The question is whether the presumption on which the 2nd is based
included
an individual right -- a pre-existing right that precedes the
Constitution.

There are those who BELIEVE the RKBA is an individual right, and
will
ultimately fight for that belief by any means necessary. In the
end,
the only rights we have are those that we fight for.

And if you win, are you prepared to agree that Roe v. Wade is
equally
good
jurisprudence?

Wether you like abortion or not, Rove v. Wade was based on perjured
testimony.

sigh So what does that have to do with the Supreme Court decision?
Perjury
is for the lower courts to deal with.

So I'll ask again, if you're willing to reach into the surrounding
history
of the 2nd to support an individual right, are you equally willing to
support the similar jurisprudence of Roe v. Wade?

The Supreme Court should deal with perjury in the Supreme Court.

But they don't, unless there's a constitutional issue raised by the
perjury
itself -- an unlikely possibility. So that doesn't answer the question.


And YES, I am willing to support an individual right in almost
everything. I see 2 problems with Roe v Wade; the Constitution does not
give the Feds jurisdiction over medicine, and the issue of legal life
needs to be settled. It has always been at birth.

Well, that's what Roe v. Wade does, doesn't it?

If life legally
begins at conception, the Feds can institute a Vagina Police and charge
any woman that miscarries with manslaughter.

Nonsense. If she miscarries, that's an accident of nature, not something
that happens due to her volition.

They might also require
monthly pregnancy tests to assure they don't lose any future soldiers or
bureaucrats. Do you want to give the Feds that power?

The people who might are the Christian right. g


The govt that has the power to give you what you want has the power to
take what you have.

Are we coining flimsy aphorisms, or deciding a legal issue?

It sounds to me that you agree that Roe v. Wade is a correct decision. If
you're willing to reach out beyond the words and history of the Bill of
Rights to find additional "rights," then there probably is no limit to
what
you could find. Or do you have a guiding principle for that?

The guiding principle created in Roe v. Wade is clever, logically
consistent, and perfectly rational. But it continues to stick in the craw
of
many people who don't like the decision. Likewise, the 2nd Amendment.

--
Ed Huntress


I think the examples of Roe vs Wade and the 2nd Amendment demonstrate how
the law and judicial construction are supposed to work. In the case of Roe
vs Wade you have a situation where the court has to extend the constitution
to an event that was never contemplated by the founding fathers. Nothing was
ever mentioned about abortion or reproductive rights in the constitution and
there was virtually nothing to find in the contemporary writings either.
That means the modern court has to figure out how to decide what is
constitutional without any help from the law's creators. So they came up
with the penumbras and emanations ploy to find a right to privacy in the
constitution. It was constructed completely out of thin air but it worked
and that's what being a judge is all about. Making things work to bring
about a just outcome.

The 2nd Amendment is exactly the opposite. It's a simple case, as I said
before, because it basically comes down to a yes or no answer. Did the
constitution mean that the right to bear arms was meant to apply to American
citizens? That's a yes or no any way you slice it. Unlike the court that
decided Roe, the current court can go back in history and find out exactly
what the lawmakers who made the law intended when they wrote it. It's also
similar to the 14th Amendment debate. Before it's adoption the thinking at
the time was that the constitution only applied to the federal government
and not to the individual state governments. That was a yes or no decision
too. Now it seems obvious that the 14th Amendment applied to the whole
country, but it was argued by some at the time that it did not. It's the
same with the 2nd Amendment. Aside from all the legal arguments, it's
understandable from the plain language of the amendment that, like all the
others mentioning "the people", it does indeed mean the people when it says
people and protects their individual right to bear arms.

If you only go back as far as early American history to understand what the
2nd Amendment actually means you don't get a full understanding of what the
people of that era believed. If you go back to England and look at what they
thought about the right to bear arms you find that what the American
colonists believed came from an English tradition long before they came to
America. Tied in with the long historical belief of a right to self defense
and to be armed as well as possible is the belief that this right is a
natural one, derived from a creator. With a long history of believing in the
right of the people to bear arms and to self defense the American colonists
came here believing they had that right long before it was written down in
the constitution. You can find all kinds of writing from the time that shows
this. Taken from a historical belief in this god given right it is very
clear that the consensus in early America was that all Americans had the
right to keep and bear arms, constitution or no constitution. When the bill
of rights was added to the constitution it was believed that this merely
confirmed what everyone already knew, and as an added protection against the
actions of tyrannical government which may come to power. This fear of our
own government was strong at the time and individually armed citizens and no
t just an organized militia, was seen as the best protection against
tyranny.

Given all that, I maintain that this belief in the right to bear arms has
been held in common by the American people for as long as they have lived on
this continent. So now we come to the legalisms and nit picking of the
lawyers about what each and every word means as if the whole sentence can
not actually be understood by the ordinary man. After all the arguments have
been heard we come again to the choice of whether the constitution means the
militia has a right to arms or whether the people have a right to arms. By
way of the historical beliefs of Americans regarding the topic of arms and
of their leaders' views on the subject only one conclusion is possible; the
2nd Amendment is meant to protect the right of the people to bear arms. The
court may listen to counter arguments and may decide that there is no right
for individuals to have their own personal arms. But they would be wrong if
they do. Looking back at the track record of the courts in the past I
wouldn't be surprised if they do decide it wrongly. Any court that could
affirm the Dred Scott decision could do anything and I wouldn't put it past
the current group to come up with an equally bad decision. That's because
despite the quality of any legal arguments it will boil down to the personal
policy preferences of the sitting justices. They will do whatever they want
according to their political beliefs and then make complicated and intricate
legal explanations for why they did what they wanted to all along.

Hawke