SC to decide if handgun bans unconstitutional

Your interpretation is a bit broad there Robear. Most of the Amendments in the Bill of Rights aren't granting those various rights to the citizens, they are recognizing rights that already exist and preventing the government from infringing on them. Take a look at some of the specific language again (emphasis mine):

Second Amendment wrote:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

That's stating the right is already there, and can't be removed by the government.

Fourth Amendment wrote:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Same here.

Ninth Amendment wrote:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment wrote:

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.

Both of these carry fairly strong implications that these and other rights are already extant in the population, and are not being created by the Constitution or Bill of Rights.

I'd agree with your interpretation as it relates to the VI, VII and VIII though, those are actually creating rights. More specifically they're creating procedures to safeguard natural rights as you say.

Sixth, Seventh and Eighth Amendments wrote:

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Robear's interpretation isn't broad, it's just flat wrong. The Constitution establishes the framework by which the government can impose itself on the people. It would be more accurate to say that the Constitution grants the government rights, than it is to say it grants rights to people.

How can a government by the people, for the people turn around and "grant" rights back to the people? This is more than just a semantic argument, it's the conceptual foundation by which our country is governed.

I'm with you Evo, I was trying to be gentle

Besides, Robear seems to interpret the main text of the Constitution correctly here:

Robear wrote:

The Constitution as originally formulated does not enumerate rights (which is in line with the idea of natural rights being inalienable and thus not needing to be granted by government)

He just trips up when it comes to the majority of the Bill of Rights, such as here:

Robear wrote:

but the Bill of Rights was created to explicitly, legally lay out certain rights that are thereby granted to citizens by the government. The Second Amendment is not a "god-given right", but a government created one that is designed to support the inalienable right to "life, liberty and the pursuit of happiness".

But even there, his interpretation of a right being created by the Bill of Rights in order to protect certain natural rights isn't far off when it comes to the Sixth, Seventh and Eighth Amendments. Even I've got a hard time claiming that we have a natural right to a jury trial in cases exceeding twenty bucks...

Malor wrote:

If God gave us those rights, he sure doesn't have much of an enforcement arm.

How many divisions does the Pope command, eh Malor?

If God gave us those rights, he sure doesn't have much of an enforcement arm.

I do think they're inherent, but not because the superhero in the sky granted them, but because they're just the right way to behave. Treating others as we want to be treated is the cornerstone of morality. There is no angelic rights squad that will descend to the earth and fix injustice; we have to do that ourselves. We created the concept of rights. They are a very fragile thing, and we have to cling to them zealously to keep them. Like Tinker Bell, if we stop believing in them, they die.

As goes the fate of the lowest and meanest person in the society, there go we all; the only thing separating you from him or her is good fortune. Rights only matter when the government hates you and wants you dead or imprisoned, so the process of defending rights means you have to fight tooth and nail, sometimes, for truly serious scumbags. Sometimes, the government is right to hate you, but you STILL have rights even in those circumstances. And sometimes, it gets things wrong, like with virtually the entire population of Guantanamo Bay. And it's then that rights fully come into play, because they give you the power to fight back against all the authority in the world, and win.

Attributing "rights" to "god" has about as much basis in fact as attributing field goals or coin tosses to him.

Teneman wrote:

How many divisions does the Pope command, eh Malor?

Just one, but the Ninja Nuns of Saint Michael are really all you need.

Paleocon wrote:

Attributing "rights" to "god" has about as much basis in fact as attributing field goals or coin tosses to him.

I don't think it's so much attributing them to god in the 'invisible sky man' sense. It's more a colloquial way of explaining that the rights are natural. You have them when you're born just by virtue of being born. Given to you by your creator, if you will.

I agree that the "shall not be infringed" implies that they are accepted as natural, but restrictions on the rights argue that the government is granting them in some sense. I understand that the debate between natural and legal rights goes back to the period, and I wanted to lay out an alternate interpretation. I'm not wedded to it.

So natural rights are what you get by virtue of being born, correct? I have trouble with the idea that Allah is giving me my rights, but I guess if you're religious, that might make sense to you. (Yes, I'm teasing a bit here.)

Robear wrote:

So natural rights are what you get by virtue of being born, correct? I have trouble with the idea that Allah is giving me my rights, but I guess if you're religious, that might make sense to you. (Yes, I'm teasing a bit here.)

Well of course Allah is not giving you your rights. That'd just be silly. It's common knowledge that Allah is too stingy to give anything away - with the exception of that surplus of virgins he's got lying around.

I prefer to think I'm getting mine from Krishna. My rights, that is. Krishna's all out of virgins.

Robear wrote:

So natural rights are what you get by virtue of being born, correct?

Unless you were black. That required an amendment to the constitution or it wouldn't take. Also, this offer is not valid for homosexuals.

"people" in the 1700s had a much narrower definition that it does today. "White protestant heterosexual land owning males," if I recall.

Evo wrote:

Let me put it another way: The constitution protects the right's we're born with; it does not grant us those rights. The founding fathers thought that one of the inalienable rights we were born with was self defense, so they protected that right in the constitution. They weren't playing God.

Robear already responded well,; I'll just add that you got your chronology wrong. The texst of 2nd amendment (emphasis on amendment) appears in the Bill of Rights, four years after the founding fathers drafted up the initial text, and is a product of appeasement to anti-federalists and cautious ratifications representatives of the states more than to the desire of the founding fathers.

Furthermore, "self-defence" language was never in the amendment to begin with. While references to self-defence are made in other states declarations and consitutions (PA, VA), it was expressly left out of the Bill of Rights. "Self-defence" aspect is an interpretation made by the SCOTUS rulings, most lately in 2008. It's NOT a clause put in there in plain text by the founding fathers.

While what you're saying is not entirely incorrect, it's not entirely true either. The historical basis for mixing in the founding fathers (or "God" figure, for that matter) is simply not there.

Gorilla.800.lbs wrote:

Furthermore, "self-defence" language was never in the amendment to begin with. While references to self-defence are made in other states declarations and consitutions (PA, VA), it was expressly left out of the Bill of Rights. "Self-defence" aspect is an interpretation made by the SCOTUS rulings, most lately in 2008. It's NOT a clause put in there in plain text by the founding fathers.

While what you're saying is not entirely incorrect, it's not entirely true either. The historical basis for mixing in the founding fathers (or "God" figure, for that matter) is simply not there.

The historical basis for the "God" figure is certainly there, unless I'm mistaking what you mean. A snippet of the text of the Declaration:

Declaration of Independence wrote:

...and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights

Again, being primarily Deists as they were I tend to see this more as a colloquial way of explaining natural rights rather than a nod to an invisible sky man. But either way, the historical basis is certainly not missing.

I also tend to believe that while self defense isn't specifically mentioned in the amendment, that's not because the drafters didn't feel self defense was a right, it is more that they would have considered that self evident. The right to bear arms includes the right to use those arms to defend your country and yourself. I have no historical citation to that of course, and the care with which they drafted most of their language certainly argues against my personal opinion.

I agree with your point re the role of God in the language; it's just that I am reluctant to draw these lines as easily -- connecting text of the Declaration with the text of the Constitution and eventually with an amendment, arriving in the end to a conclusion that the framers earnestly believed in a God-given right to organize armed militias, or even to simply arm one-self.

Seth wrote:

"people" in the 1700s had a much narrower definition that it does today. "White protestant heterosexual land owning males," if I recall.

Exactly. Given that level of interpretation, I find it hard to put credence to any of the "what the founding father's meant" arguments. A lot of what they meant isn't, thankfully, is no longer applicable to modern society.

Gorilla.800.lbs wrote:

I agree with your point re the role of God in the language; it's just that I am reluctant to draw these lines as easily -- connecting text of the Declaration with the text of the Constitution and eventually with an amendment, arriving in the end to a conclusion that the framers earnestly believed in a God-given right to organize armed militias, or even to simply arm one-self.

Ah, I see where you're at. What I can tell you is that in academic reviews of questions like these, the Declaration, the Constitution (plus all of the original amendments), and even the external writings of the various founders and framers are all considered to be valid sources for determining the intent of the founders and thereby the intent of the language. That's where I'm coming from on the historical basis question.

It'd be interesting to pull some of the ancillary writings from the time to see if self defense is specifically mentioned or discussed as it relates to the Second Amendment. Interesting, but not something I'm likely going to bother doing to be honest

Malor wrote:
Teneman wrote:

How many divisions does the Pope command, eh Malor?

Just one, but the Ninja Nuns of Saint Michael are really all you need.

I am the only one thinking that the above would make a great porno?

I often find this thread odd. Jefferson was a Deistic, agnostic, and really anti-organized religion especially anti-Christianity, and Madison(chief architect of the constitution and pre-amble) was an atheist.

KingGorilla wrote:

I often find this thread odd. Jefferson was a Deistic, agnostic, and really anti-organized religion especially anti-Christianity, and Madison(chief architect of the constitution and pre-amble) was an atheist.

Link on Madison? Everything I've ever seen labels him either a Deist or an Episcopalian. This article discusses the difficulty in classifying him in the fourth paragraph, but hardly calls him an atheist. His own quote from here tends to argue against being an atheist as well.

James Madison wrote:

The belief in a God All Powerful wise and good, is so essential to the moral order of the world and to the happiness of man, that arguments which enforce it cannot be drawn from too many sources nor adapted with too much solicitude to the different characters and capacities to be impressed with it.

* Letter to Rev. Frederick Beasley (1825-11-20)

ETA: I've got no idea as to the veracity of these three sources, they're just what turned up in a quick Google search.

I would love to find a link to a record of the Constitutional Congress, there is a great bit about putting god into the preamble. It was about a 50-50 split. There in Madison speaks in terms like Voltaire.

Maybe atheist has an uncomfortable connotation to some. Is non-theist or secular humanist easier to bear? Madison and Jefferson had close ties with the Unitarian church. Mostly for its all inclusive nature, and all that.

I'm not sure about anyone else, but the term atheist doesn't carry any discomfort for me. I was just questioning the accuracy of it as applied to Madison. From the same standpoint non-theist wouldn't seem any more accurate - again, given what I've seen.

I'll give you non-denominational, or anything of the like. Or even religiously-confused as he seems to change his mind, or at least his public discussions, on the subject. I just don't see where you're getting atheist, I haven't seen anything where he argues against the existence of some form of divinity, whether invisible sky man or more deistic. The strongest argument for atheism that I've seen is his support of separation of church and state, which isn't sound logic in my mind.

Again, I'm interested, not defensive. Whether he was atheist, deist, or pastafarian doesn't personally impact me in the slightest, but it adds an interesting window into his thought process and thereby some of the intent behind the language of his writings.

Ah, I see where you're at. What I can tell you is that in academic reviews of questions like these, the Declaration, the Constitution (plus all of the original amendments), and even the external writings of the various founders and framers are all considered to be valid sources for determining the intent of the founders and thereby the intent of the language. That's where I'm coming from on the historical basis question.

Yes. The question for the folks who think the US was somehow Christian is why God was left out of the Constitution? The Declaration of Independence is not the law of the land. There were several model Constitutions looked at, some of which actively involved God and religion. It's pretty clear that that path was *not* chosen for the US Constitution, even though most of the Founders were deists.

I think the idea that they would approve of today's Evangelical and Fundamentalist takes on the role of God in government and society is taken in ignorance of the ideas of the Enlightenment which drove most of them.

Robear wrote:

Yes. The question for the folks who think the US was somehow Christian is why God was left out of the Constitution? The Declaration of Independence is not the law of the land. There were several model Constitutions looked at, some of which actively involved God and religion. It's pretty clear that that path was *not* chosen for the US Constitution, even though most of the Founders were deists.

I think the idea that they would approve of today's Evangelical and Fundamentalist takes on the role of God in government and society is taken in ignorance of the ideas of the Enlightenment which drove most of them.

Agreed on all counts. I'd actually go further and say that those model Constitutions were discarded not despite the fact that the Founders were Deists, but because of it.

Though the separation of church and state in today's environment is seen mostly as a way to protect the state from the church, at the time it was written it was more likely to be viewed as a way to protect the church (small "c") from the state. Don't forget this was not far from the time of state-sponsored religions and religious persecution of non-mainstream denominations. The founders wanted people to be free to worship however they chose, or not at all if they chose.

That the doctrine works both ways speaks to the foresight in the way the founders wrote the documents.

Well, foresight and Enlightenment principles. In that regard, we've actually moved backwards; modern conservative opinions often seem to put the Founders to the left of the pundits.

Well, foresight and Enlightenment principles. In that regard, we've actually moved backwards; modern conservative opinions often seem to put the Founders to the left of the pundits.

Robear wrote:

The Declaration of Independence lists natural rights such as "life, liberty and the pursuit of happiness". But that's not the US Constitution. The Constitution as originally formulated does not enumerate rights (which is in line with the idea of natural rights being inalienable and thus not needing to be granted by government) but the Bill of Rights was created to explicitly, legally lay out certain rights that are thereby granted to citizens by the government. The Second Amendment is not a "god-given right", but a government created one that is designed to support the inalienable right to "life, liberty and the pursuit of happiness".

If you want to see a natural right, find the part of the US Constitution where we are granted the right of "liberty". Granted rights are used to secure the natural rights of each man. Natural rights define the framework of a just and free government, but the details are legally granted rights.

Yes. Well written. There are only 3 inalienable rights granted to us - "life, liberty and the pursuit of happiness". The rest are granted by, and can be changed by, the people.

Shoal07 wrote:

Yes. Well written. There are only 3 inalienable rights granted to us - "life, liberty and the pursuit of happiness". The rest are granted by, and can be changed by, the people.

Judging by your language I assume you're considering the Declaration as the definitive list of our inalienable rights. If so, you're missing three pretty key words:

Declaration of Independence wrote:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Declaration itself is pretty strongly implying that there are other inalienable rights. The Constitution flat out states it as I showed above in the analysis of the Bill of Rights.

Teneman wrote:
Shoal07 wrote:

Yes. Well written. There are only 3 inalienable rights granted to us - "life, liberty and the pursuit of happiness". The rest are granted by, and can be changed by, the people.

Judging by your language I assume you're considering the Declaration as the definitive list of our inalienable rights. If so, you're missing three pretty key words:

Declaration of Independence wrote:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Declaration itself is pretty strongly implying that there are other inalienable rights. The Constitution flat out states it as I showed above in the analysis of the Bill of Rights.

I believe it is the SCOTUS themselves that, in case decisions, have stated what I stated. No law shall be written that infringes on life, liberty, or the pursuit of happiness, but all others are open to change by the people (hence the amendment process) or by the other governing bodies. The sole existence of the SCOTUS is pretty much because of ambiguous wording. If our constitution was written like the 10 commandments the whole interpretation thing wouldn't be needed.

Shoal07 wrote:

I believe it is the SCOTUS themselves that, in case decisions, have stated what I stated. No law shall be written that infringes on life, liberty, or the pursuit of happiness, but all others are open to change by the people (hence the amendment process) or by the other governing bodies. The sole existence of the SCOTUS is pretty much because of ambiguous wording. If our constitution was written like the 10 commandments the whole interpretation thing wouldn't be needed.

Yeah, but SCOTUS is hardly infallable, and has taken exquisite joy over the last few hundred years in creatively interpreting language into the documents that simply doesn't exist. That such may or may not be necessary due to the changing times is fodder for a different conversation.

But the amendment process is an interesting point. I don't disagree with what you're saying in that light, I just interpret it slightly differently. The natural rights exist external to the Constitution, they are not granted to us by it, nor are they limited to the three biggies. That's the point I was making. But you're right we can, as a people, collectively agree to curtail any of those natural rights if we wish by amending the Constitution.