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Lawyers, Guns
and Money
Picture of chellim1
posted
April 15, 2018
How to Defend the Second Amendment
By Robert Curry

Recently, there has been quite a lot written in defense of the Second Amendment. Some of those defenses have been quite good, but what is most remarkable to me is that I have not found one that makes the case as the American Founders would have. Perhaps some did, and I simply failed to find them.

On one side of the debate, there is the left. The Founders' understanding is certainly not to be found there. The left rejects the thinking of the Founders and is determined to take the Founders' republic down. On the other side, the defenders of the Founders do not even use the language of the Founders – and do not seem to realize how far afield they have wandered. James Madison, who drafted the Second Amendment, would be astonished by this strange post-constitutional, even post-American, debate.

How would any of the Founders have made the case for the Second Amendment? Why, in terms of unalienable rights, of course. The concept of unalienable rights is the key to understanding the American Founding. The Declaration of Independence declared that we have unalienable rights. It went on to declare that securing those rights is the very purpose of government – "to secure these rights, Governments are instituted among Men." According to the Declaration, any government that deviates from the noble purpose of securing those rights is illegitimate.

John Paul Stevens – how astonishing that this man once served on the Supreme Court, charged with upholding the Constitution! – and others have called for repealing the Second Amendment. But according to the Founders, repealing the Second Amendment would not get rid of our unalienable right to keep and bear arms. No action by government can overturn an unalienable right. An unalienable right remains no matter how a government moves against it. That's what "unalienable" means. Repealing the Second Amendment would not in put an end to the right it was designed to protect; it would only put an end to the government's claim to legitimacy.

To understand the Second Amendment as the Founders did, we need to remember what the Constitution does. It defines how the federal government is to function – and the very purpose of its design is to secure our unalienable rights. Consequently, unalienable rights are senior to, on a higher level than, the Constitution and, of course, any amendment to the Constitution. The sequence in logic goes like this:

The Constitution is all about defining and dispersing the powers of government. It is fundamentally a design for limiting the federal government, limiting it precisely in order to secure our unalienable rights from attempts by people in government to violate or even infringe upon those rights. In the words of Thomas Jefferson, "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

In fact, the Founders' understanding of unalienable rights caused Madison and other Founders to oppose a bill of rights initially. Here is Hamilton in Federalist 84:

It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of [royal] prerogative in favour of privilege[.] ... Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations[.] ... For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

For Madison and Hamilton, a bill of rights, traditionally a concession of privileges wrested from the sovereign political power, had no place in the American Constitution. (When Madison eventually realized that the public's demand for a bill of rights made it a political necessity, he took responsibility for drafting it and made certain that it included the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth was intended to insure that enumerating some rights would not have the effect of narrowing our understanding of the vast range of our unalienable rights.

Now, let's consider the First Amendment before moving on to the Second. Please notice how it begins: Congress shall make no law ... abridging the freedom of speech, or of the press[.]" The very first words of the very first amendment are "Congress shall make no law." No rights are here granted to the citizen. They cannot be because those rights are unalienable, that is, already possessed by the citizen.

The First Amendment follows the logic of the Constitution as a whole; it restricts what the federal government – in this case, Congress – can do.

So does the Second: "the right of the people to keep and bear Arms, shall not be infringed." That "shall not be infringed" is strong language and perfectly clear. To infringe is to trespass, to intrude, to encroach. "Shall not be infringed" in plain language means "No Trespassing." And it is the government that is warned to keep out.

George Washington wrote that the American Founding occurred during a time "when the rights of mankind were better understood and more clearly defined than at any former period." Our current debate about the Second Amendment makes it all too clear that that better understanding and clearer definition of our rights has been slip-sliding away during the period in which you and I live.

Robert Curry serves on the Board of Directors of the Claremont Institute and on the Board of Distinguished Advisers of the Ronald Reagan Center for Freedom and Understanding. He is the author of Common Sense Nation: Unlocking the Forgotten Power of the American Idea

https://www.americanthinker.co...econd_amendment.html


"To ban guns because criminals use them is to tell the law abiding that their rights depend not on their own conduct but, on the conduct of the guilty and the lawless."
- Lysander Spooner

"The United States government is the largest criminal enterprise on earth."
-rduckwor
 
Posts: 14070 | Location: St. Louis, MO | Registered: April 03, 2009Reply With QuoteReport This Post
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The Founders had first-hand experience to base their beliefs and actions to protect the bearing of arms by the civil populace. British General Gage tried that once and look what came of his action; same thing will happen again if tried again. The legitimacy of the government would be revoked should that be attempted.


---------------------
"Sometimes I wonder whether the world is being run by smart people who are putting us on, or by imbeciles who really mean it." — Mark Twain
 
Posts: 1433 | Location: Falls of the Ohio River, Kain-tuk-e | Registered: January 13, 2005Reply With QuoteReport This Post
Wait, what?
Picture of gearhounds
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I make it clear in any such conversations that the second amendment does not really address self defense. Or sport shooting. Or hunting. It is about citizens having the power and ability to protect themselves from government overreach.

I am appalled at the number of people I meet that try to tell me that gun control is good because the government knows what is best for the people.




Proudly deplorable
 
Posts: 8249 | Location: Martinsburg WV | Registered: April 02, 2011Reply With QuoteReport This Post
I believe in the
principle of
Due Process
Picture of JALLEN
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Think how many will say this talk about the creator is superstitious nonsense.




Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown
 
Posts: 46764 | Location: Texas hill country | Registered: July 04, 2005Reply With QuoteReport This Post
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Picture of jbcummings
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quote:
Originally posted by JALLEN:
Think how many will say this talk about the creator is superstitious nonsense.


Wouldn’t have heard that from the founders, heh?


———-
Do not meddle in the affairs of wizards, for thou art crunchy and taste good with catsup.
 
Posts: 3822 | Location: DFW | Registered: May 21, 2012Reply With QuoteReport This Post
Glorious SPAM!
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quote:
Think how many will say this talk about the creator is superstitious nonsense.


Especially up in NYC. They might even call it "creepy".
 
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I believe in the
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Picture of JALLEN
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quote:
Originally posted by jbcummings:
quote:
Originally posted by JALLEN:
Think how many will say this talk about the creator is superstitious nonsense.


Wouldn’t have heard that from the founders, heh?


Back then, that kind of talk might have resulted in accelerating the inevitable, heh?




Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown
 
Posts: 46764 | Location: Texas hill country | Registered: July 04, 2005Reply With QuoteReport This Post
Rumors of my death
are greatly exaggerated
Picture of coloradohunter44
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A most excellent article. I shall refer others to it. Thanks for sharing.



"Someday I hope to be half the man my bird-dog thinks I am."


 
Posts: 8908 | Location: Colorado  | Registered: July 23, 2009Reply With QuoteReport This Post
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I always ensure that any conversation that surrounds the 2A, includes references to all of the other rights/amendments. Most people get 2A religion real quick when you:

-Say that anyone that practices a religion will have to get a background check and a license.
-Say that anyone that wishes to post on ANY internet forum has to get a "universal" background check and a 1st Amendment license.
-Say that anyone that wishes to NOT have their home unreasonably searched, and property seized, get a background check and a license.
-Say that anyone that wishes to vote has to take a class on the Constitution, take a test, a background check, and a voting license.
 
Posts: 1784 | Location: KY | Registered: April 20, 2005Reply With QuoteReport This Post
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Picture of bigdeal
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quote:
But according to the Founders, repealing the Second Amendment would not get rid of our unalienable right to keep and bear arms. No action by government can overturn an unalienable right. An unalienable right remains no matter how a government moves against it. That's what "unalienable" means. Repealing the Second Amendment would not in put an end to the right it was designed to protect; it would only put an end to the government's claim to legitimacy.
An absolutely perfect summation and rebuttal for any liberal who views government as their deity. When viewed through this prism (which is the 'only' one we should view this issue through), it could appropriately be said that 'any' gun control should be summarily ignored and rejected by the populace as an unconstitutional infringement of an unalienable right.


-----------------------------
Guns are awesome because they shoot solid lead freedom. Every man should have several guns. And several dogs, because a man with a cat is a woman. Kurt Schlichter
 
Posts: 26167 | Location: Orlando, FL | Registered: April 30, 2006Reply With QuoteReport This Post
Wait, what?
Picture of gearhounds
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quote:
Originally posted by bigdeal:
quote:
But according to the Founders, repealing the Second Amendment would not get rid of our unalienable right to keep and bear arms. No action by government can overturn an unalienable right. An unalienable right remains no matter how a government moves against it. That's what "unalienable" means. Repealing the Second Amendment would not in put an end to the right it was designed to protect; it would only put an end to the government's claim to legitimacy.
An absolutely perfect summation and rebuttal for any liberal who views government as their deity. When viewed through this prism (which is the 'only' one we should view this issue through), it could appropriately be said that 'any' gun control should be summarily ignored and rejected by the populace as an unconstitutional infringement of an unalienable right.

I have had this conversation, or something approaching it. I make it clear that they can decide to give up their own right to keep and bear arms, but have no right to expect anyone else to do the same.




Proudly deplorable
 
Posts: 8249 | Location: Martinsburg WV | Registered: April 02, 2011Reply With QuoteReport This Post
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I think a lot of it is related to Thomas Paine who wrote: Common Sense... which to this day if you take in consideration population verses sales is still the most purchased book in America.

Later in life he wrote this:
“The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside… Horrid mischief would ensue were one half the world deprived of the use of them…” Writings of Thomas Paine at 56"

(I saw the above quote a few weeks ago somewhere on this forum posted by another member here and have taken the liberty of using it myself.)
 
Posts: 326 | Location: Greenville, SC | Registered: January 30, 2017Reply With QuoteReport This Post
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For so many the first thought when thinking “Bill of Rights” is that “This says what the government will allow me to do”

They miss entirely the concept of inalienable.
 
Posts: 1222 | Location: south central Pennsylvania | Registered: November 05, 2008Reply With QuoteReport This Post
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quote:
Originally posted by Chris42:
For so many the first thought when thinking “Bill of Rights” is that “This says what the government will allow me to do”

They miss entirely the concept of inalienable.


They miss the entire concept of what the Constitution is. It is the rules that limit the scope of government.
No where is it intended to limit individuals. A very difficult concept for some.
 
Posts: 434 | Location: North East Jersey | Registered: August 16, 2009Reply With QuoteReport This Post
delicately calloused
Picture of darthfuster
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I believe then after Obama failed to enact gun control, the gun grabbers realized they needed to change the culture first. So now we see gradual steps and nuanced reporting designed to change attitude toward guns the idea is Progressive in nature that we take 1000 small steps as opposed to one big step gets us to the same place. It takes longer, but there is less resistance. Ultimately we end in the same disarm state and that's all that matters.
I think if we want to defend the Second Amendment we need to resist the culture change bye proselytizing to the youth. I think we need to evangelize to more than just our youth I think we need to appeal to as many youth as possible, and others. This is the way we resist attacks on the Second Amendment.

Sorry for the typos and and grammar. I'm using talk to text while otherwise occupied



...but resist, we much. We must, and we will much, about that, be committed. Al Sharpton 2011
 
Posts: 23595 | Location: Highland, Ut. | Registered: May 07, 2008Reply With QuoteReport This Post
Political Cynic
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quote:
Originally posted by Chris42:
For so many the first thought when thinking “Bill of Rights” is that “This says what the government will allow me to do”

They miss entirely the concept of inalienable.


what it shows is that they are utterly lacking in any idea of the history of this country
too bad you couldn't strip these people of their citizenship and require a course and exam to get it back

but in this country, there's no penalty for being stupid and clueless



Participating in a gun buy back program because you think criminals have too many guns is like having yourself castrated because you think your neighbor has too many kids

"I'm only myself when I have a guitar in my hands." - George Harrison


 
Posts: 46702 | Location: Arizona | Registered: January 16, 2002Reply With QuoteReport This Post
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Picture of cjevans
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quote:
Originally posted by nhtagmember:
quote:
Originally posted by Chris42:
For so many the first thought when thinking “Bill of Rights” is that “This says what the government will allow me to do”

They miss entirely the concept of inalienable.


what it shows is that they are utterly lacking in any idea of the history of this country
too bad you couldn't strip these people of their citizenship and require a course and exam to get it back

but in this country, there's no penalty for being stupid and clueless


- Say that anyone that practices stupidity will have to get a background check and a license.



We are all born ignorant, but one must work hard to remain stupid." ~ Benjamin Franklin.

SIGForum: the island of reality in an ocean of diarrhoea.
 
Posts: 1244 | Location: The home of AFL | Registered: February 20, 2012Reply With QuoteReport This Post
I believe in the
principle of
Due Process
Picture of JALLEN
posted Hide Post
quote:
Originally posted by cjevans:
quote:
Originally posted by nhtagmember:
quote:
Originally posted by Chris42:
For so many the first thought when thinking “Bill of Rights” is that “This says what the government will allow me to do”

They miss entirely the concept of inalienable.


what it shows is that they are utterly lacking in any idea of the history of this country
too bad you couldn't strip these people of their citizenship and require a course and exam to get it back

but in this country, there's no penalty for being stupid and clueless


- Say that anyone that practices stupidity will have to get a background check and a license.



The licensing fees will take care of the national debt!




Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown
 
Posts: 46764 | Location: Texas hill country | Registered: July 04, 2005Reply With QuoteReport This Post
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Picture of bigdeal
posted Hide Post
quote:
Originally posted by nhtagmember:
quote:
Originally posted by Chris42:
For so many the first thought when thinking “Bill of Rights” is that “This says what the government will allow me to do”

They miss entirely the concept of inalienable.


what it shows is that they are utterly lacking in any idea of the history of this country
too bad you couldn't strip these people of their citizenship and require a course and exam to get it back

but in this country, there's no penalty for being stupid and clueless
You're of course correct in your assertions. But the more important question, and the one that is deserving of a solution is, "Why"? Why are multiple generations now completely clueless when it comes to their history and rights? The answer, liberal/progressive culture has so destroyed public education that students are being taught little of nothing of value any longer, and as such, are far more open to being converted to the concept that their rights emanate from government. Additionally, when youth place no value whatsoever on religion, its a bit hard to conceive of natural rights that emanate from a creator. As I see it, those are the root causes we need to to address, and it won't be easy to cure them, but without curing them, we find ourselves fighting an uphill battle with dwindling troops.


-----------------------------
Guns are awesome because they shoot solid lead freedom. Every man should have several guns. And several dogs, because a man with a cat is a woman. Kurt Schlichter
 
Posts: 26167 | Location: Orlando, FL | Registered: April 30, 2006Reply With QuoteReport This Post
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