Courts ponder the second amendment

[Ponine]

Originally Posted by 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.

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.

[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]

Originally Posted by Morrigoon

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.