James H. 
Member since Mar 8, 2010


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Re: “RE: Gunning Down the Constitution—Kevin Gutzman Defends

Logic Avenger,

Where you have written...
"I'm not about to let a bunch of well-intentioned dead men govern my moral life and I suggest we adopt this position as a matter of policy."
Well, fine...
Then let's just not HAVE a federal government at all. We might also do away with many of the state governments.
Let me ask you this...
Regardless of the time when it was written or who it was written by, do you agree with the idea that all just powers of government are derived from the consent of the governed? Consent, after all, is all that distinguishes love-making from rape. I submit to you that a government which governs by the consent of the governed is ALSO the distinction between a free society and one which lives under tyranny.
Having been ratified by covnentions composed of delegates elected by the people of each of the separate states some 220 years ago, the existing Constitution represents the foundation for a Federal Government which was derived from the consent of the governed. To the extent that we do not rise up to overthrow that government, it is presumed that we consent to it. Remove our right to keep and bear arms and that last proposition will be all the more doubtful. When the government is armed and we have all been disarmed, our silence in the face of any oppression it may offer will clearly represent our fear more than any genuine measure of consent.
As I think you'll have to agree, ...however silly they may have been otherwise, the men who drafted our Constitution WERE wise enough to appreciate that they could not foresee everything that would happen and, for that reason, they included a provision in the Constitution prescribing the manner in which it could be amended. By doing so, they hoped to help us avoid violent revolutions every time the Constitution and our form of government might need to be altered.
So - if you think the Constitution is "outdated" then do what you need to do to amend it.
Otherwise: if you think the WHOLE THING is silly ...fine ...let's just get rid of it. But if there is no constitution, then there is no legitimate basis whatsoever for the Federal Government itself. So, if there is no constitution, then there is no Congress to pass ANY laws that might infringe the right to keep and bear arms at all.
Of course, if we get rid of the Constitution and the Federal Government ...that will also save me a bundle in taxes this year ...and the year after that ...and the year after that (etc.,)!

James H.

Posted by James H. on March 9, 2010 at 7:43 PM

Re: “Gunning Down the Constitution

Please consider...
Where Congress under the Articles of Confederation had been a unicameral body whose members were appointed by the STATES, the CENTRAL argument in the Convention that drafted the Constitution was an argument over whether each state should continue to have the "equal" representation of one vote per state or whether there should be proportional representation whereby those states with larger populations would enjoy more representation.
There was also the question of WHO would elect or appoint the representatives and who, then, could truly be said to be 'represented'.
The outcome provided for a bi-cameral legislature composed of a House of Representatives and a Senate.
The membership that the people of each state were to enjoy in the House of Representatives was, however imperfectly ("3/5ths") based on the number of inhabitants (PEOPLE) in each state and the members were to be elected by the people and, so, to represent the people.
The membership of the Senate was to be composed of no more and no less than two Senators from each state who were to be appointed by the state legislatures and, therefore, to represent the state governments.
Therefore: to suggest that where the Bill of Rights was ONLY supposed to protect the states DESPITE the fact that the words "the people" and/or "person" or "persons" was consistently used throughout the amendments in the Bill of rights is, simply, absurd.

Posted by James H. on March 8, 2010 at 11:42 AM

Re: “Gunning Down the Constitution

I generally sympathize and agree with you on the subject of what you (I think inappropriately) refer to as "States' Rights": I prefer to think of this as the importance of restricting Federal Powers to those actually granted by the Constitution. Only PEOPLE have rights: States have powers only as granted to them by the governed for the protection of their rights.

Where you say that ""The Bill of Rights was never intended to be a list of individual rights but a list of things the Federal Government could not do to the states." ...I strongly disagree. The Second Amendment speaks of "the right OF THE PEOPLE to keep and bear arms." The term "THE PEOPLE" (or person(s)") is also employed in the first amendment, (the third speaks of "houses" which are owned by people) and the fourth, and the fifth, and, where "the accused" would be a person, the sixth, seventh and eighth would apply to persons, the ninth speaks of people and - lest you should suggest that "people" should be "assumed" to mean "states", the tenth amendment refers to "...the states OR to the people" ...implying two distinct entities.

Where the Tenth Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” …The fact is that a power “to organize, ARM and discipline the militia…” HAS been “delegated to the United States” by the text of the sixteenth clause of Article I, Section 8. Of course, that power was granted to Congress with the understanding that Congress also had a RESPONSIBILITY to see that the militia WAS so “organized, armed and disciplined.” Had the states passed laws prohibiting the people from possessing weapons - particularly those sorts of weapons prescribed for use in the militia by Congress - this would CLEARLY have amounted to an intrusion by the state governments into the rightful jurisdiction of the Federal Government.

Your concerns regarding people who can not be expected to responsibly manage or exercise their right to keep and bear arms are well taken. But, in all honesty, I don’t see where that jurisdiction is clearly resolved by the Constitution or Bill of Rights. Hard cases make for bad law. All the same, I’m confident that could be resolved without much controversy even if it took a constitutional amendment to resolve it. Again: all rights (and powers) come with responsibilities.

(Please note: I'm NOT saying that Gura is arguing my point of view. He is not. In this case, as in Heller, Gura seeks to divorce the protection promised to the right to keep and bear arms from the militia clause entirely. I agree that the right is not DEPENDENT on participation in the militia (quite the contrary ...the continued existence of a militia was perceived as depending on the people continuing to be armed) ...but I think Gura has made a mistake - perhaps a fatal mistake - in failing to recognize that the militia clause should be much more of an asset to those who support the right to keep and bear arms than those who oppose it. But the fact remains that the Bill of Rights and Second Amendment did NOT repeal the powers granted to the Federal Government to organize, arm and discipline the militia and, as such, any power the state governments may have had to restrict the right to keep and bear arms certainly could not compromise the authority of the Federal Government to see that the militia WAS armed.)

Posted by James H. on March 8, 2010 at 11:32 AM

Re: “RE: Gunning Down the Constitution—Kevin Gutzman Defends

I generally sympathize and agree with you on the subject of what you (I think inappropriately) refer to as "States' Rights": I prefer to think of this as the importance of restricting Federal Powers to those actually granted by the Constitution. Only PEOPLE have rights: States have powers only as granted to them by the governed for the protection of their rights.

Where you say that ""The Bill of Rights was never intended to be a list of individual rights but a list of things the Federal Government could not do to the states." ...I strongly disagree. The Second Amendment speaks of "the right OF THE PEOPLE to keep and bear arms." The term "THE PEOPLE" (or person(s)") is also employed in the first amendment, (the third speaks of "houses" which are owned by people) and the fourth, and the fifth, and, where "the accused" would be a person, the sixth, seventh and eighth would apply to persons, the ninth speaks of people and - lest you should suggest that "people" should be "assumed" to mean "states", the tenth amendment refers to "...the states OR to the people" ...implying two distinct entities.

Where the Tenth Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” …The fact is that a power “to organize, ARM and discipline the militia…” HAS been “delegated to the United States” by the text of the sixteenth clause of Article I, Section 8. Of course, that power was granted to Congress with the understanding that Congress also had a RESPONSIBILITY to see that the militia WAS so “organized, armed and disciplined.” Had the states passed laws prohibiting the people from possessing weapons - particularly those sorts of weapons prescribed for use in the militia by Congress - this would CLEARLY have amounted to an intrusion by the state governments into the rightful jurisdiction of the Federal Government.

Your concerns regarding people who can not be expected to responsibly manage or exercise their right to keep and bear arms are well taken. But, in all honesty, I don’t see where that jurisdiction is clearly resolved by the Constitution or Bill of Rights. Hard cases make for bad law. All the same, I’m confident that could be resolved without much controversy even if it took a constitutional amendment to resolve it. Again: all rights (and powers) come with responsibilities.

(Please note: I'm NOT saying that Gura is arguing my point of view. He is not. In this case, as in Heller, Gura seeks to divorce the protection promised to the right to keep and bear arms from the militia clause entirely. I agree that the right is not DEPENDENT on participation in the militia (quite the contrary ...the continued existence of a militia was perceived as depending on the people continuing to be armed) ...but I think Gura has made a mistake - perhaps a fatal mistake - in failing to recognize that the militia clause should be much more of an asset to those who support the right to keep and bear arms than those who oppose it. But the fact remains that the Bill of Rights and Second Amendment did NOT repeal the powers granted to the Federal Government to organize, arm and discipline the militia and, as such, any power the state governments may have had to restrict the right to keep and bear arms certainly could not compromise the authority of the Federal Government to see that the militia WAS armed.)

Posted by James H. on March 8, 2010 at 12:30 AM
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