Amend the Second Amendment?

[Smull]

I feel that the 2nd amendment pretty clearly gives an individual a right to bear arms, not a "collective right". No other right is seen as collective (imagine if the first amendment were "interpreted" this way! Only those of us the government deeded worthy would be able to exercise this right!).

Therefore I think that any discussion of banning guns NEEDS to include a constitutional amendment, and I'm at least glad you seem to recognize that anything else would be unconstitutional.

Originally Posted by Phantom

I tend to agree. The amendment was written (poorly) by persons who had concerns that are completely irrelevant today.

A reason behind the idea of a right to bear arms is to protect citizens from their own government (ala the Revolution) and foreign invasion. I think theres also an issue of trust that the government (then and now) trusted individuals to own guns unless an individual gave them reason not to. Sort of a innocent until proven guilty thing, we'll assume your responsible enough to own a gun unless you give us a reason not to.

Originally Posted by leviathon

And yet compare the crime rate, especially gun crime, in America to those of European countries where guns are not legal. I know you'll say it's due to a different culture but surely this is in part created by the legalisation of guns.

European gun bans haven't exactly been the be all end all to gun crime...
BBC News | UK | Handgun crime 'up' despite ban
Ministers 'covered up' gun crime - Times Online
GUN CRIME UP BY 150% - Mirror.co.uk

[Pocono Pete]

Originally Posted by Phantom

Great post, I just disagree entirely.

Thanks and that's fine.

Originally Posted by Phantom

Your quotes from Supreme Court decisions are relevant, but as far as I can tell they are all dicta - . . . even if these were holdings, I don't see how a Supreme Court holding would be followed if it were found in clear contradiction to the Constitution itself.

Those quote certainly stand as explanations of the Court's reasoning and understanding of the fundamental principles. As we have seen, even an explanation / interpretation articulated in a dissent can become a definitive statement of constitutional principle in our legal history:

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, supra, at 543 (dissenting from dismissal on jurisdictional grounds).

Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples."

Planned Parenthood v. Casey, 505 U.S. 833 (1992)

I believe that since Justice Harlan's reasoning can be used to confirm the existence, liberty interest and federal protection of an unenumerated right, surely it can be used to further illuminate those conditions in a right expressly stated in the Bill of Rights.

Originally Posted by Phantom

The literal language of Article V is posted in its entirety below for your convenience.

I am quite aware of the amendment process but the amendment process can not be used to alter or violate a fundamental principle. As Marbury said:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. "

The principles upon which a constitution rest are to be established before the constitution is ratified, ("for their future government"), not subject retroactive modification.

The principles can not be changed by the limited authority the constitution authorizes. Since that constitutional authority is supreme, (there is no power above it), and the powers granted are so limited ("can seldom act"), those principles are permanent and unchangeable. The only way to change the principles upon which our governmental authority is based is to scrap the whole system and erect a new constitution authorizing powers based on those new principles.

That's my interpretation and that's why I believe there could be an "unconstitutional amendment" even if the exact process of amendment is followed.

[kombayn]

And what is so hard to exactly understand? A free state has the right to have a Militia to defend their borders, so the people have the right to keep & bear arms for such a moment and cannot be infringed upon by anyone.

This is what Congress is trying to push through Americans heads. They want to take your guns because then a free State cannot remove itself from the contract of the United States of America when they start passing extremely controversial laws into the country.

Don't let anyone fool you. It's a natural right as an American-born citizen to own a gun on your private property and to protect yourself from the Government when they intrude on your rights. What's hard to grasp?