because they have been banned? Why not just ban all firearms so that it's unreasonable to have your property taken at all?

But, all this is mere posturing. A "Founding Father" would never have had to wrestle with the finer issues of modern hand-wielded firearms. Subsequent court and legislative decisions gave interpretation to what was legal and what was illegal. This in itself means by definition that the language of the Constitution has changed over time, i.e. it is "living".


Sigh. Now, the real reason why "originalism" gets espoused. Coercive systems forcing payment into government programs have nothing, I repeat, nothing to do with originalism. You're trying to get a square peg into a round hole. I am forced to pay into the military budget for a war I don't support, yet I am not espousing "originalism" as the means to get around this.


I don't disagree with anything you've written here. What does this have to do with debate at hand?


I don't think anyone has said the "Founder's" thoughts are meaningless. The question I am still asking and have yet to get answer to is: why should we prefer the "Founder's" ideas over the 200+ years of intervening history and Constitutional interpretation?


Please show me where the "exact opposite" meaning of a clause has come into being. This is a "red herring" argument. No one has argued that Constitutional language has taken the opposite meaning of its original authorial intention.

You've contradicted yourself here. You say that the original purpose was to defend property from tyranny, "whether it be government or domestic enemies." Yet you immediately propose that the assailant wanting your property will have a handgun or a rifle. If the intent was to protect against government tyranny, certainly the government, wanting your property, would have more at hand than pistols. Presumably, they would have tanks, helicopters, nuclear missiles, fighter jets, RPGs, and so on.

And we should be clear on what they meant by property, as well. They meant land. The Constitution, along with the Bill of Rights, was meant to protect wealthy white land-owning men from tyranny etc. So would it be unconstitutional to say that anyone who didn't own property is not allowed to own arms?

There are many ways to understand and interpret the Constitution. In the context of the 2nd Amendment, here is an excellent page from UCLA explaining the various ways people argue the meaning of the Constitution, and the sorts of responses those arguments bring about. To me, all the arguments seem ultimately purposive, in that we see in the text of the Constitution that which enables our own purposes and ideals.

Let's look at the 13th amendment for a minute.



It seems that an "originalist" must believe that slavery is an acceptable punishment for a crime. In other words, it would be constitutional for a legislature to decide that upon conviction of burglary, for example, the convicted person must become the actual slave of the victim for the remainder of their life.

My problem with originalism is the fact that people get all tied up in trying to discern what the Founders wanted. Clearly, as another poster noted, the Federalist Papers (and the Anti-Federalist papers) are filled with contradictory desires and visions. (Kinda makes sense, since they were written by several different authors, and no one can have the exact same opinion on every issue.)

In my opinion, a better way to interpret the Consitution is through recognizing the basic moral principles that underlie it. The Founding Fathers were not so much concerned with ideas of who can bear arms (as I noted previously, many of the Founding Fathers did not even want to include a Bill of Rights with the Constitions), rather they wanted to create a government that allowed for the maximum amount of freedom and justice. If we can see that as the Founding Fathers' original intent, then squabbling over the legal meaning of a word over 200 years ago starts to seem pointless.

If the Founding Fathers' wanted to create a society that maximized equality and freedom (and I suppose that's debatable...), then it is up to society to carefully examine what was written in the Constitution and to change things that are seen to be unjust. This may include debates about the 2nd Amendment, or it may not.

One of the things I lament about American politics is this distraction away from justice and responsibility. By looking at the (contradictory) visions of the Founding Fathers, the American public does itself a disservice by not reflecting on the rightness of the Bill of Rights (or other amendments, or laws) in helping to create a just society.

The Federalist Papers is one source that can be used, but it is not the only one. During the times, owning arms was not seen as a big deal, it did not equate to anarchy as many propose that universal gun ownership equals. Explanatory clauses are rare in the Constitution, although there is one in the 2nd Amendment. The explanatory clause in the 2nd Amendment is explaining that because a militia is necessary for the securing of a free state, that bearing arms is a right. If what the Founders meant was that arms would be cached in public areas, then why was that not how it was implemented in the early years of the republic? The whole of the nineteenth century, bearing arms was seen as an individual right...there is little debate on this. This new interpretation that the 2nd Amendment restricts individual gun ownership is a relatively new thing.



Because a banning on all firearms will not diminish the amount of firearms in society. In the same manner that Prohibition and the War on Drugs banned what were deemed harmful substances, a ban on firearms would do nothing but put law abiding citizens at risk. Criminals do not purchase their weapons legally. They use their weapons for illegal purposes and will not leave a legal paper trail. Yes, there are crimes of passion and yes there is arguably a heightened risk of gun-related violence with more guns...but then what are we debating? Guns or individual responsibility?



We have to pay attention to the subtle nuances of the words we use. Just because the courts adapted modern conditions (moder firearms) to the Constitution, doesn't mean the purpose of the Amendment has changed. You are under the false impression that my position is void of any reason or room for disagreement. Nothing can be further from the truth. What I am saying is that something that means one thing in the nineteenth century cannot "evolve" into the complete opposite a century later.



Repeat it again if it makes you feel better but I did not say originalism has anything to do with coercive government programs. I said that originalism plays a role in interpreting what the government can and cannot do. Its about the powers enumerated in the Constitution.



Its to counter the notion that certain provisions and words have evolved over time. I am arguing that you can point to certain times in history where interpretations were turned on their head by special interests and power hungry executives.



Its not about prefer. I am saying that we should not disregard it. I am saying that what the Founders thought and the purpose they put into the document is important in understanding its application and its implementation. The 200+ years of interpretation is important because like I said, the Founders were not perfect. But despite their shortcomings they were remarkable people who created something that we are still using after two centuries. That is why I think that form time to time we should look to history and see how the Founders handled a given problem and give it some consideration.


The easiest example is the commerce clause. The Founders intended for it to be a check on government ability to regulate commerce. And thats how it was roughly interpreted throughout the nineteenth century, right up to around 1935 with FDR's New Deal. Now the commerce clause is seen as the mechanism by which the federal government can regulate all forms of commerce, the complete opposite of its original purpose.



No contradiction. Yes the government currently wields a lot of heavy weaponry and advanced technology, but that does not mean that we do not have means to defend ourselves. We are a population of 300 million. We have seen in Iraq how an insurgency campaign can be successful at inflicting damage on a conventional force.



They didn't just mean land. Your person is also your property. I can defend my life and the life of my family.



I have seen the article before and it is certainly useful in explaining current interpretations of the 2nd Amendment. But again I counter that many of these arguments are relatively new. I do not know if you can find anyone from the nineteenth century who would agree that the 2nd Amendment was NOT an individual right.




Not really. Look "slavery" took on an extremely negative connotation because of the European slave trade, and rightfully so. But if we go all the way back to the original slaveowners in Ancient Greece and Rome, slavery did not have the same connotation. It merely referred to debtors being in the servitude of creditors who they failed to pay back. It wasn't seen as very negative because it lacked the racial factors and also it was seen as a logical way to repay debts. Slaves weren't treated poorly in the ancient world. Fast foward to 1789, yes a literal interpretation of the 13th Amendment would appear to allow for slavery or indentured servitude. But its not as if that doesnt go on. I mean prisons still have chain gangs and other force prisoners to do public works projects that are quite similar to slavery or indentured servitude. So it isn't really that out there.

This topic has become a debate over what it means to live in a democracy, what our nation stands for, and, ultimately, what we stand for. Are we a democracy? Do we stand for freedom and equality? Is ours a truly representative form of government? Freedom and equality are ideals; but, absent a perfect world, no one can live in society and be entirely free or completely equal. For every freedom there is a corresponding obligation to others, and equality is limited to the extent that such obligations are mutual, and others do not demand rights without responsibility for their exercise. In this, the promise of America is not freedom and equality, but rather liberty and equal opportunity and justice under law. However, such promise cannot be kept when government instituted by men favors the few in derogation of the many, or serves the special interests at the expense of the public interest, and when the rich and powerful can have more justice than the poor and oppressed. Our founding fathers created a nation of laws and not men; but the law can be used (and abused) by men, and thus democracy requires the performance of our duty as citizens, both in choosing our representatives and elected officials, and in seeing that they act in accordance with the law and in the interests of our nation. This is what it means to live in a democracy, the meaning of self-government, and the power of “We the People.”

I don't know whom you're referring to here, but I've been very consistent in my position. My point is simple: the definitions of the words of the Constitution do not change. So are you arguing that modern weapons are not consistent with the definition of "arms" as it existed in 1790-1?

"When I use a word," Humpty Dumpty said in a rather a scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is," said Alice, "whether you can make words mean different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all."

- Lewis Carroll, Through the Looking Glass, Ch. VI (1871)

Possibly because being an originalist doesn't mean quite what you seem to be indicating.

From Wikipedia

Thus it seems that what you are arguing against is "strict constructionism" and not "orginalism".

By the way I am not taking sides in this debate, merely clarifying why the terms being used could be causing confusion.

Well, we may get a taste of some “originalism” soon. On September 4, 2007, the District of Columbia filed a Petition for a Writ of Certiorari with the Supreme Court appealing the decision of the D.C. Court of Appeals striking down the city law banning the private possession of handguns under the Second Amendment in the case of Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). See District of Columbia v. Heller (07-290), and cross-petition Parker v. District of Columbia (No. 07-335). The justices are scheduled to consider the petitions in conference on November 9, 2007; and if the court grants cert., the case may be heard in February or March.

For an informative debate on the Parker case, see The Federalist Society Online Debate Series, Parker v. District of Columbia: DC Gun Ban Case (August 31, 2007) at:
http://www.fed-soc.org/debates/dbtid.9/default.asp

NB: The opinion may be accessed by clicking on Parker v. District of Columbia that is highlighted in blue.

Okay, that's a subtler argument... but what is the essential difference between your allowed and disallowed categories? Is there any legal or principled reason to say that machine guns or explosive ammunition are not arms? There's essentially no case law on the topic. What's allowed and what's not allowed has been an entirely political question, since most of the federal circuits refuse to strike down any gun control laws on Second Amendment grounds. That's not because the courts have taken note of the evolving definition of "arms," it's because they've essentially read the Second Amendment out of the Constitution by saying that it protects only a "collective right" or a state's right, but not an individual right.

Many cities passed laws that made it basically impossible for citizens to possess guns (DC's was one of the strictest), and for decades the courts never found them to violate the Second Amendment. When gun bans have been overturned (like here in San Francisco), it's been on entirely different grounds, because the plaintiffs knew a Second Amendment challenge would go nowhere.

That was the state of affairs during the twentieth century, anyway. In 2001, the Fifth Circuit handed down the Emerson decision, which (in an excellent example of originalism) established that the Second Amendment does protect an individual right -- at least in the Fifth Circuit. This year's Parker case in DC followed similar logic. As Nemo says, we'll know in the next few months if the Supreme Court will hear the DC government's appeal and set a national precedent.


I'm not sure where you're going with this. Is there something about "originalism" that would exclude "data housed on foreign servers" from the Fourth Amendment's "persons, houses, papers, and effects"?

The problem with the Second Amendment (in a nutshell) is that the proscription against infringement does not preclude regulation; which, as made clear by the Supreme Court’s decision in United States v. Miller, is unhampered by the provisions of the Second Amendment. That is why the Parker appeal should be every gun owner’s worst nightmare. The worst case scenario is that the court rules that the Second Amendment does protect an individual right, but that, like owing an automobile or an airplane, it is not a fundamental right; and then we will see gun control like never before. The best thing would be if the Supreme Court denies cert., and allows the D.C. Circuit Court of Appeals decision in Parker to be overruled by remedial legislation for the District of Columbia. Otherwise, we’re all playing Russian roulette with our rights.

I don't understand how things would be worse under a ruling that "the Second Amendment does protect an individual right, but that, like owing an automobile or an airplane, it is not a fundamental right." The status quo is that the federal courts (outside of the Fifth Circuit) don't think the Second Amendment protects an individual right at all. Any rights that gun owners have are due to their political power to influence legislation. A Supreme Court ruling won't change that. Where gun owners have no political power (i.e., DC local government), gun control has already progressed to an absolute ban.

How could the Supreme Court make that worse?

No, I was never confused as to the difference in definitions between "strict constructionism" and "originalism". First, this debate thread is about whether or not the Constitution is a "living" document. I think it's pretty clear it is in fact "living" in that Constitutional language has changed over 200+ of legal, political, social and technological history. Second, "originalism" has a huge problem. It tries to construe the Constitution as not "living" by preferring the "Founders" over 200+ years of history. It tries to do this by saying that the "Founders" language is more pertinent than today's language. AND that Constitutional terms now latent with modern notions can be anachronistically applied to what the Founders would have thought had they existed now. This is just sophistry. However, this "theory" has become very popular in conservative circles because it provides a framework from which to argue their political biases.

I would like every "originalist" on this board to apply this framework to their cherished parts of Constitution as well as the parts they don't like. That's why I keep bringing up the Second Amendment.


Yes, there is something. By foreign, I meant things like ISPs. A number of court cases have ruled in different ways about the boundaries of privacy when it comes to tracking your activities online. But, it looks like most of the recent rulings suggest that a user has no expectation of privacy. Is this something the "Founders" could have anticipated? I really don't believe that "originalism" is sufficient for this.

The argument that the Second Amendment protects an individual right is of questionable authority; which is now the question put before the Supreme Court in the Parker case. The relevancy of whether the Second Amendment provides for an “individual” or a “collective” right, which was dismissed by the Eighth Circuit Court of Appeals in United States v. Hale, has caused a change of position by several leading legal commentators, including Lawrence Tribe, whose treatise on constitutional law was cited by the majority in Parker. In the most recent edition of his work, Professor Tribe now asserts that the Second Amendment protects an important right that should not be dismissed as wholly irrelevant and that “the federal government may not disarm individuals without some unusually strong justification.” See Lawrence Tribe, American Constitutional Law, Third Ed., Vol. 1 (2000). Still, the limits of such an individual right would be difficult to define whatever judicial test may be applied. What is certain is that the Supreme Court will not rule that individuals have an unfettered right to own a gun; and that, consistent with the court’s prior decision in United States v. Miller, such right is subject to regulation by both the state and federal government. Such a decision can only spawn more regulation - not less. As the final arbiter of the Constitution, the decisions of the Supreme Court are binding as law on all of the states; and it is the effect of such a sweeping decision that should have all gun owners concerned.

Why, so you can keep ignoring it, like you did the last two times your challenge was answered? Or did you really mean to say you'd like one of your opponents to apply it in a way that you approve of?

I must have missed this:

Now, that I read it, this has already been answered here.

I am arguing that an "originalist" when applying their system upon modern weaponry has a major problem. The courts and legislatures have ruled that certain types of firearms and ammunition are allowed and certain types are not. It is simply unreasonable to apply thoughts of the "Founders" upon modern technologies such as rapid fire hand-held weapons and high power/explosive ammunition. If you were to apply the "Founders" thoughts, then there would be no limits on such technologies. Pretty much anything which is hand held would be allowed. Automatic weapons? Okay. Explosive fragmentation rounds? Okay. RPGs? Okay. And so on.

But, all this is merely philosophy. What is in fact happening in the real world is quite different. The Constitution has not been interpreted in an "originalist" manner and never will. So, while we are here arguing theory, the simple brute fact is that this theory shall remain just that.

No limits that could be imposed by federal law, anyway. If we're going by "originalism", there's ample evidence that the entire Bill of Rights was understood to only apply to the federal government (states had and have their own bills of rights). And even if the Constitution as it's currently written were to be somehow impractical for modern purposes, we have an amendment process.

In general the federal government trumps state/local governments. Here's a good example:
So how does an "originalist" such as yourself reconcile this?


This is a fairly radical position, I believe. You're basically proposing that any new federal laws should be Constitutional amendments.

But, this diverts from the debate at hand. We're debating whether or not the Constitution is in fact a "living" document and not whether or not it should be a "living" document. I submit that empirically the Constitution is "living", that new interpretations have been made over the course of 200+ years of history.

What the proponents of the Second Amendment don’t understand is that the ruling in Parker does not raise a justiciable challenge to United States v. Miller. To the contrary, the D.C. Court of Appeals went out of its way to reconcile its ruling with the decision of the Supreme Court in Miller. Furthermore, the respondent (Heller) would be precluded from raising a challenge to the Miller decision for the first time on appeal. The Supreme Court will not overturn its prior decision, which is the controlling precedent; and what we will see is a decision governing issues that Miller did not address directly, which can only lead to more regulation lessening our rights.

If what we want is less regulation, then the last thing we want to do is make a federal case out of it, as experience has shown that Congress is obsessed with regulating everything. Here, the gun lobby (and the NRA) have misrepresented us, for in attempting to make gun ownership an “individual” right under the Second Amendment they have made the rights of all gun owners less secure. The way to go is not the Second Amendment - that was intended to be a limitation on the power of Congress over state militias under Article I, Section 8 of the Constitution, and not a grant of right to individual ownership of firearms - the way to go is as individual rights retained by the people under the Ninth Amendment, and powers reserved to the several states or the people under the Tenth Amendment. At least at the state level we will have some say about out rights, which we won't have in the Congress. It is time that gun owners stop beating their heads against the wall and start using their brains.

The Constitution vests Congress with exclusive jurisdiction over the District. Therefore, it could be argued that the DC municipal government merely exercises powers delegated by Congress. Not so with state governments.


No, all that would be needed would be a constitutional amendment granting expanded powers to Congress, if such a thing were actually necessary and could garner the required support.


Coming up with new "interpretations" of the Constitution doesn't change its meaning. All it does is provide an excuse not to obey it.

The fact that one may disagree with some of the decisions of the Supreme Court is hardly excuse to not obey the law. The Supreme Court (and lower federal courts) have the authority to interpret the Constitution; indeed, it would be impossible for the judiciary to exercise its jurisdiction in deciding cases arising under the Constitution without interpreting what the constitutional provisions mean. To say that the Constitution means what the founding fathers intended it to mean is merely to beg the question.

Professor Tribe once told me that the Constitution doesn’t mean what it says. I thought he was joking at the time; but after the decision of the Supreme Court in Bush v. Gore, I have come to think that he meant it.

There is something to this. As a practical matter, the definition of arms has changed. Originally, there was no meaningful difference between the weaponry used by soldiers, and the weaponry used for hunting by the public. Also, hunting was a significant industry of the time, and a great many depended on hunting as a food source. Self-defense would be a secondary concern, though still significant.

Modern military weaponry, of course, is very much different from civilian hunting weapons, or weapons intended for self-defense. It strikes me that generally speaking, the only significant reason to own a firearm today is self defense. While plenty of people hunt for meat, it is far from common or necessary. Even police departments do not generally require the level of firepower available to a regular soldier. SWAT teams may have fully-automatic weapons, but they don't have anti-tank missiles.

In terms of arms as a balwark against tyranny, I'm pretty sure those days are over. I used to worry about this, but it occurs to me that a transgression serious enough to require a righteous, violent overthrow of the government would no doubt split the military as well, and therefore their resources. I can't imagine what those transgressions would have to be, either, short of an extremely obviously unconstitutional power grab by a branch of government that precluded legal correction (vote them out of office, impeachment, etc.)

So I think the present interpretation is just about right. I shudder to think of the consequences of having anti-tank missiles available commercially, or even to police, which is what a strict reading of the 2nd amendment would seem to demand. At the same time, I don't believe outright bans are effective. I think the three-tiered system of civilian, police, and military weapons, with appropriate controls at the high end, and few to no controls at the lower end, is about the best balance we can hope for. I think it is appropriate for a criminal to be denied access to any firearms as part of their punishment (if only to punish them more, if they are found in possesion of one,) but to deny civilian weaponry to a citizen, in the absence of crime, strikes me as patently wrong.

An “originalist” would not interpret the Second Amendment as protecting an individual right to have a gun. Here are some quotes from two prominent originalists on the Second Amendment:

"If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment... This has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud', on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."
- Warren Burger, former U.S. Supreme Court Chief Justice, Parade Magazine (January 14, 1990).
. . .

"[The] National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is the people's right to bear arms in a militia. The NRA thinks it protects their right to have Teflon-coated bullets. But that's not the original understanding.”
- Robert H. Bork, Distinguished Lecture Series, UC Irvine, (March14, 1989).

We should beware of what we wish, for we may get much more than we would want. The gun enthusiasts that want their rights protected under the Second Amendment may - to their dismay - only find themselves the more “well regulated”.

Again I iterate the point that has yet to be refuted. If that is what the Founders meant by the 2nd Amendment, right to carry guns in a militia, then WHY was that not the way that it was enforced. Is it not logical to assume that directly following the passage of the Amendment that the people at the time the law was passed would have the best understanding of it? The fact is that throughout the 19th century and early 20th century, the 2nd Amendment was universally recognized as an individual right. The new interpretations of the Amendment have not come about until recently. And i theorize that it is directly correlated to the increasing lethality of firearms.

Indeed i agree with lederuvdapac on this. The 2nd Amendment clearly meant that they wanted people (common man) to have access to weapons (such as the Swiss model) at home if the government would become dictatorial or somesuch.


Today, it is used as an excuse for americans to have weapons, as this seem to be an important cultural, erh, thing. I would agree that this is most likely why this "new" interpretation has come about, and is now saying (because of the large amount of gun related crime in the country) that its for a specific secular reason, and should be related to that, in this case, a separate "militia".


Nemo, you are not seriously saying that the amendment is specifically for bear arms in a militia? Remember the time when this was written? Think about the reason given for this specific amendment? Are only the militia to throw a dangerous government? Does not the entire populace of the country become the militia?

At the time of the Constitutional Convention, there was no standing army, but only state militias. In Federalist No. 46, James Madison (who drafted the Second Amendment) argued that state-run militias would counterbalance the power of a standing federal army; and for this reason the Second Amendment was adopted and ratified to insure that every state would have the ability to maintain its own militia as a matter of state sovereignty. In this, the Second Amendment was a limitation on the power of Congress over the state militias under Art. I, § 8 of the Constitution. The important point to keep in mind is that the Second Amendment does not bar regulation of the possession, sale or transportation of firearms. (See Post# 72, supra.) That is why the Second Amendment is a loser for claiming an individual right to own a gun; it opens the door to even more regulation.

Not quite, since there are some on this very board who disagree quite strongly with that view.



The definition of arms has not changed at all. The only thing that's changed is the number of real-world examples of things that fit that definition. And the 2nd Amendment had nothing at all to do with hunting.


If we assume that what you're saying is true (even though I'd dispute parts of it, but that's getting somewhat off-topic), then you'd have grounds for a constitutional amendment. But the Constitution itself does not allow for ignoring or watering down whatever parts some people might find inconvenient in the absence of an amendment. Otherwise, it's not really serving its purpose.



If Congress has the power to regulate (i.e., restrict) the possession of firearms, then it indeed has the power to restrict the ability of states to effectively maintain militias. That's exactly why the 2nd Amendment was worded the way it was. There's no other way to read it.

Don't you see that it is not how you (or I) read it, it is how the Supreme Court reads it; it has already read it the other way, and if the court hears this case, it will only read more regulation into it.

This is an entirely different argument. I am making a philosophical argument about the Constitution, in this case the 2nd Amendment. Saying "well the SCOTUS interprets it this way so there" is a legalistic argument and not what I am talking about. Obviously the SCOTUS has the final say legalistically, but that does not mean that they maintain the same moral or philosophical high ground.

What does morals, or philosophy, have to do with it?

The Justices of the Supreme Court are men, just like you and me. That means that they are no infallible. Saying "well the SCOTUS says this, so thats the end of the argument" is meaningless to me. Just because they are justices does not mean that their interpretations are the correct ones. So saying:



is not a good argument to me. I believe that the SCOTUS is wrong.

Well, then it may come as a surprise to you to learn that our law is not based on morals. What do you mean by "morals"? When you start talking about morals, the next question inevitably is: Who's morals? Is everything to be ordered according to your morals?

You are misconstruing. I am saying that the SCOTUS does not have a moral authority over the US Constitution, only a legalistic one. Thus, their decisions and interpretations are up for debate.

Is the Constitution of the United States a living document? Why or why not?


That is a point of interpretation in part. In practice, it clearly has been conceived as a living document. Even for strict constructionists, it allows for amendments to keep the document evolving.

I believe the living document interpretation of the Constitution has been a service to our country and one of the reasons it has survived as a governing document for a successful country for such a long time.

Should we leave all of the departments and offices of the Federal Government as is, or shall we work to limit these offices?

I am not sure whether any federal departments need to be placed under judicial review and declared unconstitutional but I am open to the concept. Every new department created imho strengthens the power of a dangerously powerful executive branch.

I would like to see the American people look at streamlining and reducing the scope of the federal government where it is practical. We all probably have our preferred areas to hatchet, but as stated in the previous area, if we remain in the era of large government, I think it is more democratic to place these agencies under the control of the democratic process or our legislators than have the ability of the executive to handpick loyalists to support executive policy across the board.

No. Morals have nothing to do with it. It is the Supreme Court that is the final arbiter of the issue; and there is nothing left to debate but empty nothings.

If I'm tracking you correctly, and all arms, regardless of lethality or practical utility, are covered by this, then the extreme case would be an individual in possesion of a thermonuclear or biological weapon capable of destroying an entire nation.

I'm not trying to be a smart@ss. I just want to understand the depth of your position.

If you accept that some arms must be regulated, then the 2nd amend doesn't apply to all arms universally, and we need to determine the point where it goes from ok to not ok, depending on context. It seems to me like that is what the civilian, police, military model does, with generally good results.

P.S. And if it is ok for me have a nuke, then anyone with family in Michigan should call to say goodbye (that was the smart@ss.)

Yes but the federal constitution falls on all American citizens, which by know means is the definitive answer. None the less U.S citizens dependent on orientation are either subjects of citizens under the scope or influence of the federal united states government. State constitutions are a real thing but in real life federal holds higher priority in regards to final calls or overall legal frameworks. Its just a moot point to mention that like the ills of communism or related governmental philosophies the people and each individual of it does not escape the realties of any organized social system her or she occupies. So as some posters above are saying, such is why we have guns, to gun laws to written language and so on. So in short order the federal government has various pathways to legislate down to the states and so on.

As a side note state law on weapons can differ to a good extent, which I find in accordance with state constitutions and rights generated by such for use in governing the masses. So in reality I would say the constitution typically reflects the people behind it. I seriously doubt pioneers of a new culture if you can imagine such would really try to reduce the constitution to some mere state of being static giving the dynamic realities of such an environment. I think such is vivid in such a document really in that the wording reflects the simple ability to change so much giving the idea of democracy and liberty.

Quite alright, I didn't interpret your comment as being a wisecrack. (besides, given your last sentence, I don't think I'd want to get on your bad side anyway )

Anyway, to seriously answer your point, here I'd have to quote from Thomas Jefferson, who wrote much more clearly than I do:

"A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means."

So as it is with your nuke example, if there seriously was a danger of just some random person acquiring one and destroying millions of lives in a single stroke, then 2nd Amendment or no 2nd Amendment, someone would have to prevent him from being able to do so. But that doesn't change the fact that "arms" still means "arms". The definition of a word doesn't change with necessity.

That being said, I don't think the situation is as severe as it may seem. In the original understanding, the Bill of Rights only applies to the federal government, so states would still be free to prohibit their citizens from owning nukes. Not that I'd necessarily be averse to a constitutional amendment giving Congress the power to regulate possession and use of nuclear technology, but I think we'd still be reasonably safe with the Constitution as it currently is.

I have usually considered myself a strict constructionist, but I must answer both yes and no. While I do not think that we should tamper with the original meaning of the Founding Fathers, it was designed to be amended. I am thankful that our Forefathers had the foresight to realize that change would become necessary in the future. I am personally sorry that Benjamin Rush never managed to get freedom for medical decisions added to the original. Oh, well, I will save that for when I can start a topic.

That being said, I tend to agree with this part of what Kimpossible said.





Blackstone, thank you for this quote. I will be adding it to my collection. I hadn't read it before.

Oh, I almost forgot the 2nd part. Yes, I think most federal departments should be eliminated and left up to the states. However, I can hardly imagine it really happening.

So an air force isn't an air force as long as you put "army" on the wings? Whether it's the marines or air force, isn't it a matter of semantics here? Couldn't we agree that both of those branches of service fall under the necessary and proper clause? In other words, they are necessary and proper to deffend us in time of war?

“Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, - nonsense upon stilts.”
- Jeremy Bentham, Anarchical Fallacies (1816).

If this is true, how do you explain the disgust many feel when people's "rights" are violated? For instance, the previous government in Iraq did not grant its citizens many rights; since the Iraqi citizens dont have any rights, on what grounds can they claim that they should be given the "right" to vote, to freedom of speech, etc?

Many people decried the Iraqi government as denying rights to its people. But how can those rights be denied if they were never granted in the first place? To me, the logical answer is that there are certain, universal rights that all people have, irrespective of regime or nation. If there's no such thing as universal rights (which I would say are not the same as natural rights), then international actors (NGOs, and governments) have no business asking rights-abusing governments to stop, because it is the government that grants rights to its people.

The idea of so-called natural rights is paradoxical. See Jeremy Bentham, Introduction to the Principles of Morals and Legislation (1789); also, Anarchical Fallacies (1816). Real rights don’t exist in a vacuum; but only within the framework of established social structure subject to the rule of law. It is the law that defines our rights, in the absence of which rights would be no more than a scrambling possession with but little likelihood of lasting beyond the next to challenge the claim by force. How much greater are rights in society, and the more so for their guaranty by the social contract that is our Constitution. No, the law is the only means by which real rights may be secured. Beyond the law lies only the uncertainty of uncivilized life where there is no society, where every man is a law unto himself; and life, as Hobbes put it, is “solitary, poor, nasty, brutish, and short.” Thomas Hobbes, Leviathan (1660).

Again, if this is true, then why would people feel that their rights are violated? Or that they have a claim to rights that are not set down in law? My example of authoritarian governments still stands: if the government does not allow its citizens certain rights, what grounds do the citizens have to try and obtain certain rights?

I disagree to a certain extent that rights only exist within the structure of society...If there's no society, who is there to deny or grant me a right to speech? I have the right to speak and say what I want, regardless of whether or not a society exists around me, regardless of political regime. I do agree that some rights can only seem to exist within the structure of society (2nd generation rights to healthcare are an obvious example); however, if rights only existed within societies, and are only granted by governments, then international groups--or even citizens living under a repressive regime--cannot say a government is violating anyone's rights. If torture is legal in one country, then people being tortured in that country have no right to personal security...How is that not paradoxical?

There can be no meaningful rights but within the structure of organized society subject to the rule of law. Indeed, there can be no society without the law; it is the very fabric of social structure. It is, like the air we breathe, pervasive and essential, affecting every aspect of human relationships and endeavors. Beyond the law, there is only savagery. Bentham was right: “Natural rights is nonsense.” It is the law that defines our rights, in the absence of which there are no real rights at all.

That doesn't answer my question. How hard is this? If governments grant rights, why do we demand that rights-abusing government "grant" rights to their citizens? What does it matter to anyone if some people live under a repressive regime? Why do people demand their rights be recognized?

Even the Founders could grasp this simple concept, as Jefferson aptly pointed out that we have "inalienable rights."

Your evasion of this one fundamental question gives your argument little weight. You can claim "natural rights are nonsense" but you've hardly proved that people don't have natural rights.

No doubt it will be a surprise for you to learn that Thomas Jefferson’s ideas about rights were not adopted by the framers of our Constitution. Thomas Jefferson wrote in the 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; that, to secure these Rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed . . .” The framework of our government, however, did not incorporate the ideas expressed by Jefferson in the Declaration of Independence. The intoxicating ideas of Rousseau and Locke that Jefferson so admired, and that inspired our revolution (and that of France as well), gave way to a more sober expression of our rights and freedoms in the Constitution and Bill of Rights. The founding fathers, the framers of our Constitution and Bill of Rights, created a nation of laws and not men; which represents a compromise between the rights of individuals and the sovereign power of the state. All men are not created equal - they are equal under the law; and the rights to “Life, Liberty and the pursuit of Happiness” may be unalienable, but they are not absolute. In this compromise - this social contract that is our Constitution - rests the security for our individual rights and liberty.

You will learn for yourself the true nature of your rights when you have need to enforce them. Natural rights are illusory - like God-given rights, they are only good in heaven; in the real world of man’s making, one need have recourse to the law.