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Forums - Politics Discussion - NYT: Let’s Give Up on the Constitution

By the way, I've read the federalist and anti-federalist papers many times, and can certainly say that the federalists and anti-federalists both believed in such a philosophy; they just weren't in agreement on the restrictions.



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I am liberal in most respects, but in matters dealing with the constitutions I am a strict conservative. If we don't have the constitution, what makes America America?



Aielyn said:
And yes, obviously a new constitution would need to be written. When I said the constitution was outdated, I mean the specific one, not constitutions in general. And along the way, yes, there'd need to be a dissolution of the federal government, temporarily.

Oh by the way, I agree with the idea that we should replace our constitution, for other reasons than you likely do,  but I'm too afraid that the state legislators can be bought out by corporations, something which didn't exist in the first constitutional conventions. 



17th-century English philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity." Another 17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell governed republic, argued for level human basic rights he called "freeborn rights" which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.

http://en.wikipedia.org/wiki/Natural_and_legal_rights



kumagawa said:
Kasz216 said:
Soleron said:
I wish we had a Constitution like yours. It's worth keeping for the First Amendment alone.

Yes, the US government regularly ignores it, and it has many other problems besides that. Getting rid of one major protection people have from government overreach is not a solution though.

lol at holding up Britain as an example of good democratic process. There is no check on passing what the Prime Minister wants passed other than media whining. Unlike the US, individual members of the legislature are not free to act and can't effectively block anything.


The UK is afterall the place where you can be jailed for angry tweets.

 

Yes it's only the UK that arrests people for tweets the USA has never done so.  Oh wait!


Last Monday, two British tourists landed at Los Angeles International Airport (LAX) and were greeted with handcuffs. The reason for their detainment did not stem from inappropriate behavior during their flight to the U.S. Rather, Homeland Security had flagged two of the male tourists' tweets leading up to his trip as potential threats to America.

http://laist.com/2012/01/30/international_twitter_fail_british_tourists_arrested.php


Except they weren't arrested.  There is a difference between questioning and an arrest.



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sc94597 said:
I didn't say (or mean if I did say it)  "the right to bear arms" is inherent, it's just the only means to secure the inherent right to self-defence. It was considered a duty by the government, and the right to own property of any kind is also an inherent right. So it's two-fold and compacted.  Also the distinction between a right and privelege must be made. A person can survive happily without the realization of priveleges. This is not the same for rights. They're inherent, because all people are entitled to them and strive for them. This is including things like  liberty, freedom, life, property, happiness, etc, etc. Without them, the government isn't acting in the interests of the entire people, but rather some majority or even minority, and should be abolished. Privileges on the otherhand are given by the government to enable certain freedoms more efficiently. An example would be taxing to build roads and transportation, or funding research. This is the debate of negative vs. positive liberty. Both are important, but without negative liberties people will have less freedom to make their lives better through their own actions and are dependent on government to change things, which is bad because the goverment isn't as efficient nor as interested in everyone's problems. While positive liberties are advantages, yes, but certainly one can live a happy life without them, yet they're necessary for structural improvement. One shouldn't have to give up negative liberties to obtain positive liberties, and that is important to understand.

And it is impossible to remove these rights. The government can take the means to "self-defence" such as guns, but they can't take the urge of all human beings to pursue it. They can take the means to free-speech and freedom of expression, but they can't take the urge of all human beings to pursue it. It's this pursuit that makes it an inalienable right. Tyrannical governments ignore this fact and take away the means to realize these rights, but they don't take away the human despair which comes with this oppression. This isn't even a debate in the United States, so it isn't a problem.

edit: The last paragraph is substantiated by the absence of outright slavery in free societies, by the way. It was learned that slaves always rebel.

I don't see why there is an inherent right to self-defense, either, or an inherent right to own property. These are things that society has decided upon as "rights", but it is entirely possible to imagine a society in which such rights do not exist. Therefore, they are not inherent rights. And by the way, not all people strive for all of the things you listed as "inherent" - there are plenty of people out there who are strict pacifists, who believe that "Self-defense" in any form other than retreat is wrong. There are plenty of people out there considering suicide - they certainly aren't striving for life.

And again, it's a question of what society considers to be rights, there's no magical force making something an absolute right. The closest you can get is what I'd call "natural rights" - rights which form in just about every successful society.

You seem to think that "right" means "things that people always want". Most people want some level of power - few like feeling powerless. Does that make power a right? No, of course not, that would be ludicrous. The vast majority in America want god to exist - that doesn't make god's existence a right. Rights are things that society has chosen as important things that make that society better. And this is why those rights get codified into constitutions. In Islamic countries, many consider women being properly veiled to be something that makes society better - in their view, the right to not be exposed to an unveiled woman is greater than the right of the woman to wear what she wants. In our society, a similar standard applies to clothes covering genitalia - the right of people to not have to look at your genitalia overrides the right of you to wear what you want. Now, every person wants to be able to wear whatever clothes they like... why is this not an "inherent right"?

I also can't help but draw attention to your use of the phrase "free societies". The very fact that you can use that term proves that you are wrong. Even today, slavery exists in many countries, sadly. And economic slavery exists in America, too (note: I'm not talking about the cranky, conspiracy theory crap, but actual economic slavery - people forced to do demeaning and disgusting tasks because the only alternative is starvation).

Oh, and by the way - when a society grants rights and doesn't attach responsibilities to those rights, things become problematic. In most free societies, there is a right to freedom of movement - you can go essentially where you please (within limits). But if you commit a crime, you lose that freedom. It is not an inherent right, it is a right that can be taken away should you fail in your responsibility - in this case, the responsibility to not commit crimes. Every right except the right to life should come with a responsibility that means that the right may be taken away if the responsibility is not satisfied. Why is the right to life different? Because it's the most fundamental one for the functioning of society.

Anyway, there's a big difference between "you have a right to defend yourself" and "you have a right to own a gun" in any case. You can defend yourself without a gun. Guns are made to kill, not to defend. And if you pay close attention, the constitution wasn't granting the right to bear arms to permit self-defense within the country. It was rather explicit - it was to permit defense of country from those who might invade. In other words, it was permitting a reserve army - also known as a "well-regulated militia" (hence the use of that term in the amendment).



Aielyn said:

And if you pay close attention, the constitution wasn't granting the right to bear arms to permit self-defense within the country. It was rather explicit - it was to permit defense of country from those who might invade. In other words, it was permitting a reserve army - also known as a "well-regulated militia" (hence the use of that term in the amendment).

If you have an anti-gun agenda and ignore all context, then sure. However, it is abundantly clear that people of the time interpreted the right to firearm ownership as being undivorceable from one's right to self-defense against both brigands and tyrants.



badgenome said:
If you have an anti-gun agenda and ignore all context, then sure. However, it is abundantly clear that people of the time interpreted the right to firearm ownership as being undivorceable from one's right to self-defense against both brigands and tyrants.

I'm sorry, but who's ignoring context?

I read those arms-rights provisions in the various state constitutions and the conventions, and see a repeating theme: "defense of a free state" or "defense of a free government". Some even explicitly make it clear that the well-regulated militia was intended as a way to avoid having a standing army during a time of peace. In other words, a reserve force. Just as I said. A number of them even explicitly use the phrasing along the lines of "the military should be subordinate to the civil power" - in other words, the civil government should be under the control of the militia.

And I'll remind you that, in those days, there was no such thing as a police force - which, one could argue, is literally a "well-regulated militia that is subordinate to the civil power".

It is abundantly clear that the people of the time were concerned with protecting their nation and setting up their society - the fear of tyrannical government was clearly in the minority with regards to the second amendment.

And shock horror - when you go to a site run by the executive vice president of the NRA, talking about the second amendment (which it refers to as America's "first freedom" - remarkable, given that the first amendment lists off a heap of freedoms), you get a select listing of historical newspaper fragments in favour of the NRA's interpretation. I'm sure he made absolutely sure to provide a representative sample, and it's just that the vast majority of writers back then interpreted it the way the NRA wants.

And I'm sure that, when it truncates its references, that it hasn't at all altered the meaning, like "A free people ought ... to be armed ...". Yes, I'm sure that it couldn't have said something like "A free people ought not find it necessary to be armed except in defense of their nation." (not saying that's what it really said, just making the point that the truncation is suspicious, given how they had plenty of space to include the entire sentence).



Aielyn said:

I'm sorry, but who's ignoring context?

I read those arms-rights provisions in the various state constitutions and the conventions, and see a repeating theme: "defense of a free state" or "defense of a free government". Some even explicitly make it clear that the well-regulated militia was intended as a way to avoid having a standing army during a time of peace. In other words, a reserve force. Just as I said. A number of them even explicitly use the phrasing along the lines of "the military should be subordinate to the civil power" - in other words, the civil government should be under the control of the militia.

And I'll remind you that, in those days, there was no such thing as a police force - which, one could argue, is literally a "well-regulated militia that is subordinate to the civil power".

It is abundantly clear that the people of the time were concerned with protecting their nation and setting up their society - the fear of tyrannical government was clearly in the minority with regards to the second amendment.

And shock horror - when you go to a site run by the executive vice president of the NRA, talking about the second amendment (which it refers to as America's "first freedom" - remarkable, given that the first amendment lists off a heap of freedoms), you get a select listing of historical newspaper fragments in favour of the NRA's interpretation. I'm sure he made absolutely sure to provide a representative sample, and it's just that the vast majority of writers back then interpreted it the way the NRA wants.

And I'm sure that, when it truncates its references, that it hasn't at all altered the meaning, like "A free people ought ... to be armed ...". Yes, I'm sure that it couldn't have said something like "A free people ought not find it necessary to be armed except in defense of their nation." (not saying that's what it really said, just making the point that the truncation is suspicious, given how they had plenty of space to include the entire sentence).

It was perhaps a minority concern compared to the prospect of further war with Great Britain, but you can't merely handwave away the writings of Jefferson, Madison, and others on the matter, however convenient that might be. The reason there was such a great deal of concern about the dangers posed by a permanent standing army was precisely because the possibility of tyranny weighed on their minds. That is why the right of gun ownership was recognized all the way down to the individual level, so that no one has a monopoly on the ability to inflict violence. It provides for checks and balances on force and the tempetation to use it, just as the founders built a system of checks and balances into the federal government itself.



Aielyn said:

I don't see why there is an inherent right to self-defense, either, or an inherent right to own property. These are things that society has decided upon as "rights", but it is entirely possible to imagine a society in which such rights do not exist. Therefore, they are not inherent rights. And by the way, not all people strive for all of the things you listed as "inherent" - there are plenty of people out there who are strict pacifists, who believe that "Self-defense" in any form other than retreat is wrong. There are plenty of people out there considering suicide - they certainly aren't striving for life.

And again, it's a question of what society considers to be rights, there's no magical force making something an absolute right. The closest you can get is what I'd call "natural rights" - rights which form in just about every successful society.

You seem to think that "right" means "things that people always want". Most people want some level of power - few like feeling powerless. Does that make power a right? No, of course not, that would be ludicrous. The vast majority in America want god to exist - that doesn't make god's existence a right. Rights are things that society has chosen as important things that make that society better. And this is why those rights get codified into constitutions. In Islamic countries, many consider women being properly veiled to be something that makes society better - in their view, the right to not be exposed to an unveiled woman is greater than the right of the woman to wear what she wants. In our society, a similar standard applies to clothes covering genitalia - the right of people to not have to look at your genitalia overrides the right of you to wear what you want. Now, every person wants to be able to wear whatever clothes they like... why is this not an "inherent right"?

I also can't help but draw attention to your use of the phrase "free societies". The very fact that you can use that term proves that you are wrong. Even today, slavery exists in many countries, sadly. And economic slavery exists in America, too (note: I'm not talking about the cranky, conspiracy theory crap, but actual economic slavery - people forced to do demeaning and disgusting tasks because the only alternative is starvation).

Oh, and by the way - when a society grants rights and doesn't attach responsibilities to those rights, things become problematic. In most free societies, there is a right to freedom of movement - you can go essentially where you please (within limits). But if you commit a crime, you lose that freedom. It is not an inherent right, it is a right that can be taken away should you fail in your responsibility - in this case, the responsibility to not commit crimes. Every right except the right to life should come with a responsibility that means that the right may be taken away if the responsibility is not satisfied. Why is the right to life different? Because it's the most fundamental one for the functioning of society.

Anyway, there's a big difference between "you have a right to defend yourself" and "you have a right to own a gun" in any case. You can defend yourself without a gun. Guns are made to kill, not to defend. And if you pay close attention, the constitution wasn't granting the right to bear arms to permit self-defense within the country. It was rather explicit - it was to permit defense of country from those who might invade. In other words, it was permitting a reserve army - also known as a "well-regulated militia" (hence the use of that term in the amendment).

 

So a government can take away the necessity of survival and to defend yourself? I suppose if they kill you, yes. Now the axiomatic process for which the founding fathers developed this concept of natural rights was religion, but it still holds with Darwinian theory and the motivation of survival. This basic axiom that all want to survive substantiates the case of self-defence and hence you can derive even more rights from this principle. Since this is a representation of nature, it is hence a natural right, of course not a natural law. 

And no, I don't think right means "things people want." That implies its a conscious choice. Rights are something inherently present in the human psyche, or at least a normal human psyche. It is a subconscious phenomenon. In order to survive you must be able to own things, and that substantiates the right to ownership. In order to survive you must be able to defend yourself against somebody who is trying to kill you. I can assure you a pacifist isn't going to sit there and be killed, he or she will fight for his life. In order to not commit suicide you must be happy, or at least be able to pursue happiness. The exception is if you're insane. These are the three descriptions of inalienable rights of Natural law in the United States. Hence a government can take the ability to pursue the right of survival away, but people will try to obtain that right no matter what. While with a privelege a government can take or give  it how they choose. Even in the Middle East you see people try to fight for freedom and this has been historically true, throughout all times. 

As for my use of free societies, I imply that there isn't a moral system developed in these countries, and hence freedom which is not an inalienable right is taken. Yet, survival, self-defence, liberty, and property are all concepts people hold on to. Even in communist countries people still owned things whether or not the goverment restricted it. Yes, they were imprisoned and the things were taken away, but they still owned them and took these things regardless of the society or governments stance on it. No society can restrict this. Hence, it is inalienable. 

Here are some quotes by the founding fathers on the second ammendment. 

"...to disarm the people - that was the best and most effectual way to enslave them." (George Mason, 3 Elliot, Debates at 380)

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison, The Federalist Papers #46 at 243-244)

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States" (Noah Webster in 'An Examination into the Leading Principles of the Federal Constitution', 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))

"...if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" (Delegate Sedgwick, during the Massachusetts Convention, rhetorically asking if an oppressive standing army could prevail, Johnathan Elliot, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol.2 at 97 (2d ed., 1888))

"...but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights..." (Alexander Hamilton speaking of standing armies in Federalist 29.)

"I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426)

"The Constitution shall never be construed....to prevent the people of the United States who are peaceable citizens from keeping their own arms" (Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87)

 

I can provide countless more. 

 

 

Edit: Oh and how do you defend yourself against a gun without a gun?