[wat0n]

That's fine and dandy but your position was, "if the state apparatus does not protect you then you effectively don't have a right to life or security, . . . "

That is an absolutely true statement, that government has chosen to declare its "protection" is fulfilled with a general obligation to society at large, either with judicial decisions or expressly in statute, means that "you", as an individual, effectively don't have an enforceable right to life or security, . . .

California's Government Code §845 is exemplary:

"Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service."

My primary reason for pointing out this often overlooked principle is law, is anti-gun people often argue incorrectly, that my right to own a gun is trumped by their "right to be safe".

.

OK, that's a fair caveat. But it's not outright in contradiction with what I meant there.

And more generally, as you said, the government will not be held liable if statute doesn't say so. That means that, natural rights or not, you effectively don't have rights that are not set by the law. Ius naturalis is useful, however, because it provides a reason for the legislator to legislate to defend some rights many people may regard as basic or essential.

[Abatis]

In practice, 'it' is bollocks!

In a revolution, you are lucky if 30% of the population rises. So any government will argue it has a legitimate right of collective self-defense to protect the other 70% from the People.

Well, we Americans are 1 for 1 "in practice" and it has been said that 3% of the population supported kicking the English in their bullocks and yet, the Brits went of clutching themselves and singing soprano.

As it stands now, 80 million armed American citizens (who own 400+ million guns) outnumber the nation's active duty and reserve forces by a ratio of about 30 armed citizens against each "soldier".

Just as an aside, to examine the tactical reality, it is worthy of noting that at the height of the Iraq War, estimates of the number of Iraqi insurgents ranged between 8000-20,000 (US) up to 40,000 (Iraqi intelligence). With 160,000 troops in country, US troops enjoyed at worst a 4 to 1 advantage and at best a 20 to 1 advantage . . . and in the opinion of many we were in a quagmire and losing.

What would the reality have been if there were 5+/- million insurgents opposing our 160,000 troops (The US's current 30-1 ratio), and many of the insurgents were very familiar with American heavy weapon platforms and endeavored to seize and offensively use those weapons instead of just blowing themselves up?

Who's bullocks?

[late]

Who's bullocks?

It works every time.

Something about delusional Rambo fantasies just breaks me up.

[Abatis]

And more generally, as you said, the government will not be held liable if statute doesn't say so.

More likely it is a judicial decision that establishes the rule. The Supreme Court has held:

• The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf... it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty - which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means. -- DESHANEY v. WINNEBAGO CTY. SOC. SERVS. DEPT., 489 U.S. 189 (1989)

That means that, natural rights or not, you effectively don't have rights that are not set by the law.

I guess it is good for the US that is what we have, affirmed and affirmed again and again since the nation's establishment:

• The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution. . . VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

• The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, . . . ROBERTSON v. BALDWIN, 165 U.S. 275 (1867)

• Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted. BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)

• The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights. UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956)

And specifically for the right to arms, Cruikshank, Presser and Heller:

Supreme Court, 1876: "The right . . . of "bearing arms for a lawful purpose" [that of armed self-defense in public from the KKK by former slaves in Louisiana] . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . ."

Supreme Court, 1886: ". . . the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . . "

Supreme Court, 2008: " . . . it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in . . . 1876, “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . . "​

Ius naturalis is useful, however, because it provides a reason for the legislator to legislate to defend some rights many people may regard as basic or essential.

Especially so when the protection of the citizen's inherent rights is the foundation for government's existence!

.

[wat0n]

@Abatis I don't disagree with your points there. But as you have shown, the SCOTUS will often refer to statute or common law to argue about the existence of a right and the corresponding government liability.

And yes, in the US owning a gun is a right - but it's not unlimited. It can be regulated and limited, and there's plenty of precedent to that effect.

[Abatis]

It works every time.

Something about delusional Rambo fantasies just breaks me up.

The complete lack of any factual, logical, historical or legal rebuttal to what I said is noted.

Have you had your Pseudobulbar affect diagnosed or are you just suffering in silence?

[late]

The complete lack of any factual, logical, historical or legal rebuttal to what I said is noted.

I had no idea your fantasy life needed rebuttal.

[ingliz]

@Abatis

Are you saying 'The People' need only constitute 3% of the population; are the other 97%, who do not support your revolution, not the 'The People' too?

And if they are are, why do their wishes not count?

A silly hypothetical to make my point.

If 5 million Moslems revolted, are they 'The People', and if they won, would it be legitimate to call the US an Islamic state when 70% of the population are church-going Christians.

[Abatis]

And yes, in the US owning a gun is a right - but it's not unlimited.

I do not argue the right to arms is absolute or unlimited; no right is absolute in an ordered society.

It can be regulated and limited, and there's plenty of precedent to that effect.

The room that government has to operate in is what is very limited. The problem is that so much of the precedent upholding / sustaining gun control laws (and this is mostly a condition in the lower federal courts and state courts) is infirm. It rests on legal theories that are now invalid. Beginning in 1942, lower federal courts inserted the "militia right" and "state's right" interpretations of the 2nd Amendment into their decisions. This was intended to extinguish 2nd Amendment claims by citizens challenging gun laws and it worked well for some 66 years. Of course, a lot of "precedent" has stacked up over those years in those lower courts, building upon each other but not attached to the Constitution. Let's be clear, those lower court decisions are not "precedent" for the Supreme Court.

In 2008, SCOTUS reaffirmed their longstanding individual right doctrine and invalidated dozens of lower federal court decisions that have upheld hundreds of gun control laws and been cited to uphold thousands of state and local laws.

Heller was actually a warning to states and cities to rework their laws and reset them (if possible) on constitutionally solid ground because when the tidal wave of challenges come, vast swaths of gun control laws are going to be cast aside.

States with no right to arms provisions in their state constitutions, (NY, NJ, MD, CA), are especially vulnerable. They never developed a sophisticated legal framework testing their laws against their own constitutional rights protections, they believed anything the legislatures wanted to do was fine and just lazily relied on those lower federal court "collective right" decisions (now invalid) to uphold their laws (and they foolishly thought the 2ndA would never be incorporated under the 14th Amendment).

Their entire schemes of gun control are going to be wiped away . . . Much of the "precedent" you see is a mirage.

[Abatis]

I had no idea your fantasy life needed rebuttal.

I made no fantastical claims; I made no statements that an insurgency /revolution is desirable or even has any chance of success. All I have stated are facts as to history (Madison's ratio -- "standing army" = 1% of population, armed citizen militia = 25 times the standing army) and how that still aligns with today, even expanding a bit to 30 armed citizens for every "soldier" (but hey, we are a bunch of gun nuts!).

I also related how effective rag-tag unorganized militia like the Iraqi insurgents, can arguably give a technologically advanced military real obstacles, while being outnumbered in the reverse of US citizens, 20 soldiers to 1 insurgent.

So I understand why you need to characterize my statements like you do and I also understand why you will not attempt to debate me. Like a pigeon playing chess, you strut around, knock over the pieces and declare victory, well, now you can fly off a winner!

.

[late]

I also related how effective rag-tag unorganized militia like the Iraqi insurgents, can arguably give a technologically advanced military real obstacles

If there was a real threat, you'd be up against snipers, drones, and attack helicopters. Middle aged americans going up against that in their little Rambo outfits.

Breaks me up, every damn time.

[Abatis]

@Abatis

Are you saying 'The People' need only constitute 3% of the population; are the other 97%, who do not support your revolution, not the 'The People' too?

It was a comment about the Revolutionary War, it is commonly said (with dubious veracity) that only 3% of colonists supported declaring independence from England and engaging in any conflict to enforce that decision.

Whatever it was it wasn't a majority.

[Abatis]

If there was a real threat, you'd be up against snipers, drones, and attack helicopters. Middle aged americans going up against that in their little Rambo outfits.

Breaks me up, every damn time.

[Abatis]

So, who here believes an "assault weapon" ban would be deemed constitutional?

I say no, absolutely not!

I argue of all types of guns available to civilians today, semi-auto military style guns (and their standard capacity magazines) enjoy the highest level of constitutional protection under the 2nd Amendment.

[ingliz]

Whatever it was, it wasn't a majority.

So, let's get this straight. You, in essence, when you boil it down, after all your blather, are a nonsense on stilts, to quote Bentham, might makes right Hobbesian?

* Bentham's Anarchical Fallacies

[Abatis]

So, let's get this straight. You, in essence, when you boil it down, after all your blather, are a "Might make Right" Hobbesian?

But the question is, a majority of what? All persons or only males, or is it only those with the franchise, or is it only those who are actually armed?

I've already stated what Madison considered the percentage capable of bearing arms* (and fighting a national army in the devotion of a tyrant) . . . So is it your argument that if 25% of the population turn-out to fight, that is Hobbesian rather than Lockean?

This discussion is an angels dancing on the head of a pin debate and a derail.


* Federalist 46, Madison (emphasis added):

• Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

[ingliz]

Madison

But you are not talking about militia in support of state governments. You have said all militia, even those dubbed terrorist organisations by state and federal government, are legitimate and can legitimately overthrow a state or federal government by right.

That sounds like a Hobbesian position to me.

[Potemkin]

But the question is, a majority of what? All persons or only males, or is it only those with the franchise, or is it only those who are actually armed?

Only those who are actually armed would matter in any insurrection or revolution or civil war. Power grows from the barrel of a gun.

[annatar1914]

Only those who are actually armed would matter in any insurrection or revolution or civil war. Power grows from the barrel of a gun.

@Potemkin ;

Exactly so. And one does not have to be a Maoist to see that, since people at least as far back as St. Augustine of Hippo were saying pretty much the same thing;

Men institute societies so that most people get something of earthly goods, while some get much more, in order that the war of all against all stops as nobody gets anything from that. Were there no law and order, people would quickly exterminate one another if they could.

What I have been trying to do on this thread, bringing up the ''right of revolution'' implicit in the 2nd Amendment, is to make light of those hypocrites who want to deny that right in order to have more for themselves and their kind, but don't have the guts to just come out and say it.

[Abatis]

But you are not talking about militia in support of state governments.

In that example it is in support of the state governments, in the state's opposition to a federal government that has violated the principles of is establishment.

You have said all militia, even those dubbed terrorist organisations by state and federal government, are legitimate and can legitimately overthrow a state or federal government by right.

The hinge point is the federal government becoming illegitimate, thus citizen action throwing it off is legitimate.

That sounds like a Hobbesian position to me.

I suppose such a conclusion would be possible for someone who can't differentiate Lockean and Hobbesian principles and is determined to pound a square peg in a round hole, excluding from consideration all indications that it won't fit.