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Chris
12-29-2012, 12:34 PM
From Craig R. Whitney on Living With Guns (http://reason.com/reasontv/2012/12/21/craig-r-whitney-living-with-guns)


http://www.youtube.com/watch?feature=player_embedded&v=ulV9W66bOcc#!

Early in the video he states the right is an individual one and how that supports the need for a well-regulated militia.

Peter1469
12-29-2012, 02:55 PM
Professor Ray Diamond is a far left law school professor who set out to prove that the 2nd Amendment was a collective right. Through his research he became convinced that it was an individual right.

Unfortunately, other than on the 2nd Amendment, he is still far left.

Chris
12-29-2012, 04:32 PM
I would argue that the nominative absolute construction actually supports both the individual and the collective right. IOW, for the purpose of the groups defense against tyranny, the individual's right to bear arms shall not be messed with.

I think it important that natural law and rights before Locke and others of the Scottish/English Enlightenment applied to groups, and to individuals only after. If you read the old traditional conservative Edmund Burke on natural law, it applied not to individual Irishmen but the Irish, not to individual colonists but Americans. The colonists, imo, saw things the other way around, the means of preserving a free society was through individual rights.

Nemo
12-30-2012, 07:22 AM
The Second Amendment does not grant any rights. See United States v. Cruikshank, 92 U.S. 542 (1875). Furthermore, the Second Amendment prohibition against "infringement" does not preclude "regulation." Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute.

Peter1469
12-30-2012, 07:47 AM
The Second Amendment does not grant any rights. See United States v. Cruikshank, 92 U.S. 542 (1875). Furthermore, the Second Amendment prohibition against "infringement" does not preclude "regulation." Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute.

SCOTUS has ruled that the rights under the 2nd Amendment are individual rights, not a collective right. District of Columbia v. Heller

Nemo
12-30-2012, 07:53 AM
That’s correct; however, the right of an individual to have a gun is limited by law. As Justice Antonin Scalia stated for the majority in District of Columbia v. Heller:

‘Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. (Citation Omitted) For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. (Citation Omitted) Although we do not undertake an exhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (FN 26 Omitted)

‘We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (Citations Omitted)’ District of Columbia v. Heller, 554 U.S. 570 (2008).

Gun owners will soon find themselves the more "well regulated".

zelmo1234
12-30-2012, 07:56 AM
That’s correct; however, the right of an individual to have a gun is limited by law. As Justice Antonin Scalia stated for the majority in District of Columbia v. Heller:

‘Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. (Citation Omitted) For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. (Citation Omitted) Although we do not undertake an exhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (FN 26 Omitted)

‘We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (Citations Omitted)’ District of Columbia v. Heller, 554 U.S. 570 (2008).

Gun owners will soon find themselves the more "well regulated".

It seems that Gun owners have some powerful allies on the court, that understand the constitution

https://www.google.com/#hl=en&tbo=d&sclient=psy-ab&q=supreme+court+ruling+on+washington+d.c.+gun+ban&oq=supreme&gs_l=hp.1.0.35i39j0j0i20l2.148013.155269.0.158657. 13.10.3.0.0.0.549.3276.2-5j2j2j1.10.0.les%3B..0.0...1c.1.hMij80_8G-Q&pbx=1&bav=on.2,or.r_gc.r_pw.r_qf.&bvm=bv.1355534169,d.cWE&fp=e233eb1ee8f7df5&bpcl=40096503&biw=1366&bih=622

And what I really have never understood it what good it does to keep law abiding citizens from owning Guns???

Peter1469
12-30-2012, 07:57 AM
Agreed with the premise. But gun owners are already very much regulated. The left wants to ban, not regulate guns.

Nemo
12-30-2012, 08:03 AM
It’s hardly a case of "left" or "right" Indeed, the ruling of the Supreme Court in District of Columbia v. Heller that the Second Amendment encompasses an individual right can only be construed as a "liberal" interpretation. Certainly, it is not a "conservative" view by any judicial standard. Consider this quote from former Chief Justice Warren Burger, who was probably the most conservative justice on the Supreme Court for the last 50 years:

"If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment... This has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud', on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."
- Warren Burger, Parade Magazine (January 14, 1990).

And, how about this statement by Circuit Judge Robert Bork, renowned constitutional scholar and foremost exponent of "originalism" in its interpretation:

"[The] National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is the people's right to bear arms in a militia. The NRA thinks it protects their right to have Teflon-coated bullets. But that's not the original understanding."
- Robert H. Bork, Distinguished Lecture Series, UC Irvine, (March14, 1989).

As for Justice Scalia’s opinion in Heller, it could hardly be an "originalist" interpretation, witness the judicial gymnastics he did to bend and stretch the Second Amendment. Justice Scalia is a brilliant jurist; but he tends to be result oriented. He determines the result, and then finds authority to support it; and if there is no authority, he makes it up out of whole cloth.

zelmo1234
12-30-2012, 08:11 AM
It’s hardly a case of "left" or "right" Indeed, the ruling of the SupremeCourt in District of Columbia v. Heller that the Second Amendment encompasses an individual right can only be construed as a "liberal" interpretation. Certainly, it is not a "conservative" view by any judicial standard. Consider this quote from former Chief Justice Warren Burger, who was probably the most conservative justice on the Supreme Court for the last 50 years:

"If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment... This has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud', on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."
- Warren Burger, Parade Magazine (January 14, 1990).

And, how about this statement by Circuit Judge Robert Bork, renowned constitutional scholar and foremost exponent of "originalism" in its interpretation:

"[The] National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is the people's right to bear arms in a militia. The NRA thinks it protects their right to have Teflon-coated bullets. But that's not the original understanding."
- Robert H. Bork, Distinguished Lecture Series, UC Irvine, (March14, 1989).

As for Justice Scalia’s opinion in Heller, it could hardly be an "originalist" interpretation, witness the judicial gymnastics he did to bend and stretch the Second Amendment. Justice Scalia is a brilliant jurist; but he tends to be result oriented. He determines the result, and then finds authority to support it; and if there is no authority, he makes it up out of whole cloth.

It very much appears that Scalia nay have had it right

It is not a secret or mystery to find our what our founding fathers thought about the second amendment.

http://mddall.com/sbss/0404.htm

It is quite clear that they intended the intire population to own firearms. and they also intended them to know yow to use them and have the right to carry them (well regulated)

And even then they knew that the baning of Guns did not help to prevent crimes.

Nemo
12-30-2012, 08:17 AM
The original purpose of the Second Amendment was to protect the right of the several states to control their militia's, and as a limitation of the power of the federal government over state militia’s under Article I, Section 8, Clause 15. At the time of the ratification of the Second Amendment, there was no standing army, and there was very real concern that the Constitution ceded too much power to Congress. See The Federalist Papers, No. 46 (James Madison, Jan. 29, 1788). However that has been largely made obsolete by time, as the National Guard is now an adjunct component of the United States Army Reserve. (Interestingly, an argument could be made that the deployment of State National Guard Units to Iraq and Afghanistan violates the Second Amendment.)

Peter1469
12-30-2012, 08:21 AM
It’s hardly a case of "left" or "right" Indeed, the ruling of the Supreme Court in District of Columbia v. Heller that the Second Amendment encompasses an individual right can only be construed as a "liberal" interpretation. Certainly, it is not a "conservative" view by any judicial standard. Consider this quote from former Chief Justice Warren Burger, who was probably the most conservative justice on the Supreme Court for the last 50 years:

"If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment... This has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud', on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."
- Warren Burger, Parade Magazine (January 14, 1990).

And, how about this statement by Circuit Judge Robert Bork, renowned constitutional scholar and foremost exponent of "originalism" in its interpretation:

"[The] National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is the people's right to bear arms in a militia. The NRA thinks it protects their right to have Teflon-coated bullets. But that's not the original understanding."
- Robert H. Bork, Distinguished Lecture Series, UC Irvine, (March14, 1989).

As for Justice Scalia’s opinion in Heller, it could hardly be an "originalist" interpretation, witness the judicial gymnastics he did to bend and stretch the Second Amendment. Justice Scalia is a brilliant jurist; but he tends to be result oriented. He determines the result, and then finds authority to support it; and if there is no authority, he makes it up out of whole cloth.

Bork is correct; Burger is incorrect. The militia was citizens, not government. That is the key.

Peter1469
12-30-2012, 08:22 AM
The original purpose of the Second Amendment was to protect the right of the several states to control their militia's, and as a limitation of the power of the federal government over state militia’s under Article I, Section 8, Clause 15. At the time of the ratification of the Second Amendment, there was no standing army, and there was very real concern that the Constitution ceded too much power to Congress. See The Federalist Papers, No. 46 (James Madison, Jan. 29, 1788). However that has been largely made obsolete by time, as the National Guard is now an adjunct component of the United States Army Reserve. (Interestingly, an argument could be made that the deployment of State National Guard Units to Iraq and Afghanistan violates the Second Amendment.)

The National Guard is not the militia. The militia is citizens. Not employees of the states (or federal government).

zelmo1234
12-30-2012, 08:26 AM
The original purpose of the Second Amendment was to protect the right of the several states to control their militia's, and as a limitation of the power of the federal government over state militia’s under Article I, Section 8, Clause 15. At the time of the ratification of the Second Amendment, there was no standing army, and there was very real concern that the Constitution ceded too much power to Congress. See The Federalist Papers, No. 46 (James Madison, Jan. 29, 1788). However that has been largely made obsolete by time, as the National Guard is now an adjunct component of the United States Army Reserve. (Interestingly, an argument could be made that the deployment of State National Guard Units to Iraq and Afghanistan violates the Second Amendment.)

That is a very nice thought, but if you click on my link, you will see the actual words of the founding fathers and there ideas on the second amendment.

It is no secret

Their words have been preserved so we can look back and see what they meant.

And the National Guard and Military are not allowed to take defensive action on US soil. thought they do provide relief and aid. And of course under Bill Clinton went to war against a Cult Church

And though the people that are against gun ownership would have the population beleive otherwise, the words "the people" has in every case in the constitution, refered to the person as an individual. to change that in the second amendment would give the government the power to use those words as the collective in each and every article and amendment in the constitution. A very slippery slope toward a government with unlimited control over the people.

Now if you do not feel the need for the second amendment, then of course the founding fathers gave us a path to change it, and it would only take repeal of the second amendment

Nemo
12-30-2012, 09:39 AM
I am not against gun ownership, not at all. What I'm telling you, however, is that your protected right to have a gun is provided by law, which defines that right. That said, if you want less restrictive gun laws, then the last thing you want to do is make a federal case of it, for experience has shown that Congress is obsessed with regulating everything. At least at the state level the people will have more say on the matter.

Chris
12-30-2012, 10:15 AM
The Second Amendment does not grant any rights. See United States v. Cruikshank, 92 U.S. 542 (1875). Furthermore, the Second Amendment prohibition against "infringement" does not preclude "regulation." Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute.

No one in this thread is arguing right are granted by the Constitution, how could natural rights be granted?

No, there is nothing in the second that grants government the power to regulate anything. Perhaps you could find those words that say that?

Natural rights are limited only by natural law. In short, rights are responsibilities.

Chris
12-30-2012, 10:24 AM
It’s hardly a case of "left" or "right" Indeed, the ruling of the Supreme Court in District of Columbia v. Heller that the Second Amendment encompasses an individual right can only be construed as a "liberal" interpretation. Certainly, it is not a "conservative" view by any judicial standard. Consider this quote from former Chief Justice Warren Burger, who was probably the most conservative justice on the Supreme Court for the last 50 years:

"If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment... This has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud', on the American public by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires."
- Warren Burger, Parade Magazine (January 14, 1990).

And, how about this statement by Circuit Judge Robert Bork, renowned constitutional scholar and foremost exponent of "originalism" in its interpretation:

"[The] National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is the people's right to bear arms in a militia. The NRA thinks it protects their right to have Teflon-coated bullets. But that's not the original understanding."
- Robert H. Bork, Distinguished Lecture Series, UC Irvine, (March14, 1989).

As for Justice Scalia’s opinion in Heller, it could hardly be an "originalist" interpretation, witness the judicial gymnastics he did to bend and stretch the Second Amendment. Justice Scalia is a brilliant jurist; but he tends to be result oriented. He determines the result, and then finds authority to support it; and if there is no authority, he makes it up out of whole cloth.

Agree.

About the only one considers Scalia an originalist is Scalia. And the problem with originalism is it puts intent before text. Argue the text, intent is an interesting addendum.

Chris
12-30-2012, 10:25 AM
I am not against gun ownership, not at all. What I'm telling you, however, is that your protected right to have a gun is provided by law, which defines that right. That said, if you want less restrictive gun laws, then the last thing you want to do is make a federal case of it, for experience has shown that Congress is obsessed with regulating everything. At least at the state level the people will have more say on the matter.

Law does not define right, right defines law, as the Constitution's Preamble makes clear.

Nemo
12-30-2012, 10:29 AM
No, you have it backwards. There can be no extra-legal rights; it is implicit in the in the plain meaning of the Constitution. The framers of the Constitution created a nation of laws and not men. All rights exist only by law; and without the law, we have no rights. Without law, there is anarchy; which is antithetical to the very existence of the rights you advocate. Rights can only exist within the structure of organized society subject to the rule of law. In this, it must be admitted that there can be no society without the law; it is the very fabric of social structure. It is, like the air we breathe, pervasive and essential, affecting every aspect of human relationships and endeavors. Beyond this lies only the uncertainty of uncivilized life where there is no society, where every man is a law unto himself; and life, as Hobbes put it, is "solitary, poor, nasty, brutish, and short." Thomas Hobbes, Leviathan (1651). Such rights are nothing more than a scrambling possession that would be unlikely to last beyond the first to challenge the claim by force. The law is the only means by which real rights may be secured. That is the simple meaning of it.

Chris
12-30-2012, 10:42 AM
No, you have it backwards. There can be no extra-legal rights; it is implicit in the in the plain meaning of the Constitution. The framers of the Constitution created a nation of laws and not men. All rights exist only by law; and without the law, we have no rights. Without law, there is anarchy; which is antithetical to the very existence of the rights you advocate. Rights can only exist within the structure of organized society subject to the rule of law. In this, it must be admitted that there can be no society without the law; it is the very fabric of social structure. It is, like the air we breathe, pervasive and essential, affecting every aspect of human relationships and endeavors. Beyond this lies only the uncertainty of uncivilized life where there is no society, where every man is a law unto himself; and life, as Hobbes put it, is "solitary, poor, nasty, brutish, and short." Thomas Hobbes, Leviathan (1651). Such rights are nothing more than a scrambling possession that would be unlikely to last beyond the first to challenge the claim by force. The law is the only means by which real rights may be secured. That is the simple meaning of it.

I have it wrong, because you say so? LOL.


it is implicit in the in the plain meaning of the Constitution

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

In the plain text of the Constitution it is clearly stated that the people created the law to secure their already existing liberty.


The framers of the Constitution created a nation of laws and not men.

Exactly.

"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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."

But that is the opposite of law creates right. Right are naturally inherent in who we are and based on those rights we create the law, the Constitution, the government.



Thomas Hobbes, Leviathan (1651).

Indeed, a statist argument by a statist. Locke's writings deriving natural rights from natural law were a direct counterargument to Hobbes. Guess whose ideas were adopted in the Declaration. "We hold these truths..."



All rights exist only by law; and without the law, we have no rights.

All you're doing, nemo, is repeating your claim in different words. You don't seem to have an argument.




Without law, there is anarchy; which is antithetical to the very existence of the rights you advocate.

Anarchy is governance without government, not chaos.


In this, it must be admitted that there can be no society without the law; it is the very fabric of social structure.

On the contrary, social structure defines the law. "We the people...."




The law is the only means by which real rights may be secured.

Amazed at how many ways you've managed to repeat your claim, never once giving an argument to support it, no justification at all.

Nemo
12-30-2012, 10:49 AM
No, you've got it wrong. The Declaration of Independence was not a foundational document; it was a declaration of our independence from the colonial rule by the English Monarchy, and an act of war. Furthermore, Thomas Jefferson’s ideas about natural rights were not adopted by the framers of our Constitution. (Jefferson was not a framer of the Constitution. He was serving as Ambassador to France at the time of the Constitutional Convention; and except for his correspondence with some of the delegates, what resulted was largely the work of James Madison. Even his draft Constitution and Declaration of Rights for Virginia was rejected in favor of the model of George Mason.) Jefferson wrote in the Declaration of Independence: "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. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed . . . ." The framework of our government, however, did not incorporate the ideals expressed by Jefferson in the Declaration of Independence. The intoxicating ideas of Rousseau and Locke that Jefferson so admired, and that inspired our revolution (and that of France as well), gave way to a more sober expression of our rights and freedoms in the Constitution and Bill of Rights. The framers of our Constitution created a nation of laws and not men; which represents a compromise between the rights of individuals and the power of the state. All men are not created equal, they are equal under the law; and the rights to "Life, Liberty and the pursuit of Happiness" are not unalienable, they are subject to law. The rule of law is the basis of our Constitution that is the foundation of our government and the font of our individual rights and liberty.

Chris
12-30-2012, 11:18 AM
No, you've got it wrong. The Declaration of Independence was not a foundational document; it was a declaration of our independence from the colonial rule by the English Monarchy, and an act of war. Furthermore, Thomas Jefferson’s ideas about natural rights were not adopted by the framers of our Constitution. (Jefferson was not a framer of the Constitution. He was serving as Ambassador to France at the time of the Constitutional Convention; and except for his correspondence with some of the delegates, what resulted was largely the work of James Madison. Even his draft Constitution and Declaration of Rights for Virginia was rejected in favor of the model of George Mason.) Jefferson wrote in the Declaration of Independence: "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. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed . . . ." The framework of our government, however, did not incorporate the ideals expressed by Jefferson in the Declaration of Independence. The intoxicating ideas of Rousseau and Locke that Jefferson so admired, and that inspired our revolution (and that of France as well), gave way to a more sober expression of our rights and freedoms in the Constitution and Bill of Rights. The framers of our Constitution created a nation of laws and not men; which represents a compromise between the rights of individuals and the power of the state. All men are not created equal, they are equal under the law; and the rights to "Life, Liberty and the pursuit of Happiness" are not unalienable, they are subject to law. The rule of law is the basis of our Constitution that is the foundation of our government and the font of our individual rights and liberty.

LOL, again, I'm wrong simply because you declare it so.


The Declaration of Independence was not a foundational document; it was a declaration of our independence from the colonial rule by the English Monarchy, and an act of war.

It is, it declares justification of law as based on rights. I can imagine you don't like that. It is based on that that we declare independence. "...Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."


Furthermore, Thomas Jefferson’s ideas about natural rights were not adopted by the framers of our Constitution.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Based on the Declaration-derive Preamble, it is further stated:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Thus the law, the supreme law of the land, and all other laws, are created by the right of the people to create it...and alter or abolish it.

With regard to altering it, we have, furthermore, two amendments that clearly state rights precede the supreme law and subsequent laws:

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

And

"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."

BTW, the ideas weren't Jefferson's so much as those of Locke and others of the Scottish Enlightenment. The ideas were commonplace. See, for instance, May's The Enlightenment in America.

Thus your arguments about Jefferson border on arguing the man instead of the message. Your telling us about Jefferson and Madison is not only uninformative, but also irrelevant.




The framers of our Constitution created a nation of laws and not men; which represents a compromise between the rights of individuals and the power of the state.

You've just contradicted your entire argument. Indeed, the framers, based on their rights to do so, framed a nation of laws (no one here is arguing about a nation of men). Rights thus precede law.

You also contradict your argument in saying it was a compromise between the rights of individuals, which already existed, and the power of the state, which was being created.

Simple temporal logic says rights precede law.

Think not? Then tell us on what basis they created the supreme and subsequent laws? What is the basis of law?

Chris
12-30-2012, 12:01 PM
What he is saying, though, is right on.

As we have added more and more 'controls' we have limited access by people who are law abiding.

What has to be found is a way to keep guns from the hands of the "wrong" people, a long list ranging from career criminals, to mental cases to children and yes, illegal immigrants.

Agree, but how?

Regulating the Militia (http://www.nationalreview.com/articles/336529/regulating-militia-kevin-d-williamson?pg=2) (a tongue-in-cheek title) argues the following:


...If we want to reduce the level of criminal violence in our society, we should start by demanding that the police and criminal-justice bureaucracies do their job.... The police function in essence as a janitorial service, cleaning up the mess created in part by our dysfunctional criminal-justice system.

We probably would get more out of our criminal-justice system if it were not so heavily populated by criminals. As I note in my upcoming book, The End Is Near and It’s Going to Be Awesome, it can be hard to tell the good guys from the bad guys:


For more than twenty years, NYPD detectives worked as enforcers and assassins for the Gambino crime family; in 2006 two detectives were convicted not only of murder and conspiracy to commit murder but also on charges related to such traditional mob activity as labor racketeering, running illegal gambling rings, extortion, narcotics trafficking, obstruction of justice, and the like. This was hardly an isolated incident; only a few years prior to the NYPD convictions more than 70 LAPD officers associated with the city’s anti-gang unit were found to have been deeply involved in gang-affiliated criminal enterprises connected to the Bloods street gang....

The Department of Homeland Security has existed for only a few years but it already has been partly transformed into an organized-crime syndicate. According to a federal report, in 2011 alone more than 300 DHS employees and contractors were charged with crimes ranging from smuggling drugs and child pornography to selling sensitive intelligence to drug cartels. That’s not a few bad apples — that’s an arrest every weekday and many weekends. Given the usual low ratio of arrests to crimes committed, it is probable that DHS employees are responsible for not hundreds but thousands of crimes. And these are not minor infractions: Agents in the department’s immigration division were caught selling forged immigrant documents, and DHS vehicles have been used to transport hundreds (and possibly thousands) of pounds of illegal drugs. A “standover” crew — that is, a criminal enterprise that specializes in robbing other criminals — was found being run by a DHS agent in Arizona, who was apprehended while hijacking a truckload of cocaine.

Power corrupts. Madison knew that, and the other Founders did, too, which is why we have a Second Amendment.

IOW, we could be a nation of laws if the justice system upheld the law.

(That's the second half of the article, the first half argues "The purpose of the Second Amendment is to secure our ability to oppose enemies foreign and domestic, a guarantee against disorder and tyranny. ")

Nemo
12-30-2012, 12:40 PM
No, Chris, don't have it right. Under the Constitution there can be no rights independent of law - no rights without law, no rights contrary to law, no rights superior to law. Unto this last, the problem with the concept of natural rights is that it is egocentric; i.e., it places the individual in the center of importance. It assumes, falsely, that man, as Locke espoused, has certain inherent rights; or, as Jefferson phrased it, unalienable rights. However, that is not how things are ordered. There are no inherent rights; there are no unalienable rights; there are only legal rights. The words "inherent" and "unalienable" do not appear anywhere in the Constitution. The framers of the Constitution created a nation of laws and not men. It is the recognition, from the time of Magna Carta to this day, that no person can be above the law; for it is not the individual that is sovereign, it is the law. To say that one has a right to anything need must admit that such right exists by law. Indeed, there is nothing in the varied course of human events, from the moment of life’s conception to the final disposition of one’s mortal remains and property after death, that is not governed by law. Natural rights are a fiction - a philosophical construct - airy nothings. Real rights are legal rights; rights that are provided and protected by law.

countryboy
12-30-2012, 12:47 PM
The Second Amendment does not grant any rights. See United States v. Cruikshank, 92 U.S. 542 (1875). Furthermore, the Second Amendment prohibition against "infringement" does not preclude "regulation." Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute.

Liberal gobbledygook. Lemme guess, the Constitution is a "living breathing document", right?

If one has a right to bear arms, and a "regulation" says he cannot, how is that NOT infringement?

Nemo
12-30-2012, 12:51 PM
It's not gobbledygook. You will find that the Supreme Court decision in District of Columbia v. Heller left all federal gun laws in place. You will also find that your right to have a gun is subject to the laws of the state of your residence.

Chris
12-30-2012, 12:59 PM
No, Chris, don't have it right. Under the Constitution there can be no rights independent of law - no rights without law, no rights contrary to law, no rights superior to law. Unto this last, the problem with the concept of natural rights is that it is egocentric; i.e., it places the individual in the center of importance. It assumes, falsely, that man, as Locke espoused, has certain inherent rights; or, as Jefferson phrased it, unalienable rights. However, that is not how things are ordered. There are no inherent rights; there are no unalienable rights; there are only legal rights. The words "inherent" and "unalienable" do not appear anywhere in the Constitution. The framers of the Constitution created a nation of laws and not men. It is the recognition, from the time of Magna Carta to this day, that no person can be above the law; for it is not the individual that is sovereign, it is the law. To say that one has a right to anything need must admit that such right exists by law. Indeed, there is nothing in the varied course of human events, from the moment of life’s conception to the final disposition of one’s mortal remains and property after death, that is not governed by law. Natural rights are a fiction - a philosophical construct - airy nothings. Real rights are legal rights; rights that are provided and protected by law.

Just another repetition of your claim, no argument.

And you've managed to contradict yourself again: Your first post states "The Second Amendment does not grant any rights." Now you've gone 360 degrees to argue "Real rights are legal rights; rights that are provided and protected by law."

You failed to even try and answer the simple question, what is the basis of law?

The answer requires recognition of the difference between natural and positive law.

Nemo
12-30-2012, 01:02 PM
That's correct. The Second Amendment does not grant any rights. Whatever rights that are secured by the Second Amendment are subject to law.

Chris
12-30-2012, 01:06 PM
Liberal gobbledygook. Lemme guess, the Constitution is a "living breathing document", right?

If one has a right to bear arms, and a "regulation" says he cannot, how is that NOT infringement?

Nemo is committing an anachronism. He is using the modern sense of the word "regulated" when at the time of the founding it meant something else:


The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.

@ The meaning of the phrase "well-regulated" in the 2nd amendment (http://constitution.org/cons/wellregu.htm)

Chris
12-30-2012, 01:10 PM
That's correct. The Second Amendment does not grant any rights. Whatever rights that are secured by the Second Amendment are subject to law.

Of course it's right, The second amendment, a law, does not create the right, it protects/secures a pre-existing right. The right exists without or without the protection.



You continue to fail to address a simple question, what is the basis of law?

Nemo
12-30-2012, 01:19 PM
Again, your right exists by law. It is the law that provides your rights, the law that defines your rights, the law that protects your rights. To say that you have rights without law is simple nonsense. There are no God-given rights, no natural rights, no inherent rights; there are only legal rights. That’s the way it is, the way it must be, and no other way. Quoting John Locke will get you nowhere in court. Without a legal basis for your claim of right, you’re SOL. You will learn for yourself the true nature and source of your rights when you have need to enforce them. God-given rights are only good in heaven; natural rights are no good in court; and in the real world, one need have recourse to the law.

Chris
12-30-2012, 01:39 PM
Again, all you're doing is repeating your claim.

Simple question: What is the basis of law?

zelmo1234
12-30-2012, 01:47 PM
I am not against gun ownership, not at all. What I'm telling you, however, is that your protected right to have a gun is provided by law, which defines that right. That said, if you want less restrictive gun laws, then the last thing you want to do is make a federal case of it, for experience has shown that Congress is obsessed with regulating everything. At least at the state level the people will have more say on the matter.

The problem is that the constitution over rides any state laws, and the second amendment is in fact part of the constitution. So this one is in the hands of the federal government. The court so far has been on the side of the gun owner. But this can change.

The real problem is what are they going to do with the millions of guns that are out there?? It is feel good legislation, much like the social program that doom people to poverty, but were implimented to show compassion

roadmaster
12-30-2012, 01:48 PM
God-given rights are only good in heaven; natural rights are no good in court; and in the real world, one need have recourse to the law. Wrong I won't go against His laws. You give into the government, China would love you.

Nemo
12-30-2012, 01:52 PM
In the United States, the basis of the law is the Constitution, federal statues enacted by Congress, treaties, federal regulations, the decisions of the Supreme Court and lower federal courts established by Congress, and the common law including case law not inconsistent with federal law. In addition, there are the laws established under the constitutions of the several states, their elected legislatures, county and municipal ordinances. In this, you are subject to federal and state law as citizen of the United States and the state of your domicile or residence.

zelmo1234
12-30-2012, 01:52 PM
Again, your right exists by law. It is the law that provides your rights, the law that defines your rights, the law that protects your rights. To say that you have rights without law is simple nonsense. There are no God-given rights, no natural rights, no inherent rights; there are only legal rights. That’s the way it is, the way it must be, and no other way. Quoting John Locke will get you nowhere in court. Without a legal basis for your claim of right, you’re SOL. You will learn for yourself the true nature and source of your rights when you have need to enforce them. God-given rights are only good in heaven; natural rights are no good in court; and in the real world, one need have recourse to the law.

Quoteing Mr Locke might not get you anywhere, but the constitution seem to differ from your basis of fact.

The founding fathers did acknowledge a higher power and that certian rights were granted to the people by the creator. That being that all men wre created equal, the phrase that allow for the abolition of slavery, and the civil rights acts. and that they have the right to Life, Liberty and the persuit of happiness. All others are rights but designed to show what the government can not do!

zelmo1234
12-30-2012, 01:52 PM
Sorry forgot the link

http://www.renewamerica.com/columns/childress/100625

Nemo
12-30-2012, 02:11 PM
No, zelmo1234. The Constitution does not recognize any higher power. It is the Constitution, federal statutes, and U.S. treaties are the supreme law of the land. Const., Art. VI, cl. 2.

roadmaster
12-30-2012, 02:15 PM
No, zelmo1234. The Constitution does not recognize any higher power. It is the Constitution, federal statutes, and U.S. treaties are the supreme law of the land. Const., Art. VI, cl. 2.

We still have freedom of religion not from.

zelmo1234
12-30-2012, 02:21 PM
No, zelmo1234. The Constitution does not recognize any higher power. It is the Constitution, federal statutes, and U.S. treaties are the supreme law of the land. Const., Art. VI, cl. 2.

I guess that I have trouble reading

http://www.renewamerica.com/columns/childress/100625

You see those that are currently trying to make the Churches pay for abortion durgs are not going to be able to ahve it both ways. If a church is just another business, then a nativity scene is just another Chirstmas display. If they are in fact a religious organization, then it is possible that a nativity scene is a religious icon.

So those that do not beleive that founding fathers wrote the constitution to protect religious liberty, are not only twisting the fact, but they are going to suffer a set back on the false doctrine of spearation of church and state.

roadmaster
12-30-2012, 02:27 PM
I guess that I have trouble reading

http://www.renewamerica.com/columns/childress/100625

You see those that are currently trying to make the Churches pay for abortion durgs are not going to be able to ahve it both ways. If a church is just another business, then a nativity scene is just another Chirstmas display. If they are in fact a religious organization, then it is possible that a nativity scene is a religious icon.

So those that do not beleive that founding fathers wrote the constitution to protect religious liberty, are not only twisting the fact, but they are going to suffer a set back on the false doctrine of spearation of church and state.

Yes the non-religious think this way don't they? I don't have to pay for abortions, they can.

Chris
12-30-2012, 02:28 PM
In the United States, the basis of the law is the Constitution, federal statues enacted by Congress, treaties, federal regulations, the decisions of the Supreme Court and lower federal courts established by Congress, and the common law including case law not inconsistent with federal law. In addition, there are the laws established under the constitutions of the several states, their elected legislatures, county and municipal ordinances. In this, you are subject to federal and state law as citizen of the United States and the state of your domicile or residence.

Given the the Constituion is the basis of UU law, what is the basis of that supreme law?

Nemo
12-30-2012, 02:32 PM
See Post# 35, supra. Under the supremacy clause, the Constitution, federal statutes and U.S. treaties are the supreme law of the land. By the way, so are the decisions of the Supreme Court until overruled by subsequent decision of the court, congressional action, or constitutional amendment.

roadmaster
12-30-2012, 02:36 PM
States are going to just go ahead and overrule the courts. We still believe in God and country and what our forefathers stood for. Let the courts control gang violence.:wink:

Nemo
12-30-2012, 02:40 PM
The states do not have the power to overrule the courts. Under Article III, Section 2 of the U.S. Constitution, the judicial power is vested in the Supreme Court, and such other lower federal courts as the Congress may establish, with jurisdiction over cases and controversies arising under the Constitution and substantial cases where there is diversity of citizenship subject to the limitations of the Eleventh Amendment. The Supreme Court is the final arbiter of the interpretation of the Constitution, and its decisions are binding in all states as federal law, which is the supreme law of the land.

roadmaster
12-30-2012, 02:42 PM
The states do not have the power to overrule the courts Things change, go with it.

Nemo
12-30-2012, 02:47 PM
Change is effected through the ballot box, with votes, not guns. Get used to it.

Chris
12-30-2012, 02:53 PM
See Post# 35, supra. Under the supremacy clause, the Constitution, federal statutes and U.S. treaties are the supreme law of the land. By the way, so are the decisions of the Supreme Court until overruled by subsequent decision of the court, congressional action, or constitutional amendment.

That does not answer the question what is the basis of the Constitution?

roadmaster
12-30-2012, 02:54 PM
Change is effected through the ballot box, with votes, not guns. Get used to it.

Well you may have to.

Nemo
12-30-2012, 02:55 PM
You may not.

Nemo
12-30-2012, 03:03 PM
Chris, I'm sure that you well know that the basis of the Constitution were those articles drafted by the delagates for the Constitutional Convention to form the structure of our government of laws, and which was ratified by the several states.

It's simple, really. Once you understand (and accept) the underlying principle of the rule of law, the constitutional provisions are of a piece and make perfect sense; however if you don't understand - and many don't, including the current Speaker of the House of Representatives - (or if you refuse to accept the principle of the priority of the law) then everything will be at odds, and you will have nothing but trouble with the existing order.

roadmaster
12-30-2012, 03:08 PM
You may not.

Correct I won't. Don't like being told what you can and cannot do I see but you wonder why we will not go against His words. I am not worried, you?

Nemo
12-30-2012, 03:14 PM
"His words", roadmaster? Know this: If there is anything that can be gleaned from the intent of the framers of the Constitution, it is that our nation was founded on secular principles and not religious doctrine. The founding fathers well knew that the separation of church and state was the only way to preserve religious freedom. Religious wars had been waged in Europe over its union; and, indeed, some of the first colonists, the Pilgrims, came to America to escape state-sponsored religious persecution. Our right to worship freely, without government interference, is guaranteed by the First Amendment to the Constitution, and not by God. It is time that people of faith reconcile themselves with this fundamental fact.

Chris
12-30-2012, 03:25 PM
Chris, I'm sure that you well know that the basis of the Constitution were those articles drafted by the delagates for the Constitutional Convention to form the structure of our government of laws, and which was ratified by the several states.

It's simple, really. Once you understand (and accept) the underlying principle of the rule of law, the constitutional provisions are of a piece and make perfect sense; however if you don't understand - and many don't, including the current Speaker of the House of Representatives - (or if you refuse to accept the principle of the priority of the law) then everything will be at odds, and you will have nothing but trouble with the existing order.

Ah, so the basis of the Constitution and all susequent US law is men.

You have thus contradicted your opinion. Your logic leads to an absurdity that we are a nation of men and not law.

There must be another basis. Posited law cannot be the basis of posited law.

And that leaves only with natural law.

Nemo
12-30-2012, 03:45 PM
No, you've got it wrong again. What you are referring to is philosophy, e.g., Hobbes, Blackstone, Bentham, Locke, etc. While such ideas have been influential at times, they are not the genesis of our Constitution and the provision for the priority and primacy of the rule of law. Ours is descended of the English tradition and common law beginning with the reign of Henry II, and the signing of the Magna Carta by King John, the Statute of Marborough, the Statute of Wills, the Statute of Elizabeth, the decisional law (even the Code Napoleon adapted in Lousiana). There's nothing natural about any of it.

Chris
12-30-2012, 04:13 PM
No, you've got it wrong again. What you are referring to is philosophy, e.g., Hobbes, Blackstone, Bentham, Locke, etc. While such ideas have been influential at times, they are not the genesis of our Constitution and the provision for the priority and primacy of the rule of law. Ours is descended of the English tradition and common law beginning with the reign of Henry II, and the signing of the Magna Carta by King John, the Statute of Marborough, the Statute of Wills, the Statute of Elizabeth, the decisional law (even the Code Napoleon adapted in Lousiana). There's nothing natural about any of it.

Nemo, you say I'm wrong each time but never show how. All you do is make claims. You provide no arguments.

No, I am not talking about philosophy being the basis of rights or law. And you're right nothing you just posted has to do with natural law.

And no I am not wrong that you are wrong. Let me spell it out for you, let me give a complete argument that demonstrates your claims lead to an absurd self-contradiction. The following 3 claims have been made by you:

(1) We are a nation of laws not men.

(2) The basis of those laws are the Constitution.

(3) The basis of the Constitution is what men wrote.

But (2) and (3) imply we are a nation of men not laws.

And that contradicts (1).

By the logical law of non-contradiction you have argued yourself into an absurdity.


To as you do argue the legal system of posited law as Euclid argued geometry is all well and fine within the confines of a narrow abstract universe of discourse but to call that reality is poppycock.

Nemo
12-30-2012, 05:13 PM
No, Chris, again you've missed the point. Our Constitution provides for a representative form of government. Our laws, which are the basis of our rights, are made by our elected representatives, not by us; and they are enforced by the executive branch of government, not by us; and the laws are subject to judicial review, not by us. The concept of natural rights is a philosophical construct - it is unsupportable - such rights do not exist in the real world other than the jungle. If you want natural rights, go live on an desert island, you can have your fill for you will be a law unto yourself, for yourself, and by yourself. In our established society, rights can only exist by law. That's the long and the short of it. If you can't accept it, you will be at odds with everyone over everything, for everything in this life - everything - is subject to law.

Chris
12-30-2012, 05:27 PM
No, Chris, again you've missed the point. Our Constitution provides for a representative form of government. Our laws, which are the basis of our rights, are made by our elected representatives, not by us; and they are enforced by the executive branch of government, not by us; and the laws are subject to judicial review, not by us. The concept of natural rights is a philosophical construct - it is unsupportable - such rights do not exist in the real world other than the jungle. If you want natural rights, go live on an desert island, you can have your fill for you will be a law unto yourself, for yourself, and by yourself. In our established society, rights can only exist by law. That's the long and the short of it. If you can't accept it, you will be at odds with everyone over everything, for everything in this life - everything - is subject to law.

Those representatives are men, nemo, not angels. Madison, Federalist 51: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

You start at we're a nation of laws not men and once again end up at we're a nation of men not laws.

You've done nothing to extricate yourself from your absurd contradiction.

And now you seem to argue even more absurdly that posited law precedes society.

Chris
12-30-2012, 05:36 PM
For those interested in what I mean by posited law, see the following:


Positive law (lat. ius positum) is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group. Etymologically the name derives from the verb to posit and is unrelated to the more common positive as not negative word usage.

The concept of positive law is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."[1] Positive law is also described as the law that applies at a certain time (present or past) at a certain place, consisting of statutory law, and case law as far as it is binding. More specifically, positive law may be characterized as "[l]aw actually and specifically enacted or adopted by proper authority for the government of an organized jural society."[2]

@ http://en.wikipedia.org/wiki/Positive_law

The laws of the US and even the Constitution itself are posited law. They are as such man-made.

Chris
12-30-2012, 06:00 PM
The phrase a nation of laws, not men is derived from John Adams' "A government of laws and not of men" in his “Novanglus Papers" where he credits the idea to James Harrington who described government as “the empire of laws and not of men” in his 1656 work, The Commonwealth of Oceana, p. 35 (1771):


JANOTTI, the most excellent describer of the Commonwealth of Venice, divides the whole series of government into two times or periods: the one ending with the liberty of Rome, which was the course or empire, as I may call it, of ancient prudence, first discovered to mankind by God himself in the fabric of the commonwealth of Israel, and afterward picked out of his footsteps in nature, and unanimously followed by the Greeks and Romans; the other beginning with the arms of Caesar, which, extinguishing liberty, were the transition of ancient into modern prudence, introduced by those inundations of Huns, Goths, Vandals, Lombards, Saxons, which, breaking the Roman Empire, deformed the whole face of the world with those ill-features of government, which at this time are become far worse in these western parts, except Venice, which, escaping the hands of the barbarians by virtue of its impregnable situation, has had its eye fixed upon ancient prudence, and is attained to a perfection even beyond the copy.

Relation being had to these two times, government (to define it de jure, or according to ancient prudence) is an art whereby a civil society of men is instituted and preserved upon the foundation of common right or interest; or, to follow Aristotle and Livy, it is the empire of laws, and not of men.

And government (to define it de facto, or according to modern prudence) is an art whereby some man, or some few men, subject a city or a nation, and rule it according to his or their private interest; which, because the laws in such cases are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws.

The former kind is that which Machiavel (whose books are neglected) is the only politician that has gone about to retrieve; and that Leviathan (who would have his book imposed upon the universities) goes about to destroy. For "it is," says he, "another error of Aristotle's politics that in a well-ordered commonwealth, not men should govern, but the laws. What man that has his natural senses, though he can neither write nor read, does not find himself governed by them he fears, and believes can kill or hurt him when he obeys not? or, who believes that the law can hurt him, which is but words and paper, without the hands and swords of men?" I confess that the magistrate upon his bench is that to the law which a gunner upon his platform is to his cannon. Nevertheless, I should not dare to argue with a man of any ingenuity after this manner. A whole army, though they can neither write nor read, are not afraid of a platform, which they know is but earth or stone; nor of a cannon, which, without a hand to give fire to it, is but cold iron; therefore a whole army is afraid of one man. But of this kind is the ratiocination of Leviathan, as I shall show in divers places that come in my way, throughout his whole politics, or worse; as where he says, "of Aristotle and of Cicero, of the Greeks, and of the Romans, who lived under popular States, that they derived those rights, not from the principles of nature, but transcribed them into their books out of the practice of their own commonwealths, as grammarians describe the rules of language out of poets." Which is as if a man should tell famous Harvey that he transcribed his circulation of the blood, not out of the principles of nature, but out of the anatomy of this or that body.

@ Oceana (http://www.gutenberg.org/files/2801/2801-h/2801-h.htm).

The rule of law is based on rights. This is clearly stated in the bold red above, as well as in the irony of the bold black text. Emphasis mine of course.


Forgot to add this little bit...


The United States is a nation of laws: badly written and randomly enforced.
~Frank Zappa

Nemo
12-30-2012, 06:45 PM
No, Chris, you are talking nonsense. You have stated your position in an absurd "chicken or the egg" hypothetical, in which you are argue that you have rights that precede law, rights outside the law, rights that trump the law. I challenge you to name one - just one - right that is not subject to law. You can’t, because there is none. Not one.

Chris
12-30-2012, 07:22 PM
No, Chris, you are talking nonsense. You have stated your position in an absurd "chicken or the egg" hypothetical, in which you are argue that you have rights that precede law, rights outside the law, rights that trump the law. I challenge you to name one - just one - right that is not subject to law. You can’t, because there is none. Not one.

Where am I talking nonsense, nemo? Point it out as I have your absurd self-contradiction.

If my saying law comes from rights is an absurd chicken and egg claim then you saying rights come from law is as well, thus you have now put down* your own argument, another self-contradiction.

Are you saying prior to the Constitution men had no rights? That is not what the Declaration and Constitution say.

(* I use put down because you don't present any arguments, just claims and now accusations.)



"I challenge you to name one - just one - right that is not subject to law."

Life, liberty and the pursuit of happiness. They're unalienable. Can't be taken away. They're natural law inherent in who we are as human beings.

Now it is true that government can by coercion subject the exercise of those rights to posited law, but those very notion of subjecting those rights presupposes their pre-existance. The same is true when you say the law protects rights, that presupposes pre-existing rights.

So while your moving the goalposts was clever, even it leads right back to rights being the basis of law.


OK, challenge to you: Slavery is illegal. Why? Simply because the law says so? Or because all men are created with equal rights to life, liberty and pursuit of happiness?

Nemo
12-30-2012, 07:42 PM
No. Your right to life, liberty and the pursuit of happiness (and all aspects of them to the very air you breathe) is subject to law. You have none of these things, that otherwise could be taken away, absent the law; and the violation of which result in their forfeiture under the sanction of the law.

Slavery was made illegal by the Thirteenth Amendment to the Constitution.

Now, I ask you again to name one - just one - right that is not subject to law.

Chris
12-30-2012, 07:59 PM
No. Your right to life, liberty and the pursuit of happiness (and all aspects of them to the very air you breathe) is subject to law. You have none of these things, that otherwise could be taken away, absent the law; and the violation of which result in their forfeiture under the sanction of the law.

Slavery was made illegal by the Thirteenth Amendment to the Constitution.

Now, I ask you again to name one - just one - right that is not subject to law.

Again, nemo, your moving the goalposts was clever, but still fails. What is subject to law are rights, rights that pre-exist. The very sentence you post presupposes rights before law.


And, again, nemo, you simply present no argument. All you do is make claims. You do not justify those claims in any way. You do not counter any arguments I've made. You merely declare I'm wrong and repeat your claim.


I'm curious too, nemo, why you left off your we're a nation of laws not men talking point. It is because history shows the use of it back to the 1700s link rule of law to rights?




Slavery is illegal. Why? Simply because the law says so? Or because all men are created with equal rights to life, liberty and pursuit of happiness?


Slavery was made illegal by the Thirteenth Amendment to the Constitution.

Yes, we all know that, so you're now not even being informative let alone answering. Do you avoid answering because the answer is it is illegal because of rights?

Nemo
12-30-2012, 08:17 PM
"I long to hear that you have declared an independency. And, by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation."
-Abigail Adams to John Adams, March 31, 1776

"As to your extraordinary code of laws, I cannot but laugh. We have been told that our
struggle has loosened the bonds of government everywhere; that children and apprentices were disobedient; that schools and colleges were grown turbulent; that Indians slighted their guardians, and negroes grew insolent to their masters. But your letter was the first intimation that another tribe, more numerous and powerful than all the rest, were grown discontented.– This is rather too coarse a Compliment but you are so saucy, I won’t blot it out.

"Depend upon it, we know better than to repeal our masculine systems. Although they are in full force, you know they are little more than theory. We dare not exert our power in its full latitude. We are obliged to go fair and softly, and, in practice, you know we are the subjects. We have only the name of masters, and rather than give up this, which would completely subject us to the despotism of the petticoat, I hope General Washington and all our brave heroes would fight; I am sure every good politician would plot, as long as he would against despotism, empire, monarchy, aristocracy, oligarchy, or ochlocracy."
Response of John Adams to Abigail Adams, April 14, 1776

___________________

You suggest slavery was made illegal by natural law in the face of the Thirteenth Amendment. (Remember that your advocate for natural rights, Thomas Jefferson, owned over 600 slaves in his lifetime. So much for their natural rights!

You talk of salves, but what about women. What rights did women have when the Constitution was ratified? Women were generally denied basic rights; they could not vote, own property, keep their own earnings, or even custody of their children. Did the founding fathers forget women when they drafted the Constitution? When did women get their rights in the United States? What was the source of those rights? Is there not even now a proposal for an amendment to the Constitution to guarantee equal rights under the law regardless of sex?

I'm still waiting for you to provide one right that is not subject to law.

Chris
12-30-2012, 08:33 PM
You suggest slavery was made illegal by natural law in the face of the Thirteenth Amendment.

No, I did not, nemo. Why are you now arguing strawmen?

I asked why is slavery illegal and suggested is so because of natural rights. This happened by the recognition of men that all men are created equal before the law.

Your straw man shows some desperation on your part, nemo.


You talk of salves, but what about women.

It took a long time for the law to recognize their natural rights as well.

Lack of recognition of natural rights by law or men does not imply they did not exist.



I'm still waiting for you to provide one right that is not subject to law.

Answered.

No rights are subject to law. Search for "subject to law" and you will find not rights but men subject to law. This goes back to Aristotle who argued law should govern and by it meant all men equally, from subject to king, should be subject to law. That is what the rule of law has meant throughout history.

We do not subject rights to law, we subject men to laws based on rights, right to life, liberty and property or pursuit of happiness. It is because of our recognition of rights that we subject men to law.

Why has murder been against the law since time immemorial but in recognition of the right to life. And theft, but the right to property.

From what other basis was Abigail arguing to John but her natural rights, and for what other than recognition of those rights?

zelmo1234
12-30-2012, 10:25 PM
No, Chris, you are talking nonsense. You have stated your position in an absurd "chicken or the egg" hypothetical, in which you are argue that you have rights that precede law, rights outside the law, rights that trump the law. I challenge you to name one - just one - right that is not subject to law. You can’t, because there is none. Not one.


Life!

Nemo
12-30-2012, 10:34 PM
Life? What about abortion laws? I'm sure that you can come up with something more original than the so-called "unalienable" rights.

zelmo1234
12-30-2012, 10:35 PM
No. Your right to life, liberty and the pursuit of happiness (and all aspects of them to the very air you breathe) is subject to law. You have none of these things, that otherwise could be taken away, absent the law; and the violation of which result in their forfeiture under the sanction of the law.

Slavery was made illegal by the Thirteenth Amendment to the Constitution.

Now, I ask you again to name one - just one - right that is not subject to law.

It is interesting that you would put life and liberty under the control of government law?

The resoan I say interesting is it is a way that people precieve their world. In your world, all rights flow from our govenment. And it the view of people of strong faith, they come from God! I can see a lot of your points but to me they seem misguided, But as I think about it, if I did not have faith, I would find it logical that a person could think that way.

But to incinuate that the founding fathers were not influenced by a beleive in a higher power is not really true.

Chris
12-31-2012, 07:38 AM
Life? What about abortion laws? I'm sure that you can come up with something more original than the so-called "unalienable" rights.

Violation of right to life does not invalidate its existence, on the contrary it verifies it. Just like your other examples, slavery, suffrage, what's lacking are not rights, but recognition of them, first by society, and then by lagging law.

Chris
12-31-2012, 07:43 AM
It is interesting that you would put life and liberty under the control of government law?

The resoan I say interesting is it is a way that people precieve their world. In your world, all rights flow from our govenment. And it the view of people of strong faith, they come from God! I can see a lot of your points but to me they seem misguided, But as I think about it, if I did not have faith, I would find it logical that a person could think that way.

But to incinuate that the founding fathers were not influenced by a beleive in a higher power is not really true.

As for higher power, keep in mind, as recorded in the Declaration and Constitution, we the people who created and abide by the Constitution are its higher power and can abolish it. And whether out Creator is the Laws of Nature or Nature's God, there is a higher power still.