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The Second Amendment, and overthrowing the government

Father Heathen

Veteran Member
Of course.
It works better, so it is better.

A constitution is like putting wheels on a sledge, to go across snow.

So having a legally binding document that guarantees a citizen's rights and freedoms is a bad thing? I don't suppose you could provide a logically coherent explanation?
 

dmgdnooc

Active Member
Wait, so an action is unconstitutional except when done by means of an armed rebellion?



By Union, do you mean the British Union or the United States Union?

Yes, that's what I have gotten from the readings.
Once having become a member State there is no legislative means by which that State can subsequently secede from the USA. The USA is one nation, indivisible.
 
However, the right of armed rebellion is implicit through the very nature of the US's creation.
It appears that only a successful armed rebellion against the enforced union of the US would be legal.
 
Maybe you can point me to further readings, I would appreciate it.

 

9-10ths_Penguin

1/10 Subway Stalinist
Premium Member
No, it does not... it does not necessarily endorse the interpretation I've given, but that is not the same thing as speaking against it.
The Second Amendment states that its purpose is:

- to make provision for a "well-regulated militia"
- by extension, to protect "the security of a free state"

Does having an unregulated armed citizenry help the cause of a well-regulated militia?

Does having an armed citizenry help or hinder the security of the state?


Keeping and bearing arms are the rights, which cannot be denied without due process.
I read it somewhat differently: I think it says, effectively, "the people have some sort of pre-existing or innate right in regards to keeping and bearing arms (the exact nature of which this document does not specify). That right will not be reduced from this pre-existing/innate level."

Of course, I never meant to suggest that it gave you the right to do anything with a gun, only, as the Supreme Court said, it gives you the right to own guns, and to use them lawfully.
But what's "lawfully"? That's the big question.

The right to "keep and bear arms" isn't absolute, is it? You can't keep an attack helicopter, for instance... even though one would be very handy for a militia. You also can't bear arms in a courthouse or a school. You can "infringe" on a person's right to bear arms with regard to carrying a concealed weapon by requiring him to get a government permit.

So what exactly is the "right" that the second amendment protects? As the above examples illustrate, it's not a blanket right to keep and bear arms in every circumstance; "the right to keep and bear arms" it refers to must be something less than that... but what is it?

Providing for a well armed citizen base from which to call the militia.
... which would also suggest other things, like mandatory firearms safety training, and mandatory marksmanship drills. After all, this would improve the quality of the potential militia members for their purpose, right?

And the point I was trying to emphasize is that logically also must include the actual militia. If the whole point of the law is the militia, and if it includes "potential militiamen" on that basis, then it must also include the actual militiamen, right?
 

Terrywoodenpic

Oldest Heretic
In what way does it work better to not have a constitution?

BTW - from what I gather, what you say isn't exactly true. It's not that Britain doesn't have a constitution; it's that its constitution is formed from various parts of multiple laws. You may not have one document entitled "the British Constitution", but that doesn't mean you don't have one.


How do you figure?

IMO, a constitution is simply the highest law in the land. If you're going to resolve conflicts between laws, you're going to need some sort of hierarchy to determine which law should take precedence. Having a hierarchy implies that you're going to be some sort of highest law.

BTW - it seems strange to me that a country that considers constitutions useless or counter-productive would impose constitutions on so many of its former colonies.

A written constitution is in most regards Law set in stone.
British laws can always be over ridden either by parliament or in the supreme court.Or indeed by referendum. Mostly this can be done with a simple majority.
In the case of a referendum this can be set in the bill that sets them in motion.

Not having a written constitution allows a Government to take actions for which they have a majority.

We never impose constitutions on former colonies, however they usually ask for one.
and implement it themselves. It can not be imposed.
Much the same way Britain wrote the West German Parliamentary and election laws and trade union laws after the war. (these are far better than our own)

We do not have a hierarchy of laws, new laws must be written in ways that do not conflict with existing laws. If an error is made in drafting, it would fall to the supreme court to decide on resolving them.
 

Terrywoodenpic

Oldest Heretic
Originally Posted by Terrywoodenpic
A constitution is like putting wheels on a sledge, to go across snow.


A constitution is like putting wheels on a sledge, to go across snow.
How do you figure?

Both are unnecessary additions that impede progress.

In the case of a constitution who wants to be bound by the thoughts and
prejudices of ancient forebears. Old does not mean better.
 

9-10ths_Penguin

1/10 Subway Stalinist
Premium Member
A written constitution is in most regards Law set in stone.
No, it's not. Every constitution I've ever heard of has a mechanism for amending it.

Even the American constitution, with the greatest hurdle I know of for amending a country's constitution, has had 12 amendments in the last century.

The Canadian constitution was only repatriated from Britain in 1982, but since then, it's been amended 10 times itself.

British laws can always be over ridden either by parliament or in the supreme court.Or indeed by referendum. Mostly this can be done with a simple majority.
In the case of a referendum this can be set in the bill that sets them in motion.
And how exactly would a single document that spells all this out be an impediment to amending it?

You're talking about the test for amendment, not the form of the constitution. The mere fact that it's all written down in one place doesn't mean it's necessarily harder to change.

Not having a written constitution allows a Government to take actions for which they have a majority.
But is this good or bad?

Your own parliamentary system (and mind) recognizes that sometimes more than a simple majority is necessary when it comes to serious matters of law.

This is why you have a two-chamber system. It's why every bill requires royal assent. The more important the matter, the more it deserves re-examination and careful reflection. A constitution with a significant hurdle for amendment is one way to address this.

Things like habeas corpus are more important than next year's budget for the Export Credits Guarantee Department. I think it's completely justified that a stricter test needs to be met before one is changed than the other.

We never impose constitutions on former colonies, however they usually ask for one.
and implement it themselves. It can not be imposed.
I don't think you know much about Canadian history, then.

The British North America Act, i.e. the original constitution of Canada, was an act of British parliament. All amendments to the Canadian constitution were passed by the British parliament until 1949, and Canada didn't get full control over its constitution until 1982.

We do not have a hierarchy of laws, new laws must be written in ways that do not conflict with existing laws.
Then you do have a hierarchy: old trumps new.

If an error is made in drafting, it would fall to the supreme court to decide on resolving them.
And what basis do they use for their decision? One law will be struck down and one law will prevail... hence an implicit hierarchy.
 

9-10ths_Penguin

1/10 Subway Stalinist
Premium Member
Both are unnecessary additions that impede progress.

In the case of a constitution who wants to be bound by the thoughts and
prejudices of ancient forebears. Old does not mean better.
Ha! Do you realize that your own constitution includes the Act of Settlement, i.e. the document that forbids Catholics from being crowned monarch? So much for "the thoughts and prejudices of ancient forebears." ;)

And new does not necessarily mean better either. Having a codified constitution just says "these specific things are really important. Think really hard before you go and change them."

Frankly, there are a lot of matters of law where I want some sort of stringent test. I don't want fundamental rights to be used as a bargaining chip in some negotiation between parties in a minority government: "okay, we'll raise the voting age to 25 like you want if you support our budget"... do you think stuff like this is a good idea?

I think there are certain important, fundamental things that should be insulated from small changes in political sentiment, flash-in-the-pan movements that come and go quickly, and the quirks of the first-past-the-post voting system. I want there to be some mechanism that makes sure that the most populous provinces can't use the federal government as their plaything to the detriment of everyone else. These are good things, and I don't understand why you don't see this.
 

Terrywoodenpic

Oldest Heretic
Even Governments with massive majorities, like Tony Blair had, find it near impossible to change the basics. The members in parliament on all sides simply say no.
The house of lords can only hold up a bill, by sending it back three times, not prevent it becoming law.
The Queen has never refused to sign a law.

I do not know the Canadian situation. But I suspect its bipartisan nature make a constitution rather more important. Though I can not see the advantage of having to have an amendment passed, in order to change some dependant laws.

Old never trumps new, If they are irreconcilable the old is revised as part of the new law.
 
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Mister Emu

Emu Extraordinaire
Staff member
Premium Member
Does having an unregulated armed citizenry help the cause of a well-regulated militia?
Not particularly...

Does having an armed citizenry help or hinder the security of the state?
Yes.

But what's "lawfully"? That's the big question.
Indeed it is, and some places like to try to push the boundaries of regulation, others prefer more liberal approaches.

The right to "keep and bear arms" isn't absolute, is it?
No, none of our rights are.

"the right to keep and bear arms" it refers to must be something less than that... but what is it?
The right to keep and bear arms within reasonable restriction... just like the right to free speech is a right held within reasonable restriction.

... which would also suggest other things, like mandatory firearms safety training, and mandatory marksmanship drills. After all, this would improve the quality of the potential militia members for their purpose, right?
Free firearms safety training and marksmanship classes would be pretty nice to have, but it would have to be voluntary... well actually, making the former part of our schooling system, and thus mandatory, would probably be a good idea considering the saturation of firearms within our society.

And the point I was trying to emphasize is that logically also must include the actual militia. If the whole point of the law is the militia, and if it includes "potential militiamen" on that basis, then it must also include the actual militiamen, right?
Of course, the active members of the militia do not have their 2nd Amendment rights voided... I did not mean to imply that.
 

9-10ths_Penguin

1/10 Subway Stalinist
Premium Member
Even Governments with massive majorities, like Tony Blair had, find it near impossible to change the basics. The members in parliament on all sides simply say no.
The house of lords can only hold up a bill, by sending it back three times, not prevent it becoming law.
IOW, it's a mechanism to prevent rash decisions by allowing for a "cooling off" period. This is also one of the functions of a constitution, though with a stricter test because of the more important nature of the laws in question.

The Queen has never refused to sign a law.
This Queen, but it's been used in the past. And the fact that the Queen has the legal right to refuse a law likely means that Parliament wouldn't present her with a law they thought she would refuse to sign, right? Laws like this can create a "chill" on behaviour that would otherwise happen.

I do not know the Canadian situation. But I suspect its bipartisan nature make a constitution rather more important.
The UK doesn't have a "bipartisan nature"?

Though I can not see the advantage of having to have an amendment passed, in order to change some dependant laws.
Really?

You can't think of a single one of your rights that you consider so important that you'd demand more than a simple majority of your MPs to have it struck down?

Old never trumps new, If they are irreconcilable the old is revised as part of the new law.
IOW, the laws are reconciled so no conflict exists. This still doesn't explain what happens when a conflict does arise between two laws that are in force.

Occasionally, unforeseen conflicts between pieces of legislation do happen.
 

Mercy Not Sacrifice

Well-Known Member
Yes, that's what I have gotten from the readings.
Once having become a member State there is no legislative means by which that State can subsequently secede from the USA. The USA is one nation, indivisible.
 
However, the right of armed rebellion is implicit through the very nature of the US's creation.
It appears that only a successful armed rebellion against the enforced union of the US would be legal.
 
Maybe you can point me to further readings, I would appreciate it.


There's a statute in the Constitution that allows for violent insurrections?? I couldn't find it. Nearest match I came up with was this: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort" (Article III Section 3).
 

dmgdnooc

Active Member
The only right to armed rebellion is an 'implied' right.
The implication is rooted in the manner in which the USA came to be.
Exercising that right would be treasonous, but only up until the time when the rebellion was proven to be successful.
Once having been proven successful (by victorious force of arms) that treasonous action would then be proven to be a legitimate rebellion.
 
My point is that to avoid this paradoxical situation (which seems to owe more to the ideas of a Medieval 'Trial by Ordeal' than to reasonable jurisprudence) there should be a legislative means by which a State can secede from the Union (of the United States).
And until such a legislative mechanism is in place then armed rebellion is the only means available to a State that wishes to secede.
 
Now the right of armed rebellion is clearly not what the 2nd amendment sought to protect.
And this is confirmed by the 1916 Act that transformed the State Militias into the National Guards and transferred the Command of those units to the President.
 
The 2nd amendment was drafted in order to ensure that an armed Militia was available to protect the States from threats from without the US, not from within or from the Federal Government.
 
Again, I would appreciate further readings; but until then this is my current thinking on the matter.

 
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