Courts ponder the second amendment

[Morrigoon]

In reaction to a DC-area ban on handguns, the courts are now mulling over the "right to bear arms".

http://www.msnbc.msn.com/id/23688073

[innerSpaceman]

Gun rights proponents and the Supremes' apparent pre-judgment on the matter simply baffles me.

If "A well-regulated militia, being necessary to the security of a free state" is a completely meaningless phrase, why is it there? How can it just be ignored, while "the right of the people to keep and bear arms, shall not be infringed" is somehow not to be ignored???

And if you accept the common sense that we cannot simply ignore one part of a single sentence, and fail to ignore the other part of that same sentence, just how do you explain the admonition about a militia? If it's not to have anything to do with the right to bear arms, why is it there in the sentence about the right to bear arms?

It's not further down in a paragraph, it's not a sub-clause. It's right there, the beginning of the sentence. I suppose if Sesame Street had been around in the 18th Century, they could have written the sentence more for 2-year olds. But it's in common English nonetheless ... the right to bear arms by individuals is predicated on the security of a free state relying on a well-regulated militia.

Sheesh.


I love how it takes the Supreme Court to unravel this mystery of the common English language, and how they will conveniently bow to how the majority of modern Americans wish the 2nd Amendment would read instead of how it actually reads.

Gotta love that mob democracy. Much better than the representative government set up by the Constitution. Why not reinterpret all of it by modern mob standards? What fun!

[Strangler Lewis]

Judging from the news reports, it sounds like there are five votes for overturning the DC law. What will be interesting will be the reasoning and what it bodes for other gun control laws. Unless there's a lot of stuff in the debates over the Second Amendment, I would surprised to see them interpret the Amendment as focusing on an individual's right to own guns to protect his home.

E.g., when the militia clause says "free state," does it just mean free from foreign invasion or does it mean free from overstepping by the national government. If so, then states and their citizens should have arms on a par with the national government to repel incursions, which means we all get to own nuclear weapons.

[blueerica]

Commas-schmommas.

:)

[innerSpaceman]

The commas are there for convenience, and do help in comprehending the sentence. But remove them, and the conundrum remains. You cannot simply ignore the part about the militia. Why is it there?


Why doesn't it say, "A man's home being his castle, the right of the people to keep and bear arms shall not be infringed?"


I'll agree with the Strangler that it's unclear as to the purpose of the militia, but it's crystal clear that the right to keep and bear arms has nothing to do with home security.

You could come up with a hundred things that keeping and bearing arms would be good for. 98 of them would make more sense nowadays than to maintain a militia.

But the second amendment says none of those things.



I'm with Obama's Pastor ... God Damn America, God Damn America, God Damn America. What a fuctup place!

[blueerica]

I hope everyone knows I was just trying to be silly.

[innerSpaceman]

Eh, so were Dylan and Kleibold.

[Morrigoon]

Ah, but see the 2nd amendment is there to protect us from people like Cheney, who, but for the Constitution, would probably rather we be in an absolute dictatorship (and he's working on that pesky old Constitution thingy...)

[sleepyjeff]

I once heard that when Madison wrote the amendment he originally meant for it to be placed within the body of the Constitution itself.

Does anyone know where he intended to put it and what clauses came before and after? Knowing that would help with context I'd think.

[Ponine]

I thought as part of that in the initial writing that thought was that it was partly the ability of the people to bear arms, and form an army should the powers that be, or goverment choose to form an army,
and then the constituion would grant the people the power to fight the goverment controlled army.

Which may be the same thing that Stangler is saying, but I guess I dont understand what you are fired up about IsM

[Ponine]

I once heard that when Madison wrote the amendment he originally meant for it to be placed within the body of the Constitution itself.

Does anyone know where he intended to put it and what clauses came before and after? Knowing that would help with context I'd think.

Madison’s original plan was to designate the amendments as inserts between specific sections of the existing Constitution, rather than as separate amendments added to the end of the document.

Hardy, supra at 609 (citing 1 ANNALS OF CONGRESS 707-08 (Joseph Gales ed., 1789)).

Madison did not designate the right to keep and bear arms as a limitation of the militia clause of Section 8 of Article I.
Rather, he placed it as part of a group of provisions (with freedom of speech and the press) to be inserted in "Article 1st, Section 9, between Clauses 3 and 4." Id. (quoting 5 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 186-87 (1905)).

Such a designation would have placed this right immediately following the few individual rights protected in the original Constitution, dealing with the suspension of bills of attainder, habeas corpus, and ex post facto laws.

Thus Madison aligned the right to bear arms along with the other individual rights of freedom of religion and the press, rather than with congressional power to regulate the militia. Id. This suggested placement of the Second Amendment reflected recognition of an individual right, rather than a right dependent upon the existence of the militia.

I wanted a more "impressive" source, but right now thats all I can find. Does that help you?

[Morrigoon]

Wasn't it Jefferson who believed that revolution was necessary once in a while?
Seems to me with an attitude like that, the intent was that the people had the right to arm themselves against their own government should the government ever overstep the bounds of their intended authority. In other words, to prevent a Castro-esque situation.

[innerSpaceman]

What I'm fired up about (heheh, good term, considering) is that people are inventing an unqualified right to bear arms, when the Constitution clearly qualifies it.

Saying the qualification no longer applies does not remove the qualification. If anything, it removes the entire amendment. And thus we have absolutely no right to keep and bear arms.


But you don't get to pick and choose. That's not the way the Constitution works. Despite the Bush Administration's best efforts. :p

[Morrigoon]

Are you sure it's a qualification, and not merely a justification? Perhaps the bit about the militia is intended to explain WHY they cannot repeal this right.

Also bear in mind that part of the intent of maintaining a militia is that all able-bodied men should in theory be familiar/skilled in the handling of such weapons as they might be called upon to use, if ever the militias had to be called up (in other words: if we ever had to draft all our men, or all the men from a particular area, they should know what the heck they're doing, or at least we should make provisions in law that allow the highest likelihood that the militias would be able to recruit a suitable number of able-bodied men who know what the heck they're doing). The alternative being that the militias would have had to recruit a bunch of agrarian yokels, somehow procure arms for said yokels within a reasonable time frame, and then train said yokels in marksmanship from the ground up. I'm sure the idea of ringing the town bell and having all the men grab their weapons and be ready to go in a matter of minutes was far preferable.

[Alex]

I would have no issue at all with completely abolishing the right of private citizens to bear arms (though maybe we could let people rent certain rifles them at the government run liquor store for hunting game).

There is no reason, beyond killing another human being for the existence of handguns. And no reason for a gun to be able to fire more than 3 bullets in a minute.

And yes, when guns are outlawed only outlaws will have guns. But when there is no legal reason for the manufacture or importation of guns then those criminals are going to have to spend a lot of money creating a manufacturing infrastructure.


But as much as I'd be ok with that the first step is to amend the constitution rather than just render the 2nd amendment invisible through judicial fiat.

[Capt Jack]

I'm sure the idea of ringing the town bell and having all the men grab their weapons and be ready to go in a matter of minutes was far preferable.

it still is

[innerSpaceman]

So Morrigoon, are you suggesting that, since militia are no longer feasible, the 2nd amendment suggests we can indeed repeal the right to bear arms?

Because, funny, that's precisely what I'm suggesting. Your justification argument leads to the same result as my qualification one.



Alex's argument that there's no purpose for handguns but to kill humans misses, heheh, the mark. One of the claims of legitimacy for the right to bear arms is self-defense or home-defense, where indeed the aim is to kill another human being (ostensibly kill or be killed).

That's perhaps a legitimate aim (oh the puns keep coming). Or perhaps not. But it's got nothing to do with the second amendment, which I repeat says nothing about Man's Home being His Castle or addresses any question of self-defense.

The subject of the amendment is militia, and there's no other justification given for the right to keep and bear arms.

So fine ... call it a justification. What difference does that make? You're still stuck with the militia part of the single sentence. How can it be ignored?

[Alex]

I recognize that my view misses the point of the second amendment. I also think my view is right. While I recognize a right a fundamental (inherent, not constitutionally granted) to defend your home I don't extend that to a right (constitutionally granted) to defend your home by shooting people. So I'm all in favor of explicitly replacing the second amendment so that my view would be constitutional.

As it is now, I recognize that I am constitutionally blocked from legislatively or judicially reaching my preferred state of being.

[innerSpaceman]

oh, i quite agree with you on this one, Alex.


Though i admit i'm not quite sure how you could defend yourself or another person without the potential of killing the attacker.

[CoasterMatt]

I want a piranha filled moat, and highpressure air cannons to deal with solicitors.

[Morrigoon]

iSm: perhaps we have grown too comfortable in the peace we have maintained for so long. However, if WWII had truly come to our doorstep in the way it came to those in Europe in the 1940's, we wouldn't even be discussing the concept of banning personal firepower, except to say how ridiculous a concept banning it would be.

Do we have "everyman" militias today? Not so much. Should we have the capability of forming them to protect true freedom from corrupt governments of our future? Abso-fvcking-lutely. Unless you like life under Dick Cheney.

[Alex]

oh, i quite agree with you on this one, Alex.


Though i admit i'm not quite sure how you could defend yourself or another person without the potential of killing the attacker.


Oh, I'm not saying you can't kill them, I just don't think that this extends to be granted every possible means of doing so. And if it were possible to somehow restrict non-hunting gun use to just that instance than I'd be willing to consider carving out an exception.

[sleepyjeff]

I wanted a more "impressive" source, but right now thats all I can find. Does that help you?

Yes, that was very helpful....thankyou:)

[Strangler Lewis]

To say that it was originally intended to be in article I, section 9 does not say much. That section is not about individual rights. It's about preventing Congress from engaging in the types of overbearing abuses of power vis a vis the states that are catalogued in the dull part of the Declaration of Independence. This arguably suggests that part of the concern of the Second Amendment was ensuring that states could protect themselves against a tyrannous federal government.

However, unless you want to say that, as with most but not all of the Bill of Rights, the Second Amendment was incorporated through the Fourteenth Amendment (which limits state action) to apply to the states, then states would still have the right to regulate gun ownership. Since the District of Columbia is now self-governing, it should as well. Thus, while the federal police cannot break down our doors to confiscate our nuclear weapons, the state police can.

It would be a little ironic if the Court held that the Second Amendment applied to the states through the Fourteenth Amendment since that amendment was enacted in the aftermath of an armed secession.

[innerSpaceman]

Morrigoon, I don't know what you're on about. Street Gangs know all about firearms, but they are not ready to fight off an invading army. Oh, perhaps they'd be better at it than I would, but that doesn't make them battle-ready.

We have a volunteer army that leeches from the bottom rungs of society, where we keep the disposable humans.

Training is needed to fight a war, whether an invasion of our shores or, of course, if we don't want to go back more than a hundred and fifty years, our invasion of other shores.

It's ludicrous to pretend that anyone who can shoot a gun is ready to engage in battle.



In any case, since there are no militia and there's near zero chance of the citizenry keeping weapons capable of fighting off modern armies, especially that of the United States, the rationale for the right to bear arms which you are supporting, and which is the ONLY rationale in the 2nd amendment, is patently absurd.

[Boss Radio]

At the time of the original writings, the weapon of choice was a single-fire musket.

I think that mmeans that everyone is constitutionally entitled to own a single-fire musket.

[Morrigoon]

Or whatever grade of weaponry our military is currently using. Depending on how you wanna read that ;)

[innerSpaceman]

So if the choice is thus between nuclear weapons and the single-fire musket, which would you, Morrigoon, sitting on the Supreme Court, grant to all Americans?

[Morrigoon]

Hahah... touche.

But I don't expect the American government to use nukes on its own people in an oppression situation. Not that I expect our government to suddenly turn around and oppress us, but I have a strong feeling that the intent behind the amendment had to do with the people's power to maintain their hard-won freedom, even if from their own government. So perhaps what should be considered is what level of weapon would be likely to be used by a government on its own people?

Understand that I discuss this academically. Myself, I choose not to own a firearm. But I feel that by maintaining my right to do so, I help guarantee that I'll never wish I did.

[Strangler Lewis]

Hahah... touche.

So perhaps what should be considered is what level of weapon would be likely to be used by a government on its own people?



Secrecy and misinformation?

[Capt Jack]

I was thinking economy and propoganda

[Morrigoon]

SL: Apparently I have to spread it around first, so visible mojo to you. That made me laugh.